The Convention's proposals
49. It needs to be emphasised that the draft constitutional
treaty which has begun to arouse public interest has not yet been
agreed by the Convention as a whole. Prior to 27 May all that
existed was the Convention Praesidium's first draft of parts of
the constitutional treaty, based, not always very closely, on
the reports of the Convention's working groups and their reception
by the Convention plenary. Parts of the current version reflect
discussion of that first draft in the Convention plenary, though
they are still the work of the Praesidium, and parts have not
yet been discussed at all in the plenary. While the draft articles
must be taken seriously, since they could eventually be
enacted, they will go through many more stages, including an Inter-Governmental
Conference (IGC), before any of them are finally agreed.
50. Many of the draft articles reproduce parts of
the existing treaties little changed. There are also some welcome
provisions not in the existing treaties, such as a duty on the
Council to meet in public when legislating, and a role for national
parliaments in respect of subsidiarity. Many integrationist ideas
put forward in the Convention do not appear in the draft articles.
However, there are also some draft articles which are unlikely
to be acceptable to the UK. We summarise here those aspects of
the draft treaty to which we believe the House should pay particular
attention, either because they could cause problems for the UK
or might be amended in unacceptable ways or simply because of
their importance. For a detailed examination of the earlier draft
of the constitutional treaty we refer Members to the valuable
series of Reports produced by the House of Lords Select Committee
on the European Union.[44]
51. We note that in some areas the current draft
improves on its predecessor. In particular, the former Article
1 replaced the existing references to the 'high contracting parties'
(i.e. the Member States) establishing the European Community and
the European Union by the following wording: 'Reflecting the
will of the peoples and the States of Europe to build a common
future, this Constitution establishes a Union … '[45]
The current Article I-1 now makes clear that the EU's competences
are conferred on it by the Member States.
52. The reference to the EU exercising the competences
conferred on it 'on a federal basis' has been replaced by the
expression 'in the Community way'.[46]
The meaning of this expression and its consequences will need
to be examined closely.
53. Article I-6 provides for the EU to have legal
personality, with the corollary that there would no longer be
two separate inter-governmental 'pillars' outside the European
Communities (the former first pillar). How much difference this
made would depend chiefly on the extent to which in the areas
covered by the former second and third pillars (the Common Foreign
and Security Policy and police and judicial co-operation in criminal
matters) unanimity was replaced by qualified majority voting and
on the role given to the European Court of Justice in these areas.
Our Report on the proposals relating to the criminal law will
examine this in respect of the former third pillar.
54. Article I-7 provides for the EU's Charter of
Fundamental Rights to be Part II of the constitutional treaty.
This could potentially result in a considerable extension of
EU competence to areas covered by the Charter. Provision needs
to be made to safeguard the division of competences between the
EU and Member States, and to give the European Convention on Human
Rights (ECHR) priority over the Charter. The Government has been
seeking 'horizontal clauses' which would prevent the Charter extending
EU competence,[47]
and Articles II-51 and II-52 appears to provide some protection,
though this will need to be closely scrutinised. We welcome the
fact that Article I-7 provides that the EU shall seek accession
to the ECHR, since accession would reduce the likelihood of divergence
in the interpretation of human rights between the European Court
of Human Rights and the European Court of Justice. Article I-7
and Part II do not provide the citizen with any remedies for breach
of their fundamental rights.
55. Title III of the draft treaty (Articles I-9 to
I-17) sets out competences. This largely reflects what is in
the existing Treaties, but there is some increase of EU competence,
notably the 'exclusive competence to establish competition rules
within the internal market' (Article I-12). We are concerned
about the prospect of exclusive EU competence in the 'Conservation
of marine biological resources under the common fisheries policy'
and how this might affect the management of marine resources at
all levels.[48]
We welcome the explicit provision in Article I-9 that 'Competences
not conferred upon the Union in the Constitution remain with the
Member States'.
56. Article I-17 is the 'flexibility clause', providing
that, where the constitutional treaty has not provided the necessary
powers, the Council (acting unanimously on a proposal from the
Commission and with the assent of the European Parliament) may
nevertheless take action in order to attain one of the objectives
set by the constitutional treaty. This goes further than the
existing Article 308 EC, which referred only to powers 'necessary
to attain, in the course of the operation of the common market,
one of the objectives of the Community.' In particular, it extends
the 'flexibility' to the former second and third pillars. The
requirement for unanimity in the Council on the exercise of powers
under this article is the minimum safeguard required.
57. Article I-20 provides that the European Council
shall normally take decisions by 'consensus'. It is not clear
what this would mean in practice.
58. Article I-21 provides for a President of the
European Council, elected by the European Council by qualified
majority for a 2½
year term, renewable once. Article I-23 does not abolish the
system of rotating Presidencies as regards individual Council
formations, but provides that the European Council may decide
that the Presidency of a Council formation (other than that of
Foreign Affairs) should be undertaken by a Member State for at
least a year.
59. Article I-24 considerably reduces the size of
the majority required for qualified majority voting compared with
what was agreed at Nice, by removing the requirement for a certain
proportion of the weighted votes of Council members. A bare majority
of Member States would be sufficient, provided they represented
at least three-fifths of the EU's population.
60. Article I-33 provides for co-decision (renamed
'the ordinary legislative procedure') to be the legislative procedure
for all or virtually all legislation other than that in the former
second and third pillars. As we have argued above, making the
procedure more transparent should be a precondition for any such
extension.[49]
61. The proposals relating to 'the area of freedom,
security and justice' (Article I-41 and III-153 to 173) provide
for an 'integrated management system for external borders', 'minimum
rules' in criminal matters, criminal prosecutions initiated by
Eurojust, a European Public Prosecutor and other controversial
provisions. We will be reporting separately on these articles.
