Select Committee on European Union Forty-First Report


Why are we having yet another European Treaty?

1. On 1 May 2004 the European Union will undergo its greatest enlargement to date. Ten new countries are planning to accede, taking the number of EU Member States to 25. The institutional structure of the EU, however, has not changed substantially since the founding Treaty of Rome was agreed by the first six Member States. It is generally agreed that this institutional structure would not function satisfactorily in a Union of 25. Accordingly, in December 2000 when adopting the Treaty of Nice, the Member States, in addition to introducing some reforms to the voting system, identified a number of areas where further reform would need to be considered in the run-up to the next round of EU Treaty revision at the Intergovernmental Conference (IGC) then scheduled for 2004.

Agreeing a Treaty - the process

The Convention on the Future of Europe

2. As a step towards implementing the agreement reached at Nice, the Heads of State or Government of the Member States in December 2001 agreed the Laeken Declaration which, among other things, established the Convention on the Future of Europe ("the Convention") as the method for this Treaty revision. The Convention would "consider the key issues arising for the Union's future development and try to identify the various possible responses".[1]

3. The Convention has provided the means for the widest input into any EU Treaty reform to date. The Convention comprised representatives not only from the EU institutions and Member States' governments but from Member States' and Applicant States' national parliaments and from the European Parliament, with a strong contribution from the representatives of the United Kingdom Parliament. All these representatives, guided by a Praesidium, worked tirelessly over many months, meeting both in plenary and in working groups. The Convention at the end of its work agreed[2] a "Draft Treaty establishing a Constitution for Europe".

The Thessaloniki European Council

4. The Convention's chairman, Valéry Giscard d'Estaing, presented Parts I and II of the Convention's work to the European Council at Thessaloniki on 19/20 June 2003[3]. The Presidency conclusions of that summit state that the text as presented: "marks a historic step in the direction of furthering the objectives of European integration:

·  bringing our Union closer to its citizens,

·  strengthening our Union's democratic character,

·  facilitating our Union's capacity to make decisions, especially after enlargement,

·  enhancing our Union's ability to act as a coherent and unified force in the international system, and

·  effectively dealing with the challenges globalisation and interdependence create".

The Convention's work going forward - the IGC

5. Member States' governments are now discussing the text in an Intergovernmental Conference which began on 4 October. The conclusions of the Thessaloniki European Council also state that "the text of the Draft Constitutional Treaty is a good basis for starting in the Intergovernmental Conference". This is clearly a compromise text between the views of those who see the draft text as "a good basis" and those who view it as "a starting point" for the IGC.

6. Herein lies a significant question for discussion as we move to the next phase of negotiations: how far, if at all, will it be possible for Member States meeting in the IGC to agree changes to the text? Or will there be a fear that, if one section unravels, then everything can be unpicked, so nothing can change?[4]

7. Another significant question is how the IGC will work. The Government has told us that the process will involve Heads of State or Government, assisted by foreign Ministers. The question of whether national parliaments might be represented has also been raised.

8. The Italian government, who hold the EU presidency until the end of 2003, have set a demanding timetable for the IGC, designed to complete the work by the end of the year. It is also reported that there have been attempts to limit discussion to only a few issues identified at the outset[5]. The Commission for one fears that the timetable decided upon for this IGC will not be sufficient to completely rework provisions[6].

9. Politically, all Member States will need to ensure that their concerns are aired and that any new suggestions put forward in the IGC are thoroughly analysed. At a technical level, where detailed examination of the text will, and we believe should, take place, it is essential to allow time for high-quality and detailed discussion. Such discussion has to be during the IGC, as the subsequent ratification process by national parliaments does not allow an opportunity for amendment of the Treaty, only for its approval or rejection.

10. The draft Treaty is in four parts. Part I sets out for the citizen the broader structure and powers of the Union. Part II comprises the Charter of Fundamental Rights. Part III is concerned with the policies and functioning of the Union and Part IV comprises general and final provisions. Part III very largely repeats existing Treaty text but will nevertheless need careful examination to ensure that the final wording is accurate, provides necessary legal certainty and deals with any issues that are of particular concern to individual Member States. Our own Government has recognised the importance of close examination of Part III[7].

