House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Sixth Report

3 The Constitutional Treaty

Is the Treaty dead, or just resting?

50. The Preface to the draft Constitutional Treaty prepared by the Convention sets out its genesis:

Noting that the European Union was coming to a turning point in its existence, the European Council which met in Laeken, Belgium, on 14 and 15 December 2001 convened the European Convention on the Future of Europe.

The Convention was asked to draw up proposals on three subjects: how to bring citizens closer to the European design and European Institutions; how to organise politics and the European political area in an enlarged Union; and how to develop the Union into a stabilising factor and a model in the new world order.[71]

51. The Treaty as agreed by the subsequent Intergovernmental Conference (IGC) also sets out the procedure which must be gone through before it can enter into force:

The Treaty establishing the Constitution shall enter into force on 1 November 2006, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.[72]

It is clear that the target date of 1 November 2006 will not be met. The Treaty itself allows for delay in the ratification process, but it does not prescribe what should happen should ratification fail. In the terms of the Treaty itself, a failure to ratify thus means simply that the Treaty does not enter into force.[73]

52. However, a Declaration attached to the original draft Treaty and noted by the subsequent IGC caters for the possibility that one or more Member States will fail to ratify. This Declaration states:

If, two years after the signature of the Treaty establishing the Constitution, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council.[74]

The two-year period set down in the Declaration will elapse on 29 October 2006. As of July 2006, fifteen member states had ratified the Treaty, two had rejected it and eight had yet to complete the process. For the four-fifths provision in the Declaration to be triggered, a further five states would have to ratify before 29 October 2006. No-one seriously expects this to happen, and in any case a declaration attached to a treaty which is itself unratified cannot be regarded as having any force.

53. On 31 May 2006, the Belgian Prime Minister, Guy Verhofstadt, told the European Parliament that the Declaration had been included in order to cater for the perceived likelihood that a problem of non-ratification might arise, not with France and the Netherlands, but with "une partie située de l'autre côté de la Manche."[75] Mr Verhofstadt was quite specific that the contingency envisaged was a British 'No'. In those circumstances, the rest of Europe might have found some alternative way of proceeding, but with the "difficulties in proceeding with ratification" having arisen in countries which have traditionally been fully signed-up to ever closer union, the Council is now unable to agree on the way forward, or even on whether there is a way forward.

54. We asked our witnesses whether they felt the Treaty could be proceeded with, notwithstanding its rejection by the electorates of France and the Netherlands. Charles Grant suggested that those European politicians who think they can revive the Treaty are "out of touch with reality."[76] Ruth Lea was even blunter, describing proposals to proceed with the Treaty as "an act of extreme arrogance."[77] Mrs Beckett confirmed that she is "quite comfortable" with the extended period of reflection.[78] There is clearly no likelihood that the stalled process of ratification will be restarted in the near-term.

55. This has led some, such as the Austrian Chancellor and the Italian and Belgian Prime Ministers, to propose that the electorates of Europe as a whole should be offered an opportunity to vote on the Treaty at the time of the European Parliament elections in 2009.[79] Under this scenario, support for the Treaty of a majority of voters in a majority of countries across the European Union would allow it to come into force. The Treaty itself would, of course, have to be amended to allow this to happen. Since amendment of the Treaty is itself subject to ratification by all member states—in many cases, by referendum—there seems little prospect of this happening.[80] Moreover, as the Foreign Secretary pointed out to us, such a procedure could be offensive to people in those member states, such as Belgium, which have already ratified the Treaty in their parliaments.[81]

56. If the Treaty as a whole is going nowhere, the question naturally arises, could parts of it be implemented?

'Cherry picking'

57. Although the Treaty has been portrayed by some as largely a consolidation measure, tidying up the existing legal base of the EU, it also embodies several important changes. Some of these are arguably necessary for an enlarged EU to function effectively (this indeed was part of the original case made for establishing a convention on the future of Europe); but others may be desirable improvements in their own right.

58. Charles Grant explained what is meant by the phrase 'cherry picking.'

'Cherry-picking' as defined by you could mean two different things. It could mean implementing parts of the constitution within the framework of the existing treaties. You can do a little bit of that. You can agree to it by the subsidiarity procedure, for example, giving national parliaments more power to block EU legislation; you could agree to let the TV cameras in, which I think they have agreed to last month, at the European Council meeting. There are some things in the constitution that you can just do by governments and EU institutions saying 'let us do it'; but only a very tiny fraction of the total constitution. The second meaning of 'cherry-picking' is this: can we make some very minor treaty changes to the existing treaties to do something like adopt the so-called double majority voting system or to introduce the idea of an EU foreign minister?[82]

So, there are parts of the Treaty which could be implemented administratively; and there are other parts which would require changes to be made to one or more of the existing treaties.

