How to save the Constitution

Written by Andrew Duff and published in Liberal Democrat News on Wed 3rd Jan 2007

Most of the British establishment seems to believe that the European Union's constitutional project is dead and buried. Not for the first time, most of the British establishment is wrong. Elsewhere, politicians are gearing up to have another go at bringing home the Constitution, whose ratification has been stalled by the negative referendums in France and Holland and their knock-on effects in seven other countries, including the UK.

The Germans are leading the charge. They hold the presidency of the Council in the first six months of 2007. By the end of their term they hope to have reached agreement on the timing, process and mandate for a new Intergovernmental Conference (IGC). The mission is to modify the 2004 constitutional treaty with an eye to its improvement.

French presidential hopeful Nicolas Sarkozy has entered the debate with a proposal to dissect the 2004 treaty. In his scenario, a 'mini-treaty' now, containing the key institutional reforms, would be followed by another 'maxi-treaty' later on. His 'cut and paste' approach is superficially attractive, and wins some support, especially from those, like Geoff Hoon, who have never been enthusiastic about the scale of ambition of the constitutional exercise.

I take a different view, and have written a pamphlet to say so, published by the left-of-centre think-tank Notre Europe.

My starting point is that completion of Europe's constitutional process is essential in order to equip the Union to meet the demands of the 21st Century and the aspirations of a large majority of its citizens. Without the constitution, Europe will lack internal cohesion and external strength, and the EU's development into a mature, post-national democracy will be halted.

I agree with the Germans that the existing constitutional treaty cannot come into force without renegotiation. But two things must be avoided. First, to open up the whole package for review would almost certainly result in something worse. Second, to merely re-edit or reduce the text, as Sarkozy suggests, is legally impossible and politically improbable. The truth is that, in this complex crisis, simplistic solutions will not work.

Instead, the 2004 text must be ring-fenced where the consensus behind it still holds good. This surely applies to the key articles on values, goals, competences, instruments, powers and decision-making procedures (Part I), as it does to the Charter of Fundamental Rights (Part II).

Otherwise I recommend both structural and substantive changes. We need to create a clear hierarchy within the treaty so that Part III - that is, the common policies of the Union - becomes subsidiary to Part I, and easier to revise in future.

As far as substance is concerned, five policy areas suggest themselves for modernisation or innovation, chosen to address directly the most important causes of public dissent.

1. The economic governance of the Union should be strengthened, particularly that of the eurozone; and the goals of the Lisbon agenda, shaping Europe's economic policy response to globalisation, should be written into the constitution.

2. A common architecture for the European social model should be defined, setting out shared solutions to common problems of equity, efficiency and employability; those member states wishing to go further should commit themselves to a Protocol on a Social Union.

3. Environmental policy should be upgraded: combating climate change should become the imperative to which all common policies, especially agriculture, energy and transport, need to conform.

4. The Copenhagen criteria, governing the enlargement policy of the Union, should be included in the constitution, along with the rigorous membership process; and a new category of associate member should be introduced.

5. A revised financial system, covering both revenue (the UK rebate) and expenditure (the CAP), should be negotiated; the new system, fair, transparent and buoyant, will allow the EU's budget better to match its political priorities.

Tempting as it is, I do not advocate another Convention to carry out this renegotiation. Instead, the IGC and the European Parliament should adopt a new form of constitutional co-decision in which texts are shuttled and reconciled between the two. This is a proven process likely to foster agreement between political parties, member states and EU institutions. European Liberal Democrats will be at the forefront.

Plan B: how to rescue the European Constitution by Andrew Duff can be downloaded at www.notre-europe.eu and www.andrewduff.eu.