11. Such technical work cannot, however, given the subject matter, be neatly divorced from negotiations on substance, which further strengthens our view that this process should be allowed sufficient time. A rushed negotiation could also serve to undermine transparent and accountable debate.

12. We are concerned that if absolute priority is given to reaching agreement by the end of the year, this will undermine the need for a serious discussion of what are complex and significant issues. We nevertheless endorse the decision made by the European Council[8] that the IGC should complete its work in time for it "to become known to European citizens before the June 2004 elections for the European Parliament".

How should we judge the Convention's draft Treaty?

The big question: is the draft Treaty good for Britain?

13. The case for and against the draft Treaty needs to be examined in the broad context of the European Union's overall direction and effectiveness. But each national parliament has a duty to examine the text from the perspective of its own citizens. A key question to be answered in judging the draft Treaty is accordingly whether it contains measures which are in the UK's national interest, and that of our citizens.

14. Our own Government's position is clear. Peter Hain MP (who represented the Government at the Convention and is currently Leader of the House of Commons and Secretary of State for Wales) told the Committee "I think [the Treaty] is a good deal for Britain" (Q 63).

15. The Government's latest White Paper[9] argues that the draft Treaty meets key UK goals as it:

·  Consolidates the existing EU treaties into a single logically ordered text

·  Sets out a more transparent and accountable structure for the EU

·  Makes it clear that the national governments of Member States remain in control

·  Provides for a more efficient EU.

16. The Government has also argued that[10]:

"The Convention's draft text meets most of the Government's objectives. It succeeds in simplifying the Union's instruments by streamlining them and defining them more clearly. The Convention's draft also proposes more democracy, transparency and efficiency by, for example: making it clear where the Union can and cannot act; reinforcing the role of national parliaments in policing the principle of subsidiarity; providing for greater openness in the meetings of the Council of Ministers; replacing the Maastricht "three pillars" system with a single Treaty structure: and setting up a Chair of the European Council."

17. We consider in the rest of this report how far this analysis by the Government is correct. We note, however, that the Government does have reservations about a number of matters and has made it clear that there are some issues on which it will take a firm stand. One key purpose of this report is thus to test how far the draft Treaty is indeed good for Britain. There is a particular need for thorough scrutiny and debate to inform discussion on whether a series of apparently small individual changes to be made by the draft Treaty do not, taken together, have unwelcome or unexpected consequences. With these general considerations in mind we explore a number of individual themes in this report.

Another big question: does the draft Treaty do what it is supposed to do?

18. The Laeken Declaration[11] set a number of questions that needed to be addressed and in particular drew out the following key priorities for the new Treaty:

"The Union needs to become more democratic, more transparent and more efficient. It also has to resolve three basic challenges: how to bring citizens, and primarily the young, closer to the European design and the 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, multipolar world."

19. Thus one of the aims of the Laeken Declaration was that the Convention should produce proposals to make the EU more efficient and effective. The Government's White Paper reflects this spirit[12] arguing that the EU must change because "the EU works. But it could work better" and "the EU needs a clearer statement of what it does, why it does it and how. Its legal structure should be made clearer to understand". The White Paper concludes that "the auguries are good that the IGC will agree a new Treaty for a more efficient and accountable EU".

What this report is; and what it is not

Our work

20. We have already produced a number of reports on the detailed texts that have been considered by the Convention[13]. We do not repeat that exercise here. This report is an overview, designed to draw attention to the key political questions as discussion moves into the IGC. We have taken as our starting point the text being considered by the IGC as it began its work on 4th October. We have not tried to respond to fast-moving and as yet formally unpublicised developments since that date. Appendix 1 lists our Members and Appendix 2 records a number of divisions in which members of the Committee opposed particular provisions of this report.

21. In this report we hope to identify both the significant improvements that will be made by the Treaty and the points on which our Government should not give way in negotiation. We also hope to shed some light on the most significant reservations that other Member States have about the draft Treaty (see Appendix 4) and thus inform debate about whether, as some fear and others would perhaps wish, our own Government is objecting to the draft Treaty more than others. We make this report to the House for debate. We encourage the House to find an opportunity for such a debate during the IGC.

Our key themes

22. We seek to test the draft Treaty against the objectives set by Laeken, which the Government clearly believes have been met. We have accordingly examined the provisions of the draft Treaty against the following four key questions:

·  The Union and the Member States - does the draft Treaty consolidate the EU as a union of Member States?

