The European Union claims that the newly agreed treaty is not a revival of the abortive proposal to establish a constitution. A House of Commons Select Committee has complained that the new treaty has most of the same elements as the old, rejected one. They are both right.
The abortive attempt to establish a European constitution might be seen as a fundamental criticism of the character of the EU. I suspect the reasons for the treaty’s rejection in referenda is more pedestrian. The responsible committee, chaired by Valery Giscard d’Estaing, made a thoroughgoing hash of it, being unable to select the principles that mattered, and trying to include every aspect of EU policy. Even for those who (like myself) support the principles of the European Union, it was a thoroughly uninspiring document. The procedures for the French referendum made made the full document available to everyone – and the document, which is as hard to read as a telephone book, was unlikely to win any friends.
A constitution is a foundational statement. It needs to be communicative, transparent, and justiciable. Every constitution needs to set out the basic institutional framework. It needs to state primary legal rules – rules of recognition, change and adjudication. It should probably state fundamental principles, like the Bill of Rights in the US constitution. But it should not include policy. Instead of confining itself to constitutional issues, the “constitutional treaty” sought both to consolidate the content of previous treaties and to include substantial elements of previously agreed policy – issues like the environment, agriculture and fisheries, and commercial rules. However important these may be, they are not constitutional principles; and whatever the merits of the policies may be, it is very questionable whether the policy which is appropriate now should be expected to be appropriate a hundred years from now. More than nine-tenths of the constitutional treaty was clutter – although it may have contained important policy decisions, it should not have been in a proposed constitution at all.
At the same time, the constitutional treaty included many issues on which there were new agreements. Some of those agreements were fundamental, like agreements on the principle qualified majority voting. Some were not, such as the specific designation of voting arrangements in respect of different policy fields. The member states and the Commission are reluctant to lose sight of the areas they agreed; and so the proposals have been revived in the new treaty. In other words, the new treaty is largely made up of the clutter that should never have been in the proposed constitution. The new treaty does duplicate the constitutional proposals – but it is not a constitution.
Europe still needs a constitution – the specification of institutions, primary rules and basic principles. This treaty is not it. One has to hope that eventually, proposals will be made for a genuine, effective constitution – but it has to be done without elevating every policy area in the EU to the level of fundamental principle. As a modest proposal, there needs to be a word limit. The constitution should not be longer than ten pages; there should not be more than about seventy five clauses. It needs to be served up in plain language. Then, perhaps, it might be worth voting for.