Parliaments suffer at stalling of constitution

Written by Andrew Duff MEP and published in ft.com on Tue 11th Oct 2005

The stalling of the European Constitution deprives the European Parliament of a large increase in its legislative and budgetary powers. But it also hits on national parliaments, for whom the Constitution prescribed a new, formal mechanism to call in any draft EU law that breached the principle of subsidiarity. If one third of national parliaments were to deliver a reasoned objection to a legislative proposal, the European Commission would have to reconsider it. The subsidiarity test is something of a challenge at the best of times: does action at the EU level, by reason of its scale or effects, better achieve the policy objectives than action at the national level? There is room for argument in almost every case.

To prepare themselves to take on their new constitutional responsibility, national parliaments have been through a rehearsal on a law regulating the railway industry. One aim of the 'third railway package' is to extend to rail passengers the protection comparable to that which recent EU legislation has accorded aviation passengers. Significantly, the railway experiment in subsidiarity scrutiny triggered objections from over a third of national parliaments. The assumption is that, had the Constitution been in force, the Commission would have been forced to revise the proposal or withdraw it. However, when the subsidiarity question was raised in the European Parliament, MEPs decided that it would be crazy to give passengers travelling by train from Paris to Brussels greater privileges than those travelling from Paris to Lyon. So it looks as if EU norms are now going to apply both to domestic as well as international rail journeys. Effectively, observance of the principle of subsidiarity takes second place to enhanced consumer protection.

The results of the experiment will be discussed at a meeting of representatives of all twenty-five national parliaments in London on 10-11 October. It is important that MPs have stumbled upon the paradox of subsidiarity early on in their attempts to strengthen national parliamentary scrutiny of EU affairs. The lesson is that subsidiarity is not just a way to stop things happening at the European level, but a useful tool in gauging where the public interest really lies.

The London meeting will also be taking a first look at the 'period of reflection' ordained by the European Council after the No votes in France and the Netherlands. The European Parliament is trying to give some much needed focus to the reflection, and needs support from national parliaments in its efforts. Slowly but steadily MEPs are coming to accept that the Constitution will have to be modified if it is ever to come into force. The period of reflection, therefore, will be used to prepare for a judicious renegotiation of the text that is limited to the reform of the most controversial common policies and specifically designed to bring dissenting public opinion on board. The complex institutional package deal is likely to remain almost untouched. The focus on policy outcomes would suggest that the main targets for improvement will be stronger economic governance, a reformed European social model, an upgraded emphasis on climate security, and a sharper definition of the Union's borders.

The European Union certainly needs a large public debate on some critical political questions. It is encouraging that Prime Minister Blair, who has so long shirked a European dialogue, should now be willing to give vent to controversy at the Hampton Court summit at the end of the month. But the key to the success of such policy discussions will be to place them firmly within the constitutional context. Policy prescriptions at EU level must relate directly to the rules, powers and procedures of EU institutions as well as to the competences conferred on the EU by the member states. Too often in the past ministers have been known to blame the EU for not solving Europe's employment problems while religiously refusing to give the EU the clout to do so. A better grip on the EU process on behalf of national parliaments should help to steer member state governments towards an attitude which is at once less constraining and more enabling as well as less dissembling and more open.

Andrew Duff MEP is the Parliament's co-rapporteur on the period of constitutional reflection.