Is History Repeating Itself as EU Wrestles with Closer Integration? There Will Be No New European Union Treaty in the New Year Thanks to David Cameron's Refusal to Commit to a New Deal. However, as Thomas Pascoe Writes, the Progression towards Ever Closer Union Has Seldom Relied on Treaties Alone

Article excerpt

Byline: Thomas Pascoe

* HE plan before the British Prime Minister was revolutionary in its scope.

A "federal European regime" was being proposed which promised to address the ongoing economic crisis by binding European states even more tightly economically and socially.

To the consternation of the French government, the plan's main sponsors, as well as their backers as far flung as Poland and Romania, Britain declined. The plan for full-on integration was quietly shelved and a new round of bilateral treaties promising goodwill and co-operation signed in its stead.The year was not 2011, it was 1930.

The Briand plan for a federal Europe was the brainchild of the then French Prime Minister. More than 70 years later, and French observers of British attitudes to the continent could be forgiven for adopting a gallic shrug and muttering "plus ca change" under their breath.

However, those campaigning for looser connections between Britain and the continent should not start celebrating yet. The history of European integration is long and complex, and treaty law has played only a small part in driving the member states together.

Nature abhors a vacuum. One of the problematic elements of a system of treaties which now require the signatures of 27 sovereign states is that they must be necessarily vague. Sentiments are expressed with clarity in the treaty text, but by virtue of necessity, the detail is vague.

The result is a transfer of power to a supra-national body, one outside of member state government control, which then makes rules centrally. One school of thought is that these bodies expand their powers wherever possible, and members then find themselves signed up to a host of initiatives they had not envisaged.

Take, for instance, the role of the European Court of Justice.

When the British government signed up to the idea of a European Court, it was intended to arbitrate trade disputes between members. By the time the Law Lords came to rule on Factor Tame II, they took the view that decisions by the European Court were of such importance that they over-rode laws passed in parliament. As such they struck down British fishing laws and effectively instituted what Professor Vernon Bogdanor of Oxford University describes as a "constitutional order" in the UK.

If this sounds alien to British concepts of government, it is. The limitations of British courts mean that they apply and interpret parliamentary edicts, but they do not "fill in the gaps" where legislation from parliament does not exist.

On the continent, the situation is quite different.

In the aftermath of the Second World War, courts were envisaged as powerful bulwarks against totalitarianism. When the British and American drafters of the new West German constitution set out the allocation of powers, they gave the supreme court the ability to over-rule the government because they were horrified at the results of untrammelled central power in the Nazi years.

The impact has been what scholars have termed "judge-made law".

In Germany the constitutional court has invented laws where they did not previously exist since the Princess Soraya case in 1973 when the judges deemed that existing privacy laws did not go far enough. The pattern has been repeated all over Europe. Between 1990 and 1995, the constitutional court of Hungary struck down 273 laws, one in three passed by the legislature in the time. …