·  Openness, democracy and accountability - does the draft Treaty represent significant improvements in these areas?

·  What difference will the draft Treaty make to the citizens, in particular in bringing the institutions of the Union closer to the citizens?

·  Will the draft Treaty lead to a Union that is more efficient?

23. We have also noted the significance in the draft Treaty of measures concerned with foreign affairs, defence and security on which the most work remains to be done. It is in these areas that the Government appears to have the strongest reservations about, and indeed objections to, the draft Treaty.

24. We do not, however, consider in detail the draft Treaty's provisions concerned with Europe's economy and the need for sustainable growth. In these areas, much of the draft Treaty is unchanged from the Maastricht Treaty: provisions for economic and monetary union in particular are largely unaltered[14]. We nevertheless urge the Member States, as they engage in constitutional discussions, not to lose sight of the overriding importance of ensuring that reforms to complete the Single Market are carried through. To this end we make recommendations in paragraph 129 below about the need for flexibility in the Stability and Growth Pact.

The need for more detailed analysis

25. While much of the text of Part I of the draft Treaty is new or amended from previous treaties, and while the Charter of Fundamental Rights appears for the first time in a Treaty (forming Part II), most of the 342 Articles in Part III of the draft Treaty repeat existing provisions and it has been suggested that only 15 are new[15].

26. In order to gain clarity on what is indeed new in the Treaty, however, the Committee has pressed the Government to provide Parliament with a comprehensive written analysis of how the draft Treaty differs from the existing EU treaties which it replaces; and in particular how far the draft Treaty would extend Qualified Majority Voting (QMV). While we commend the clarity and accessibility of the recent White Paper, we are disappointed that the Government has not taken that opportunity to provide, even in an Annex, detailed information that will underscore how far the Treaty is, and is not, new.

27. We are accordingly pleased to note the Government's undertaking[16] to provide an analysis of the draft Treaty against existing Treaty provisions. We would expect this document, in analysing every Article of the draft Treaty, to identify in particular which provisions are new, and where there are changes to competences and to provisions for QMV. It will also be important for the Government to set out their understanding of the inter-relationship between the provisions which affect decision-making, including the passerelle, the right of initiative and the flexibility clause - all of which we discuss in more detail later in this report. The Government's analysis should be made available to Parliament and to the public as soon as possible as the IGC unfolds, as our Government's negotiators are already engaged in work in the IGC. The analysis should also include a more detailed glossary than that provided for the general reader in the White Paper.

Structure of this report

28. In chapter 2 of this report we examine some of what we see as new in the draft Treaty and in particular what the EU will do under its provisions. We examine extensions to competences and to QMV, as well as the proposed new mechanism involving national parliaments designed to enhance respect for the principle of subsidiarity.

29. In chapter 3 we examine who will run the EU if the provisions of the draft Treaty take effect.

30. In chapter 4 we consider how far the draft Treaty makes the EU more democratic, accountable and transparent.

31. We examine in detail in chapter 5 two policy areas of particular importance - the Charter of Fundamental Rights and matters of justice and home affairs.

32. In chapter 6 we deal with matters of foreign policy, security and defence.

33. We end in chapter 7 with a summary of conclusions.

34. In Appendix 4 we provide a flavour of how some other governments and other national parliaments are responding to the draft Treaty. Other appendices contain material supplied by the Government, including a number of responses to our earlier reports.

35. We will report separately over the coming months in more detail on the draft Treaty's proposals regarding the European Court of Justice.


36. In this report we use the phrase "the draft Treaty" to refer to the proposed draft constitutional Treaty for the European Union prepared by the Convention and submitted to the Heads of State and Government at the Thessaloniki European Council, along with the subsequent amendments. The draft Treaty refers to itself as "the Constitution" and some of our witnesses who we quote talk of the "draft constitutional Treaty". The Government's White Paper refers both to a "draft constitutional Treaty" and "the draft Treaty".

37. The Laeken Declaration made clear that the Convention was to examine whether the EU needs a constitution: one of the headings of the Declaration was "Towards a Constitution for European citizens". The document the Convention produced is entitled "draft Treaty establishing a constitution for Europe" although the White Paper in which the Government presented this document to Parliament was itself entitled "The Draft Constitutional Treaty for the European Union"[17].

