EU Constitution: Time for 5 new tests
5th September 2003

Briefing: Time for 5 new tests - Why the EU Constitution should be put to a referendum

SUMMARY OF BRIEFING

On September 9th the government will publish a White Paper setting out its position on the forthcoming EU constitution, due to be ratified next year. Tony Blair maintains that this will not result in a significant new transfer of powers to Brussels and therefore he is justified in not giving us the chance to vote in a referendum on whether or not we want the constitution passed into law. Most other EU member countries have confirmed or indicated that they will be directly consulting their peoples on this issue.

The White Paper is expected to repeat Tony Blair's commitment to block any attempts to abolish the national veto regarding foreign and defence policy, tax, social security, treaty changes and harmonisation of procedure in relation to the criminal justice system. The government's media management strategy is now to get journalists and voters to focus on these 'red line' areas and not to look at those proposals that will involve other new transfers of power, some of which could in time be used to override the national vetoes Tony Blair will claim to have successfully defended.

Just as the government has established 'five tests' concerning the question of whether or not it should recommend entry into the single currency and thereby trigger a referendum, the Democracy Movement believes that a new set of tests should now be applied to the proposed constitution. If the government's claim that the constitution 'is nothing more than a tidying up exercise' is rejected following a forensic analysis of the document - taking into full account its 'red lines' - then the constitution must be put to a referendum before it is passed into law.

To encourage a vigorous examination of the government's position the Democracy Movement has identified five new tests based on key claims made by Tony Blair and the Foreign Office in relation to the constitution. In the enclosed briefing document we have reached our own provisional assessment of the tests. The five tests, together with a summary of the conclusions reached in the substantive briefing, are:

Test One: Does the constitution represent movement towards the creation of an EU state?

Article 6 establishes the 'legal personality' of the EU. The constitution becomes the source of EU authority, not the treaties that national governments transfer powers to Brussels under. The current draft proposes a significant reduction of national vetoes. A full-time president will be created. Article 12 grants Brussels monopoly right to make international agreements for all member countries in areas EU considers its prerogative.

Test Two: Will the EU constitution impact on the conduct of economic policy and the provision of public services?

The Treasury in its recent euro entry assessment warned that the constitution could have major implications for economic policy. Article 14 states that 'The Union shall adopt measures to ensure coordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies.' Article 13 lists eleven very broadly defined areas of policy-making, including the entirety of internal market activity, where 'the member states shall exercise their competence only if and to the extent that the Union has not exercised its competence.' Article III-32 would give Brussels right to impose privatisation and deregulation. Article III-179 will enable the EU to legislate in the area of health policy. The Charter of Fundamental Rights contains several potential implications for public expenditure.

Test Three: Will the constitution significantly extend qualified majority voting and limit the national veto?

The Constitutional Convention that created the current draft itself lists thirty new areas of QMV (in addition to the abolition of sixty national vetoes that took place under the Amsterdam and Nice treaties and that were likewise not subject to a referendum).

Test Four: Will the constitution have an impact on the UK's criminal justice system?

Article 41 makes provision for the approximation of national laws and for 'mutual recognition of judicial and extrajudicial decisions'. Article III-167 creates a common borders and asylum policy and Article III-172 allows for progress towards common definition of criminal offences and penalties. Article III-177 will give the EU power to extend powers of Europol. The Charter of Fundamental Rights contains potential threats to civil liberties under Articles II-52 and
II-54.

Test Five: Will the constitution make the EU a significantly more democratic decision-making system?

The European Parliament will be able to withhold its consent in more policy areas, but the undemocratic essence of the system remains, in that the unelected Commission will continue to enjoy the near monopoly right to initiate legislation. The Council of Ministers will continue to have many of its decisions agreed by a committee of civil servants (COREPER). European Central Bank will remain protected from political pressure with Article III-80 forbidding elected national governments and MEPs from in any way trying to influence its decisions.

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