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The Constitution - a fundamental change?

Posted by Richard Sunday, May 09, 2004

Part 1. The arguments

Central to what passes for a debate over the EU constitution is whether the proposed treaty amounts to a fundamental change in the relationship between the EU and member states.

On this issue, there have been two opposing views.

If one can safely paraphrase these, the first, espoused by Blair and his Europhile acolytes, is that the proposed treaty is basically a tidying up exercise. It consolidates the previous treaties, clarifies the relationship between member states and the Union, and defines more clearly the powers of the Community institutions

In other words, there is no fundamental change in the relationship between the Community and the member states, beyond that which was defined by the Treaty of Rome and subsequent treaties, including Maastricht.

On the other hand, there is the Conservative view that, by virtue of the very fact that this proposed treaty calls into being a constitution by name fundamentally changes the relationship – quite separately from what transpired with other treaties.

If that is a fair summation of the arguments – and the whole extent of them – then my inclination would be to support the Labour view. The nature of a constitution – indeed its very definition – is an instrument which defines the structures and institutions of government, and the means by which we are governed.

To a very great extent, these issues were defined by the Treaty of Rome. Not for nothing did the European Court of Justice decide that this treaty is itself a constitution. Thus, whether we accept the proposed constitutional treaty or not, the fact remains that, with the original and additional treaties in force, we already have a constitution for “Europe”.

On that basis, therefore, it seems difficult to argue convincingly that another treaty – which on the face of it is essentially more of the same, constitutes a fundamental change in the relationship between the Union and member states, purely by virtue of the fact that this new treaty comes out into the open and acknowledges the existence of a constitution.

However – and this is a huge, king-sized “however” – there are changes in the proposed treaty which, if taken cumulatively, do amount to a fundamental change in the relationship about which we are all so concerned.

These have received little attention to date, and such attention as has been given has been less than illuminating. They relate to the nature and functioning of that little-understood Community institution, the European Council. In order fully to understand what is going on, therefore, it is essential to have a good overview of the origins, nature and role of this institution.

Only then does it come clear why what seem technical and obscure passages in the proposed constitutional treaty are of vital importance. An examination of the European Council, therefore, is the subject of the next part of this Blog.