Magazine article The Spectator

The Way Ahead for Europe

Magazine article The Spectator

The Way Ahead for Europe

Article excerpt

Join me in a little thought experiment. For several months now, Tony Blair has been insisting that the European constitution would be a defeat for Euro-federalism. Within hours of appending his name to it, he announced that, far from creating a superstate, the constitution was about 'sovereign nation-states co-operating together'.

Let us play along with the Prime Minister for a moment. Let us imagine that he really has seen off the Euro-zealots and protected the supremacy of national governments. What, in these circumstances, might we reasonably expect the constitution to contain?

First, there would be a proper division of powers. The EU would be confined to cross-border matters, while what one might call 'behind border' issues would devolve back to the member states. Brussels would continue to have a role in such areas as international trade, environmental pollution, and elements of aviation. But the nations would retrieve control over swaths of policy now within EU competence: agriculture, fisheries, social policy, immigration, defence, together with all aspects of industrial relations, employment law and indirect taxation which are not truly necessary for the functioning of the single market.

This is not to say, of course, that countries would be prevented from adopting common initiatives in these areas. But no longer would sceptical states be dragged à contrecoeur into policies that their people disliked. The more federally minded governments would be free to use EU structures and institutions to amalgamate to their hearts' content, with no pressure on the more reluctant nations to join them.

Having made this distinction, a skilfully drafted constitution would include checks and balances to prevent the EU extending its own powers. Wise founding fathers know how to anticipate the power-hunger of politicians. Euro-integrationists might argue, for example, that since fish do not recognise national borders, it is vital to have the Common Fisheries Policy (oddly enough, this logic seems to apply only to British fish: the EU's Baltic and Mediterranean waters have remained outside the CFP for 30 years). Or perhaps they might claim that since low taxes in one country put pressure on others, we need a Common Fiscal Policy.

Until now, such questions have been settled by the European Court of Justice (ECJ). Under a quirk of the rules, you don't actually need to be a judge to be appointed to Europe's supreme court. Many on the ECJ bench are academics or politicians who have never heard a case in their home countries. Unsurprisingly, they think more like legislators than judges, missing no opportunity to widen the scope of their authority. Indeed, some of them have admitted, extrajudicially, that they see the goal of 'ever-closer union' as more important than the dots and commas of the treaties.

A truly decentralising constitution would tackle such judicial activism. This could be achieved by referring all questions touching on sovereignty to a tribunal made up of leading jurists from the member states: the President of the Conseil d'Etat in France, the head of the Bundesverfassungsgericht in Germany, the Master of the Rolls from this country and so on. The tribunal would meet for only a couple of weeks a year, leaving its members free to run their home jurisdictions the rest of the time. They would therefore be less likely to go native than Luxembourg-based judges who depend on the EU for their livelihoods.

While we're at it, why not apply the same principle to the European Parliament? Instead of having specialist Euro-MPs who justify their salaries by passing laws at EU level, a non-superstate constitution would surely propose a return to the pre-1979 system, with an assembly comprising seconded national parliamentarians, elected on respectable turnouts, meeting for three or four days a month. When I suggested this to an MEP the other day, his face became mottled with outrage. This is a full-time job', he rasped. …

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