59. Mr Alexander was asked several times when he gave oral evidence to the Committee whether he ruled out any changes to the existing treaties of the EU to implement parts of the Constitution. He failed to give us a clear answer.[83] We later received a written response from his successor, Geoff Hoon. Mr Hoon pointed us to the statement by Jack Straw, when Foreign Secretary, that "There is no plan, proposal or intention to slip elements of the Constitution through the back door."[84]

60. Mr Hoon then set out his views on treaty changes:

It would clearly be impractical to rule out all future treaty changes simply on the basis that similar provisions exist in the Constitutional Treaty. Over time, much procedural change has taken place in the EU, some of which, such as the new arrangements for transparency of the Council of Ministers agreed under the UK Presidency, has not required Treaty change; an example of change which did require Treaty change was the extension of QMV in the Maastricht Treaty. If further such change could make the EU more effective, we would not rule it out automatically, but we would look carefully at the possible benefits to the UK on a case by case basis.[85]

The United Kingdom's EU Commissioner, Peter Mandelson, however, recently suggested in an interview that he was "tempted to argue that we should identify those elements of the existing draft treaty that are the most necessary and most important and effective in meeting our institutional needs and strip away the rest."[86]

61. Following a meeting of EU Foreign Ministers in late May, the Austrian Presidency appeared to rule out cherry-picking. Austrian Foreign Minister Ursula Plassnik summed up the meeting's views on the Treaty:

The Union … was now moving from the debate on the future to the programme for the future, and there was agreement that this agenda for the future would be pursued on the basis of the existing Treaties, without any 'cherry-picking' from the Constitutional Treaty.[87]

The way ahead

62. Douglas Alexander told us in May that:

We began our Presidency, as was made clear by the speech that the Prime Minister before the European Parliament on the eve of the Presidency, determined that the period of reflection would not be seen as a period of stagnation and that was it was important to understand not simply the text and the judgment that the people in France and the Netherlands had reached on the text but also the broader context. That explains why we chose to use the informal heads of government meeting in Hampton Court in October to focus on those broader questions establishing in its broadest sense the challenges that Europe faced, embracing the very significant pressures of globalisation bearing down on the European Union and the European continent. I think, as was already manifest in the Spring Council of the Austrian Presidency, Hampton Court proved impressive both in some of the issues it addressed and the added impetus it gave to key areas of policy work of the European Union.[88]

63. The focus on key policy areas is one this Committee supports. However, we are also conscious that the institutional problems of the enlarged Union remain, together with the need identified in the Laeken Declaration for more democracy and transparency and a Union 'closer to its citizens'. The draft Constitution failed to address these issues properly and the 'period of reflection' has so far failed to produce workable proposals.

64. We conclude that although the Treaty is not dead, it is comatose and on life support. At some point, Europe's leaders are going to have to decide whether to switch it off. We conclude that the Treaty establishing a Constitution for Europe is unlikely ever to come into force, although attempts may be made to enact some of its provisions by other means. We recommend that the Government encourage its European counterparts to face up to this reality and explicitly to abandon the Treaty as a package, in the interest of making progress on some of the real and important issues which are at present caught up in the paralysis created by its rejection.

71 Preface to the draft Treaty establishing a Constitution for Europe, available at http://european-convention.eu.int Back

72 Foreign and Commonwealth Office, Treaty establishing a Constitution for Europe, Cm 6429, October 2004, p 227. Back

73 See the Prime Minister's reply to Eric Illsley MP at HC Deb, 19 June 2006, col 1078 Back

74 Foreign and Commonwealth Office, Treaty establishing a Constitution for Europe, Cm 6429, October 2004, p 501 Back

75 "Someone on the other side of the Channel" (unofficial translation); original text available at European Parliament debates for Wednesday 31 May 2006, www.europarl.europa.eu Back

76 Q 111 Back

77 Q 112 Back

78 Q 226 Back

79 "Pan-European constitution referendum unlikely to fly", EU Observer, 20 June 2006 Back

80 Foreign and Commonwealth Office, Treaty establishing a Constitution for Europe, Cm 6429, October 2004, p 226 Back

81 Q 228 Back

82 Q 112 Back