62. The articles relating to 'External Action' (Articles
I-15, 39 and 40 and III-188 to 210) provide for a Foreign Minister
who will also be a Vice-President of the Commission[50]
some qualified majority voting,[51]
the Foreign Minister to present the EU's case in the Security
Council on matters on which the EU has defined a position, and
'the progressive framing of a common defence policy, which might
lead to a common defence'.[52]
63. Article I-53 leaves unchanged the requirement
for unanimity as regards the ceiling on own resources and the
creation of new own resources, while making the detailed arrangements
subject to qualified majority voting. We are concerned that the
UK's rebate does not appear to be one of the matters on which
decisions would be made by unanimity.
64. Article III-81 formalises co-operation among
the countries which have adopted the euro, providing that they
'shall coordinate their action among themselves and with the Commission
with a view to adopting common positions on monetary matters within
the competent international financial institutions and conferences.'
65. No change is made to the requirement for treaty
changes to be ratified by each Member State. However, the Praesidium
does raise the possibility of 'a streamlined amendment option
(Council acting unanimously, after consultation of the European
Parliament, without ratification by national parliaments) for
certain provisions of Part Three which do not affect the objectives,
values or competences of the Union.'[53]
Some in the Convention have argued for parts of the treaty to
be amendable without national ratification, or for the new treaty
to come into force as soon as most States have ratified it, leaving
the others outside the refounded EU. Either would be unacceptable.
66. In our previous Report we argued that the reference
to 'ever-closer union' in the existing treaties should be removed,
because a treaty should not seek to commit the peoples it covers
to such a vague and open-ended process.[54]
The draft preamble to the constitutional treaty refers not to
the union becoming ever-closer but to the peoples of Europe being
'united in an ever closer fashion'.[55]
However, regrettably, the preamble to Part II refers to the peoples
of Europe 'creating an ever closer union among them'.
67. Nothing is said in the draft constitutional treaty
about opt-outs, such as those of the UK on border controls and
the euro. Mr Hain told us that there was no threat to the UK's
opt-outs.[56]
The Convention
68. The Laeken European Council expected the Convention
to finish its work in March 2003,[57]
and for this to be followed by a period of reflection before the
Convention's work was re-examined at an IGC. The Convention will
now be presenting its work to the European Council on 20 June
2003, and there have been calls inside and outside the Convention
for the IGC to be brought forward to 2003 and for the IGC simply
to endorse the Convention's work. This should be resisted, for
reasons we give below.
69. The Convention has been extremely valuable as
a way of preparing for the forthcoming IGC openly and debating
the issues in public. As it approaches the end of its work it
has even begun to engage public attention in the UK. It has also
had the great merit of fully involving parliamentarians in the
preparation of an IGC for the first time. However, the Convention
method also has weaknesses.
70. First, the Convention is not a representative
body, and its role is to prepare for the IGC rather than to make
final decisions. Provisions agreed by a broad consensus in the
Convention will be influential, but they must be judged by the
persuasiveness of the arguments underlying them rather than having
inherent authority as the decisions of a representative assembly.
As we noted before the Convention began, the legitimacy of 'democratically-elected
governments is inevitably greater than that of an appointed Convention,
and the Convention therefore cannot bind the IGC.'[58]
71. Secondly, the Convention has not been making
decisions by voting. Instead, the Praesidium — the least
representative part of the Convention — decides whether
consensus exists. We argued before the Convention began that
there should be provision for voting, to avoid giving too much
power to the Praesidium.[59]
The argument used against having votes is that the Convention
is not a representative body in which all voices have the same
weight. However, a similar objection applies with almost equal
force to deciding on amendments according to how many people have
signed them or spoken in their favour (as the Praesidium is doing).
Proceeding by consensus will be especially difficult in the final
stages of the Convention, since there may again be large numbers
of amendments tabled and there are deep divisions on several issues.
Much will depend on how the final stages are managed. Governments
should satisfy themselves that any draft constitutional treaty
emerging from the Convention does indeed have the authority of
the Convention behind it.
72. Thirdly, although the Laeken Declaration emphasised
the need to increase democracy and transparency, the Convention
has sometimes seemed more interested in the relationship between
the main institutions within the EU, and more recently in the
detail of a draft constitutional treaty. The Convention has paid
attention to transparency, notably in deciding that legislative
meetings of the Council should be in public, but there has, for
example, been no examination of ways of strengthening the relationship
between the European Parliament and the electorate.
73. Mr Hain told us:
'If the Convention comes out with a consensus position
… , then that will have a lot of force in the IGC because
these are difficult issues to negotiate a common agreement on
and I do not think people will be anxious to re-open them, ourselves
included. But if there is no consensus over significant areas,
then that becomes a very important focus for IGC negotiations
and for input by national parliamentarians.'[60]
74. The Convention's work will be
an extremely important contribution to the IGC, but we emphasise
the need for its recommendations to be carefully considered by
national parliaments, as well as governments, well before the
forthcoming IGC.
44 HL Papers 61, 70, 71, 81, 93, 105, 106, 107, Session
2002-03. Back
45
CONV 528/03, Article 1. Back
46
Ibid.; CONV 724/1/03 REV 1, Article 1. Back
47
Q 40. Back
48
Article I-12. Back
49
Para. 26 above. Back
50
Q 51. Back
51
See QQ 55-7 and Article III-196. Back
52
Article I-15. Back
53
CONV 728/03, p. 10. Back
54
HC 152-xxxiii, para. 116. Back
55
CONV 722/03. Back
56
QQ 64-9. Back
57
Laeken Declaration, 15 December 2001. Back
58
HC 152-v, 2001-02, para. 16. Back
59
Ibid., para. 14. Back
60
Q 71. Back
