The Constitution Is In Force

You may have got the impression that the European Constitution was dead: that the French had felled it, and the Dutch pounded a stake through its heart. If so, think again. The constitution is being brought in, clause by clause, as if those two countries had voted “Yes”.

You’d be amazed how many EU leaders believe the constitution can still be ratified in its current form. Three countries – Cyprus, Malta and Luxembourg – have endorsed it since the two “No” votes. All right, these may not be the mightiest nations in the EU, but their approval means that 13 out of 25 states have now said “Yes”.

“This is a strong signal that a majority of the member states thinks that the constitution correlates to their expectations”, said the Commission President, José Manuel Barroso as the result came in from Luxembourg. “The constitution is not dead”, added the Grand Duchy’s comical Prime Minister, Jean-Claude Juncker. The European Parliament has duly set up a committee to examine how to proceed with implementation.

The view that the constitution can be salvaged tout entier is, admittedly, a minority one. Most European leaders accept that it is no longer possible to proceed with formal ratification. So they have come up with an alternative wheeze: they are simply behaving as though the constitution were already in force. Numerous institutions that have no legal basis outside the constitution have been, or are being, established regardless. These include:

  • The Fundamental Rights Agency, a Vienna-based institution charged with monitoring racism, xenophobia and discrimination across the EU.
  • The European External Action Service, an EU diplomatic force with representation in third countries and in international organisations.
  • The European Space Programme.
  • The European Defence Agency, whose remit is harmonise arms procurement.
  • An EU criminal code, accompanied by a European prosecuting magistracy called Eurojust.
  • A mutual defence clause, which arguably makes redundant the cornerstone of the Nato alliance.
  • A common European asylum policy based on harmonised rules on the assessment of claims and the rights of refugees.
  • EU politico-military structures, and the deployment of uniformed EU troops in Macedonia, the Congo and Bosnia.
  • An External Border Agency to monitor the Union’s “external frontiers” (as opposed to the borders between its members, now considered “internal frontiers”).
  • A Foreign Minister: the silky Spanish socialist Javier Solana.
  • The Charter of Fundamental Rights, which has no binding force outside the constitution, but which Euro-judges are already treating as justiciable.

Every time such a proposal comes before my parliamentary committee, I ask: “Where in the existing treaties does it say we can do this?” “Where does it say we can’t” reply my colleagues, giggling at their own cleverness like Mr Toad in Wind in the Willows.

Thus has the EU got to where it is. It extends its jurisdiction on the basis of summit communiqués, Council resolutions and Commission press statements. Several years can pass before it gets around to regularising these power-grabs in a treaty.

True, there are one or two aspects of the constitution that cannot be brought in through the existing legal framework, notably the new voting system and an end to the rotating presidency. But these things can easily be rushed through in a miniature intergovernmental conference: all 25 governments have, after all, already agreed to them.

How do the Eurocrats justify going ahead in defiance of public opinion? By telling themselves that the referendums don’t count. The French and Dutch, I keep hearing, did not really vote against the constitution, but against something else: Chirac, or Turkey, or Anglo-Saxon liberalism. It is a variant of the Marxist idea of “false consciousness”. The people plainly misunderstood their true interests. They must be brought to see why the constitution is desirable. And, in the mean time, the project must continue.

It is in this context that we should understand those who claim, with Mr Juncker, that “the French and Dutch did not truly vote against the EU constitution”. We may find such statements hilarious. We may howl and retch with mirth at the collective act of hallucination taking place in Brussels. But, when the laughing stops, the constitution will be in place.