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And in 1973, the UK joined the European Economic Community

This week Gordon Brown launched a nation wide public debate on the British Constitution.

I say launched perhaps I should say re-launched because he was referring to the Governance of Briton a green paper published in July last year.

Having read the paper I feel there are some interesting proposals, many of them though affect the interaction between the various institutions of the state, and will not directly affect us. I am not however particularly enthused by the prospect of a short term government messing about with the basic constitution of this country when it comes to the interaction between the people and the state. For one very good reason; if they overturn the present constitutional documents which they would have to do in order to create a new bill of rights, and a new constitution in their image. Then who is to gainsay any further government from doing exactly the same.

That is not to say the British constitution has shown itself robust enough to resist recent incursions of our basic rights, but these have been made by ignoring the documents that form the basis for our constitution. What Brown is about is to complete the transformation of the constitution by overturning those constitutional documents that we do have and replacing them a new bill of rights and responsibilities! A bill of rights moreover that cannot have the power of the original documents that have been endowed with 300 years of history.

The Green Paper introduces the major influence on our constitution and then ignores its affects on our constitution all in one sentence: And in 1973, the UK joined the European Economic Community (now the European Union) and became a part of a multinational political structure. What is the point for instance of the Green Paper proposing to give parliament a say in international treaties excluding EU treaties, when Brown has just signed a treaty passing much of the power to negotiate international treaties to the EU, where the decisions will be made not in our parliament but in the Council of the EU.

I have previously maintained that the whole idea behind New Labour`s sudden interest in Britishness is the result of the regionalisation project. They can see that instead of damping down the flames of separation, by allowing for the creation of separate parliaments in Scotland and Wales they have in fact fanned the flames by creating a regional base in which the separatists flame can be fanned and amplified, this is especially the case in Scotland.

But I have begun to think that there could as well be a different explanation, one that although recognising the problems of regionalism is also making a clear statement to the Federalists in the EU and to the separatists in Scotland and Wales, that the nation state of Britain is the true repository of popular sovereignty. Thus signalling that the battle for supremacy between the different parties in the EU system of government is far from over, and at the same time firing a shot over the bows of the the separatists.

Notwithstanding Browns call to the flag is totally unacceptable because the green paper proposes the nations and regions of Britain, the nations obviously meaning Scotland and Wales and the Regions a divided England. Brown accepts that this is an unbalanced settlement yet has no other proposals. The call to Britishness also flies in the face of the anti nation state mentality of the EU that we have been subjected to for the past several years. What was it Margot Wallstrom said; that we are risking a return to the Holocaust by clinging to “nationalistic pride”.

From the EU federalist perspective one of the major problems they face is the popular legitimacy of the whole organisation. Whilst the people’s sovereignty remains firmly attached to our nation states, the long term prospect for the EU to gain legitimacy from popular sovereignty is severely curtailed, because the only legitimacy the EU can claim is that given it by the states, and as happened in the USA the EU states will continue to claim their mandate from the people as an overriding factor in constitutional law debates. So no matter what the EU through the ECJ might claim, at the end of the day the states are in charge.

It is this fear coupled with the failure of the EU economic prospects over the past thirty years that is the driving force behind the federalists desperate attempt to preserve the central power of the EU in a battle for the eventual survival of a federalist Europe The point not to be missed here is the political elite do not want any old EU they are determined to create a federalist supra government, roundly based on the federal USA. To this end they will use any weapon to hand. But for the project to really succeed they must reduce the power of the nation state to resist integration.

As sates presently have a veto over treaty change it has become increasing difficult to get further intergrationalist measures through the system with different states claiming opt-outs and opt-ins on a variety of areas. Previously the political elites have been prepared to wait until the right time or people to arise before making a further forward push, but the obvious lack of success on the economic front and the falling regard for the EU is creating an impetus for the elites to keep the whole show on the road. They must push forward to further integration as soon as possible otherwise they fear the whole project will fall down around them.

