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When is a veto not a veto?

Posted by Richard Thursday, June 17, 2004

Up on the Council web site is what we hope is now the last of the drafts of the constitution produced by the Irish presidency. For those who wish to look at it (groan), you can click here.

One thing to look at is Article III-21 on page 50 (of 89 pages). This deals with Social Security – one of Blair’s "red line" issues, where he is demanding a veto over any proposals for new laws.

As it stands, in the draft, "European laws or framework laws" can be made in order to "bring about freedom of movement for workers by introducing a system to secure for employed and self-employed migrant workers and their dependants".

But – and here is the interesting bit – there is a veto provision in that, where a member of the Council considers that this "would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system", it can request that the matter be referred to the European Council.

This has the effect of suspending the passage of the proposal, whereupon the European Council can, within 4 months, either refer the draft back to the Council, or ask the Commission to submit a new draft. In the latter case, the original proposal falls.

So far so good, but the European Council could decide to refer the draft back to the Council unchanged, so the question arises as to how this can be prevented, should, say, the UK want to block the proposal.

Well, in other instances, where the European Council is required to make a decision – for instance on criminal justice matters and on extending the powers of the public prosecutor, the basis is clearly specified as "unanimous". Elsewhere, reference is made to the European Council acting by QMV.

But in this instance, there is no reference to either unanimity or QMV so guidance must be obtained elsewhere. This can be found in Article I-20 of the draft constitution which specifies that, unless specifically provided for in the Constitution, a decision must be taken by "consensus".

Now, here is the rub. What is "consensus". Clearly, it is not QMV but also, it cannot be unanimity. Is it a majority, is it a general agreement, or what? No-where is there a definition of what this actually means. Is it a veto or not a veto?

But, upon that slender thread rests Mr Blair's "red line" and his claim to have protected the UK interests on Social Security.

As the days go past, undoubtedly many such ambiguities are going to arise. It hardly seems credible that Blair is going to be able to resolve them all at the summit. We are, it seems, headed for interesting times.