the European Constitution

"What need we fear who knows it,
When none can call our power to account?"
Lady Macbeth (Macbeth, Act V Scene 1)

What is the Constitution?
The Constitution is a document that would define the relationship between member states and the EU itself. From the first page, it leaves little doubt about what that relationship would be:

"Article 1-6: The Constitution... shall have primacy over the law of the Member States." (our italics)

Specifically, the Constitution would give the EU jurisdiction in virtually every area of government policy: transport, energy, public health, trade, employment, social policy, competition, agriculture, fisheries, defence, foreign affairs, asylum and immigration, criminal justice and even space exploration. Member states could set their own policy in those areas if and only if the EU had chosen not to do so.

But perhaps the most significant point about the Constitution lies not in the details, but in the very fact of the EU having a Constitution. A Constitution is the hallmark of a nation or state, not a group of nations which trade freely and cooperate voluntarily in certain supra-national schemes and agreements. A Constitution would give the EU legal personality as a state in its own right, including for example the ability to sign treaties with other nations – while robbing member states of the ability to do so independently.

And this is the document that Europhiles describe as "just a tidying up exercise", a change to the rules of a club to allow it to operate with 27 members rather than the original six (see the culture of deceit for further details).

How could it come into force?
The heads of state of the (then) 25 EU members signed the Constitution in Rome in 2004. A plaque created to mark the occasion makes quite clear the intention to submerge the different nations of Europe into a single state:

"On 29 October 2004 in this most sacred Capitoline Hill, which is the citadel of this bountiful city... the high contracting parties of the nations joined in the European Union signed a treaty about the form of Constitution to be adopted, so that the races of Europe might coalesce into a body of one people with one mind, one will and one government." (our italics)

However, by the EU's own rules all member states must ratify the Constitution before it can come into force. Whether this is done by popular referendum or just a vote in the national parliament is left to individual governments to decide.

In summer 2005, the Constitution was decisively rejected first by French and then (by an even larger margin) Dutch voters. These two nations are among the six founder members of the EU. It has been ratified by 18 states, though in only two cases (Spain and Luxembourg) was there a referendum.

What happened then?
Like any popular vote in the EU that goes "the wrong way", the French and Dutch rejections of the Constitution were seen as a mistake to be corrected. Indeed Valéry Giscard d'Estaing, one of the authors of the Constitution, openly used this phrase, and diagnosed that the method of ratification (ie asking the ill-informed masses for their opinion) rather than anything in the Constitution itself, was where the problem lay. There was never any question of respecting the will of the people – the only question was how blatantly and quickly it could be ignored (see dissolve the people for more details).

After the no votes, one EU leader after another pledged to find a way to get around them and resurrect the Constitution. One possibility was simply to do everything the Constitution would have legitimised without ever officially ratifying it – an EU Foreign Minister, an EU Diplomatic Corps and an EU Army have all now been created. When asked where in the existing treaties it says they can do this, Eurocrats usually reply "Where does it say that we can't?"

Finally, Brussels' strategy for getting around public opinion became apparent. Plans for a new, slimmed down Constitution (with the innocuous title of "Reform Treaty", and later "Lisbon Treaty") were unveiled, the official line being that it was much more modest in scope than its predecessor and therefore need not be put to a referendum. The first chink in the armour of this lie came with the leak of a letter written by German Chancellor Angela Merkel to other EU leaders, describing how she wanted the new version of the Constitution:

"... to use different terminology without changing the legal substance... [making only] the necessary presentational changes..."

These days, however, it is openly admitted – by everyone except the British government – that the old Constitution and the new Lisbon Treaty are essentially the same.

"The substance of the Constitution is preserved. That is a fact."
German Chancellor Angela Merkel

"Thankfully they haven't changed the substance – 90 per cent of it is still there."
Bertie Ahern, Ireland's Taoiseach

"Substantially equivalent."
The all-party Commons European Scrutiny Committee

"We have not let a single substantial point of the constitution treaty go… It is, without a doubt, much more than a treaty. This is a project of foundational character, a treaty for a new Europe.”
Jose Zapatero, Prime Minister of Spain

"Only cosmetic changes have been made and the basic document remains the same."
Vaclav Klaus, Czech President

"It's essentially the same proposal as the old Constitution."
Margot Wallström, European Commissioner

"There's nothing from the original institutional package that has been changed."
Astrid Thors, Finnish Europe Minister

"... all the symbolic elements are gone, and that which really matters – the core – is left."
Anders Fogh Rasmussen, Danish Pirme Minister

"The good thing about not calling it a Constitution is that no one can ask for a referendum on it."
Giuliano Amato, Italian Interior Minister

"All the earlier proposals will be in the new text, but they will be hidden and disguised in some way... the proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referenda by avoiding any form of constitutional vocabulary."
Valéry Giscard d'Estaing, chair of the body that drew up the original Constitution

"Britain is different. Of course there will be transfers of sovereignty. But would it be intelligent to draw the attention of public opinion to the fact?"
Jean-Claude Juncker, President of Luxembourg

So how is the new treaty different? Those changes in full

Despite this, it now seems that the new ceci-n’est-pas-une-Constitution will be brought into force without any further reference to public opinion. Indeed, it seems that the main reason Tony Blair stayed in office for so long was so that he could give Britain's assent.

Ireland's Referendum
Of all 27 countries in the EU, Ireland is the only one that will be granted a referendum on the Lisbon Treaty (because Ireland's own Constitution makes it impossible to avoid this). By the time of the Irish vote all other member states will have ratified the treaty, making it possible for the EU to claim that the Irish will be "isolated" if they don't follow suit. At the time of writing, polls show the undecided vastly outnumbering the difference between declared yes and no voters, making the final result hard to predict. (Though it is all to easy too predict that the Irish will be told to vote again if they give the "wrong" answer the first time, as they were after rejecting the Nice Treaty.)

At the request of the Irish government, the European Commission is delaying until after the vote several measures which they worry would make the treaty more unpopular in Ireland, including a plan to harmonise business taxes across the EU (Ireland currently enjoys a significant advantage in this area). The vote has even resulted in the unpopular Bertie Ahern having to resign as Taoiseach, for fear that if he were still in power the referendum might be treated as a proxy vote on his administration.

"If the US Constitution begins with 'We the people', the starting point for the European Constitution is 'We know better than the people'."
Journalist Mark Steyn

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