In the past the ECJ has used the preliminary reference procedure combined with the prerogative to interpret provisions of the treaties against the sovereignty of the members states. In that the ECJ has interpreted the treaties in a way never intended by the leaders of the member states and never agreed in the treaties, thus extending the constitutional power of the EU.

(The ECJ characterises the preliminary reference procedure as based on cooperation between national courts and the ECJ. However, it is the ECJ that controls this cooperation and sets its terms. In its ‘dialogue’ with national courts, it has the upper hand and has succeeded in co-opting national courts into an EU judicial system.)

1964 the ECJ declared the supremacy of European law over national law.

In 1970 the ECJ declared the supremacy of European law over national constitutions.

The working time directive etc.

The ECJ is now playing a pivotal role in harmonising tax law in the EU, using EC Treaty principles of non-discrimination. In fact the ECJ has had a profound effect in shaping supranational governance of the EU above and beyond that which has been agreed by our elected leaders.

In an attempt to prevent further unwarranted erosions of member states sovereignty by the ECJ the member states deliberately designed the pillar system (Maastricht) so as to insulate the state sovereignty from the incursions already made by the ECJ.

In restricting the jurisdiction of the ECJ over the second and third pillar policy areas the states ensured that legal acts bind states and did not create rights for individuals.

One of the recognised characteristic differences between a confederation and a government is precisely the ability to extend the authority of the Union directly to the citizens.

Thus the federalists had to remove the block of the pillar system for the process of integration along federal lines to continue. The states attempt to preserve state sovereignty from interference by the ECJ, immediately came under sustained attack and did not last long in the hothouse of EU federalisation. The federalist waited less than 10 years before moving to abolish the pillar structure set up at Maastricht, this they achieved in the EU Constitution.

Although the federalist claim the ECJ was still controlled by articles III-376 and III-377 in the Constitution, a glance at those articles will confirm that they relate to common foreign and security policy, and common security and defence policy.

The idea that the ECJ should not have jurisdiction directly over the citizens is completely negated by the introduction of the EU Charta of Fundamental Rights into the Constitution, thus opening up the whole area of citizens basic human rights to EU control with the ECJ as final arbiter, and massively increasing the power of one of the major contributors to integration.

With the Constitution and now the Lisbon Treaty it is clear that the federalists are winning the struggle over the supremacy of European Treaties and legislation and their ability to create judiciable rights for individuals against member states. Which means our personal sovereignty is being continually curtailed, because the federalists are concerned with one thing and that is to preserve the Federalist path of The Union.

As they do not have a popular mandate and cannot claim realistically to have shown the EU is a real benefit to us, the only vehicle they can use is that of further integration.

The Monnet or Community Method approach to EU integration entails a fundamental trade-off between integration and democracy. The logic of the approach is such that any time a choice between integration and democracy has to be made, the decision is, and must be, always in favour of integration.

The attempt to openly institutionalize popular sovereignty at a federal level was made with the Constitution, which was introduced by the convention method, a supposedly open forum where the future of the Union could be decided and then where forced put to the people, across the EU. It was thought that they could create a rolling set of referenda by making it completely unthinkable for any state to vote against. But as the referendum process failed to produce the required results the federalists have reverted to the classic Monnet style of integration, decisions made behind closed doors the treaties ratified by parliaments with no consideration given to the wishes of the peoples.

There is no chance that they will now allow state based referenda, that way has been shown to hold the potential of blocking the federalists advances, but conversely the idea of an EU wide referendum is gaining some ground and not a little backing from the centre; more of this later.

But the logic is evident in the case of the classic Community Method. the Commission’s monopoly of legislative and policy initiative, actually represents a flagrant violation of both the constitutional principle of separation of powers and the very idea of parliamentary democracy and a clear indication of the tendency to sacrifice democracy on the altar of integration.