38. We note that the Foreign Secretary has said[18]:

"The constitution is no more than a treaty labelled "constitution". It is a treaty that we shall ratify in the same way as any other treaty".

39. We leave it to others to consider whether this document is a constitution and if so what the practical significance of that is. The House's own Constitution Committee has been considering this question[19]. We examine in paragraphs 127-130 below the significance of the terminology for future revisions of the draft Treaty.

40. We note, however, that, since the founding Treaties of Paris and Rome (which themselves were constitutions of some kind), there has been a continuous evolution in the Treaties agreed by the Member States which form what is now the European Union. In public discussion, some clearly think that agreeing now a document containing the word "constitution" in its title is in itself a significant step. Will it bring to pass their worst fears of the creation of a European state? Others however have argued that there is no issue here - even a golf club has a constitution! Using the terms "constitution" and "constitutional" to describe the Convention's output has clearly provoked debate and, while they can be thought to have simplified the language used, it is an open question whether such terms have added any clarity.

41. We hope that debate will now turn away from terminology and focus instead on whether the draft Treaty improves the efficiency of the EU and whether it is indeed "good for Britain". Nevertheless, in view of the serious concerns expressed we examine in the next Chapter how far the provisions of the draft Treaty can be thought to point towards a European state.


42. There has been little time between the agreement of the Convention's final text in July and the start of the IGC in October. We have accordingly not taken extensive evidence for this inquiry, as we draw here mainly on published texts and our earlier work. But we are very grateful to those who sent in papers which are printed with this report. We urge readers not to overlook the detailed comments made in evidence, and indeed the detailed proposals for textual amendments to the draft Treaty, not all of which are covered in the body of this report.

43. We thank the Rt. Hon. Peter Hain MP who, in one of his last duties as the Government's representative on the Convention, appeared before our Committee. His evidence is printed with this report. Mr Hain was at the time newly installed as both Leader of the House of Commons and Secretary of State for Wales so we are particularly grateful to him for assisting us.

44. We also took this opportunity to hear from another distinguished member of the Convention, M. Hubert Haenel, Président de la Délégation pour l'Union Européenne of the French Senate. A transcript of his evidence is printed with this report. We are grateful to the senator for making himself available to us. We hope that this will be the first in a series of constructive bilateral exchanges with colleagues in other national parliaments.

45. Our sub-Committee C also held a session with witnesses from the Ministry of Defence and the Foreign Office, which informed Chapter 6 of this report in particular. A full transcript is printed in Appendix 5 below.

1   Declaration on the Future of the Union, available in the Government's Command Paper Cm 5897.  Back

2   Albeit with a minority report from a few members (CONV 851/03) Annex III - "Alternative Report - The Europe of Democracies"  Back

3   Parts III and IV of the draft were produced by the Convention on 10 July. All four parts with the attached protocols were presented to Parliament on 12 August 2003 as Cm 5897. Back

4   See the evidence from Jo Shaw, printed below (p 49).  Back

5   European Report, 10/9/3. Back

6   Opinion of the Commission (12654/03) p.13.  Back

7   For example the Minister for Europe, Dr Denis MacShane, speaking on 23th September at a Chatham House Conference "Brave New World: Europe in Transition". Back

8   See Cm 5897, p. 186.  Back

9   A Constitutional Treaty for the EU - The British approach to the EU IGC Cm 5934 (1 September 2003), referred to in this Report as the "The White Paper". Back

10   HC Deb 15 September 2003, col QWA 586. Back

11   Cm 5897, p 181. Back

12   Cm 5934, paragraphs 10, 16 and 25.  Back

13   See Appendix 3 for a list of our earlier reports. Back

14   See paragraph 212 below on the ECB. Back

15   See HL Deb 9 September 2003, col 239. Back

16   Ibid, col 272.  Back

17   Cm 5897. Back

18   HC Deb 16 September 2003 col 796. Back

19   See their 9th Report, Session 2002-03, HL Paper 168. Back

20   In this report, references in the form (QQ) are to questions in sessions of oral evidence; and those in the form (pp) to pages of written evidence printed below. Back

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