The Merits of the British Red Lines on the EU Constitution

Written by Andrew Duff MEP and published in Financial Times Online - www.ft.com on Fri 21st May 2004

European Union foreign ministers are to meet again this Monday to tackle the draft constitution. On display once again will be their uncertain grasp of the more complex dossiers, the variable quality of their individual contributions and the poverty of their overall ambition. Those who have form on the constitution include Joschka Fischer, a member of the Convention that drew up the constitution, and Michel Barnier, a fellow conventionnel but also a former European Commissioner. Those who lack form include Jack Straw. Mr Straw is a veteran of nothing except British Labour party politics. Like most of his monoglot nationality, he is a Westminster obsessive with no first-hand knowledge or apparent interest in things European. Mr Straw is therefore easy meat for the cabal of deeply conservative and pro-American civil servants that have been allowed, since the days of Margaret Thatcher, to colonise Whitehall.

Recent media comment has exposed the widespread vexation among Mr Straw's ministerial colleagues about the endless repetition of the notorious British tactic of opposing European integration at each stage of every negotiation. He has capably assumed the mantles of Peter Hain and Gisela Stuart who in the Convention, batting smoothly for Britain, were suspected of being fickle.

Fundamental rights

What has not been thoroughly exposed, however, is the very feebleness of the UK arguments that lie behind their blessed 'red lines'. Take, for example, the Charter of Fundamental Rights, which is set to become binding as Part Two of the constitution. The Labour government, encouraged by the CBI, complains that the Charter will give the EU carte blanche to dismantle Thatcherite trade union legislation. In fact, the Charter's field of application is restricted to the competences of the Union (Article II-51.2); and its judicial scope is limited to laws and executive acts of the EU and to acts of member states when implementing EU law (II-52.5). The right to strike is recognised 'in accordance with Union law and national laws and practices' (II-28). The Union is competent only to 'support and complement the activities of the Member States' in the field of industrial relations (III-104.1); and EU legislation in this area has to be adopted by unanimity in the Council (III-104.3).

Financial system and budgetary procedure

Take, for example, the financial system of the Union. Here the Convention reached another careful compromise, a package of proposals which extended the budgetary powers of the European Parliament over the CAP but in return reduced its existing powers to co-decide with the Council on the medium-term financial perspectives. The decision on the overall level of the Union's revenue ? 'own resources' ? and on the sources of this revenue remains the same, that is, unanimity in the Council followed by national ratification (I-53.3). The Convention agreed that the modalities of the own resources system should be enacted by qualified majority vote (QMV) in the Council and with the consent of the European Parliament (I-53.4). The UK now contests that proposal, in a futile attempt to preserve for itself its own EU rebate even though several much poorer countries are having to fork out for it.

The multi-annual financial framework (I-54), which lays down the main categories of EU spending, is to be agreed by QMV with the consent of the Parliament - although the shift to QMV is delayed beyond the next but one round of renegotiation of the financial perspectives (possibly, therefore, until 2017). In its own, perfectly legitimate, quest for a fair slice of the cake, the Netherlands is contesting even this distant element of QMV. Parliament's margin of manoeuvre will be restricted to accepting or declining the Council's financial programmes, which will be legally binding unlike now.

As far as the annual budgetary procedure is concerned, the UK is proposing a so-called tie break mechanism that would ensure that in the event of a conflict between Council and Parliament the lowest amount proposed would be accepted (III-310). The Treasury boasts this would be a neutral process. It would certainly remove any serious element of political choice from the EU budget process. It would also bring back the annual bickering over the budget between the Council and Parliament which so soured their relations and harmed the image of the EU previously, before the current consensual approach was accepted. Apparently the British see only that the Council could use the tie break against the Parliament, forgetting that MEPs will be sorely tempted to play their own games with the Council. That the UK government defends the tie-break and refuses honourable compromise proposals put forward by the Italian and Irish presidencies should be seen for what it is: an insult to parliamentary democracy and a threat to the subtle institutional balance achieved in the Convention.

Tax

Take tax, as a further example, where the Convention proposes a slight modification to existing practice with respect to company taxation, turnover taxes and excise duties that would allow the Council to decide unanimously to use QMV to take measures relating to administrative cooperation or to combat fraud or evasion where necessary for the smooth operation of the single market (III-62.3 & III-63). The draft constitution also introduces the normal legislative procedure - QMV plus co-decision ? in the field of social security for migrant workers (III-21). Even with respect to environmental taxation, the Convention stuck with unanimity in the Council (III-130.2). Again, any change to QMV will have to be taken unanimously. Yet the UK is opposing all these proposals at the IGC.

Foreign policy

Stung by the absence of a genuine common foreign and security policy, the Convention proposes that QMV be used to decide on a proposal of the new Foreign Minister when he or she acts under the mandate of the European Council. Even then, any member state, for 'vital and stated reasons of national policy', may press an emergency brake and veto the decision (III-201.2). That the UK opposes even this speaks volumes about its real intentions with respect to the development of EU common foreign policy. So does its efforts to detach the Foreign Minister from the Commission.

Justice and home affairs

The UK is much concerned to protect its common law system from the incursions of foreign judges. In fulfilling its brief to merge the third pillar, the Convention retained unanimity in the Council only for the setting up of the European Public Prosecutor (III-175) and for operational policing (III-176.3). The UK wants to insert another emergency brake clause that would allow any single member state to veto all integration across the whole field of justice and home affairs. Welcome back to the clumsy old third pillar, even after Madrid.

Enhanced cooperation

It has been fairly obvious for some time that it is the British red lines that are defining the policy areas in which enhanced cooperation will first be tried by the federalist states. So the UK has a keen interest in ensuring that any core group of member states integrating further or faster than it is prepared to accept will not damage British national interests. As far as the modalities of enhanced cooperation are concerned, therefore, the UK government opposes the wider use of QMV inside the core group (III-328). It is also against QMV for enhanced cooperation in foreign policy (III-325.2).

Passerelle

One of the most imaginative features of the Convention's draft constitution is the inclusion of a bridging clause to allow for future decision making to become more flexible and democratic. Naturally, the UK government opposes this, and is insisting that deployment of this provision (by unanimous decision of the European Council) could still be blocked by one single national parliament. Any guesses which?

The sad thing about the British contribution to the constitutional development of the European Union is that where the UK does have a good case to make, it has come to be met with incredulity. Each and every British statement on the constitution is now treated with deep suspicion by all its partners. The sudden revelation of the British referendum on the constitution is not seen as a joyous demonstration of a vital democracy but as a frantic reaction to rampant Europhobia.