What the federalists want and are working towards so desperately is for popular sovereignty to be expressed at the federal level at the expense of the nation state. Then it will become possible to use that expressed popular sovereignty to further enhance the central power of the EU, that is the eventual goal of the federalist’s ideal. And as happened in the USA the introduction of a directly elected president and the changes in property law leading to universal suffrage, led in turn to the federal claim that the popular sovereignty resided in the federal government and not the states government, the expansion of this claim led to the principle that the states did not have the authority to override federal law.

The EU claims to be democratic, “Claims” it shouts it from the rooftops, it even has the temerity to send observers to other nation states to oversee their elections and then produces reports on the observer’s findings. But the EU claim to democracy does not rest in its own system of government, which is anything but democratic. Instead it rests entirely on the basic principals that no state my join unless it is firstly democratic.

The fact that once a state joins its popular democracy is denuded of any real meaning is a clear indication that the EU in reality is not the least bit concerned with democracy, only as a tool to enhance its own authority.

The EU is interested in power for the central federal government, but to gain that power to enhance that power and to give a reason for that power, it must show that either it is an acceptable force for good or that popular sovereignty resides in its intuitions rather than the states institutions.

As an aid to this goal the EU has invented for itself a sort of simulated, imitation democracy. It has set up a mechanism whereby if over a million of us from several member states get together we can approach the EU and ask it to perform some task or other. This we did with the wasteful monthly trip to Strasburg that its parliament undertakes; the basic contempt for democracy can be seen in the results of that petition.

The EU has also created an active political role by commissioning and publishing public opinion polls, the task of public representation which formerly has belonged primarily to state based political parties, is now increasingly mediated through polls from an external agency. It is these polls that allow EU spokesmen and women to claim that their citizens want or expect the EU to act in a certain way. The constant polling is then used both to settle in the minds of the people the idea that the EU is our legitimate government and to further the claim of popular sovereignty for the federal government. There is a serious debate to be had about the relevant relationships between democracy, polling and public opinion and the EU interference in the normal democratic process.

The EU has invented for itself something called “participatory democracy” which is nothing more than a fancy name for a controlled group debating society. And of course the EU is a great supporter of NGOs these pressure groups that try to influence government policy must think all their Christmases have come at once, because not only do they get the ear of the EU policy makers they are also paid for the privilege.

The concept of an EU wide referendum also sits well within this main aim of the federalists, because it does in fact institutionalise popular sovereignty within the EU system, whilst at the same time denying the individual state the opportunity to block.

These are just some of the methods the are being used to enhance the concept that the EU has democratic legitimacy, when in fact it has none whatever. If things go to plan the Lisbon Treaty will have been ratified with the only people who have had a real voice in the proceedings being the Irish.

So after thirty odd years of betraying the nation state and condoning the ridiculing of our nationality, our government in the shape of New Labour suddenly comes up with a strengthening of the concept of British nationality, in fact to be fair the same applies to the Conservative party they too are banging on about Britain and the British constitution.

To be totally honest I smell a very large rat, without any doubt the EU is on track towards a federal state system with a strong centrally controlled government, and has no interest in preserving the present member states borders. But is actively pursuing a course of action designed to undermine the nation state. Within that context either the British nation state political village is beginning the fight back, or they are making a big noise about the British constitution so that it can be changed without too many hysterics to bring it into line with the rest of the EU to enable further integration, after so many devious political years in which the political parties have connived in the disruption of the nation state I am finding it very difficult to take these protestations of Britisness at face value.

The one ray of hope is that both Labour and Conservatives are taking an EU retrograde step, by trying to combat the regionalisation process, both of the parties has promised to get rid of the regional assemblies, on the other hand both are going to keep the regional development boards in some form or other. Labour has demonstrated its intention to keep the regions and enhance their powers, the Conservatories have yet to put bones on their proposals.

References: EUI Working paper RSCAS 2008/2

Altiero Spinelli and the Idea of the US Constitution as a model for Europe:

The Promise and Pitfalls of an Analogy.

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