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The Government’s Research Papers

excerpts from The Government’s Research Papers 04/77 dated 21st October 2004

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By Ann PalmerThese are excerpts from The Government’s Research Papers 04/77 dated 21st October 2004. On Part 1V and Protocols of the Treaty ESTABLISHING a Constitution for Europe.I make these notes, not only for encouraging those interest parties where to look for quickness, but also for those that do not have a computer, or have time to go into detail or perhaps do not have ‘pdf’ facilities.

Taken from “Summary of main points.

The final edited text was published on 6th August 2004 as CIG 87/04 with Addendums 1 and 2 containing protocols and Declarations respectively. (My Comments, has anyone seen the whole Constitution as one Article –that can fit into the pocket? Has anyone seen this document that the Government is going to sign on 29th October 2004?)

This Part repeals the existing EC Treaties and provides for the succession of the new European Union to the rights and responsibilities of the existing European Union and European Community.

It carries over the acquis communitaire and entrenches the case law of the ECJ as the source of interpretation for this and for the constitution.

–amendment of the Treaty will be effected by new treaties, as at present. However, rather than negotiating these directly between governments in an intergovernmental conference, a Convention will be set up, for amendments of sufficient weight, to make recommendations to a meeting of government representatives.

–the voting method on policy matters, other than defence, may be changed from unanimity to QMV without amending the Treaty. A separate procedure is established for this.

–there is also a procedure for making changes to main policy areas without amending the Treaty. These changes cannot expand the competences of the Union. That would require a new Treaty.

The Constitution must be ratified by all the Member states before it can come into force. If they ratify in time, it will come into force on 1 November 2006. If not, it will come into force at the beginning of the second month after final ratification.
The protocols on the Role of National Parliaments, Subsidiarity and Proportionality provide for mechanisms for a greater involvement and better oversight of the Union’s legislative activities by national parliaments.
Other protocols maintain the UK opt-ins and opt-outs with regard to certain EU policies. The protocols are integral parts of the Constitution and legally binding.

Page 9: The formal title of the text is the Treaty establishing a Constitution for Europe but it is referred to here as “the European Constitution” or “the Constitution”.

Page 10: The Constitution contains 448 Articles and is 349 pages long. (No way does it fit into Jack Straw’s pocket!)

The European Treaties are unusual in many ways. The create arrangements of complexity between states and they give birth to institutions with an extensive independent life. This represents a delegation of sovereignty and is one of the grounds for interest in, and controversy over, the EU Treaties. Nevertheless, they are not entirely open-ended. They are still treaties, legal agreements in written form, hedged around with procedures and definitions which limit the scope for institutional play. As legal documents, the treaties need technical provisions to govern their own operation. These provisions may seem banal at first glance, but they underpin the functioning of the treaties, and thus feed in to the functioning of the institutions and policies.

Articles 1V-437 to 1V-448…..The effect the repeal and replacement of a major body of international law, the preceding EC Treaties and acts. They ensure the survival, with modifications, of the institutions created under those Treaties and of the laws created by those institutions.

They bind into the Constitution the jurisprudence of the European Court of Justice (ECJ) and they make use of a “passerelle” device allowing for a change from voting by unanimity to voting by qualified majority.

Annexed to the Constitution are a number of legally binding Protocols and non-binding, but politically influential, Declarations. The Protocols on the Role of National Parliament and Subsidiarity and Proportionality aim to involve national parliaments to a greater extent in the Union’s legislative processes. (But do they?-see David Heathcoat-Amery!!) They will also affect the way that Westminster examines and scrutinised draft legislation and other Union activities.

Page 11: The first major work of part 1V is to remove from legal effect the existing European Treaties, and to establish the new European Union, created under the present Treaty (the Constitution) as the legal successor to the existing European Union. This is necessary in order to ensure a smooth transition, and it fits the aim of avoiding any form of dual or alternative member ship. (Conservatives please take not!)

Article 1V-437 to 1V-439 effect these changes…..

A more significant change is that the case law of the European Court of Justice (ECJ) is not “the source” for interpretation of Union law and of the Constitution, whereas in the Convention draft it was “a source” for interpretation of Union law.

(There is indeed a great deal of difference between “the” and “a”).

Article 1V-437 Repeals existing treaties etc………..except for certain provisions which remain relevant. These are listed in Protocols to the constitution. Those in respect to the UK mostly concern Gibraltar, the Channel Islands and the Isle of Man, and nuclear energy.

Page 13: Refers to Changes to the Constitution. The Constitution introduces mechanisms by which it may be amended. It also introduces mechanisms by which various of its provisions may be modified, without necessity of amending the Constitution itself. This takes in a number of Articles, Art 1V-443, Article 443 (2), (3) and (4). Still on the same theme but page 14. The Constitution has a number of passerelle clauses, which allow changes to be made to part 111 articles, the main substantive policy and procedure provisions……The Constitution Article 1V-444 broadens the range of matters which may be transferred from unanimity to QMV, without amending the Treaty.

Page 18:Article 1V-447 covers ratification. As in Article 48 TEU, the Constitution must be ratified by all Member States. It will enter into force on 1st November 2006 if universal ratification has been achieved by then. If not, it will enter into force at the beginning of the second month after full ratification.

Universal ratification, combined with the repeal of the existing Treaties and the replacement of the existing European union, serves to avoid anomalies. Many multilateral treaties come into force after a certain proportion of the signatories have ratified them. Also, it is possible for some states to adopt amendments as between themselves, while others remain party to the unamended treaty. In the case of the EU, neither the existing Treaties, not the Constitution, allow this. The Constitution, which is effectively a grand amendment of the existing ones, cannot come into force for some Member states but not for others. In many areas this is a political move, to prevent the growth of alternative sets of rules and relationships. It is a rejection of notions such as variable geometry of multi-speed Europe. However, there are parts of the Constitution for which it is also necessary in a logical sense, for instance in respect of the functioning on the institution. The Member states cannot work under differing rules of voting arithmetic or institutional composition. Universal ratification ensures that this uniformity is preserved, since the Constitution will replace the existing Treaties for all member States at the same time.

Page 19 There are 36 Protocols annexed to the Constitution, some new ones, and others carried over from the existing treaties. The protocols on the role of national Parliaments and the application of subsidiarity and proportionality* are crucial to the Government’s argument that the Constitution places greater emphasis on the importance of national parliaments and that it grants more powers to Member state governments and parliament than under the current Treaties.

*Other Protocols have been considered alongside the Constitution Articles to which they refer in Research Papers on Parts 1 and 111 in this series (04.66 at

http://hell.helibrary.parliament.uk/rp2004/rp04-066.pdf

and 04/75 at

http://hell.helibrary.parliament.uk/rp2004/rp04-075.pdf

Note from me. If that does not work try hel1=I cant make out if there is a difference.

There are pages devoted to subsidiarity etc here too much for me to go into.

Page 36: In September 2004 the Government published its White paper on the Treaty establishing a Constitution for Europe. It claimed credit for the final agreement on the subsidiarity mechanism approved by the IGC and set out in the Protocol and described its “twofold” importance.

Page 38: Mr Heathcoat-Amory was unenthusiastic:

“The Government tried to give additional powers, including a kind of veto power, to the national parliament over measures that breach the subsidiarity principle, but they comprehensively failed in that, as they did in most of the rest of they amendments. We can do no more than raise the issue; the final decision will, as always, be with the European Commission and the European Institutions”.

The Economist, commented on the subsidiarity provisions in June 2004:

Protections for “subsidiarity”-ensuring that issues are dealt with at the most appropriate level-are week at best, non-existent at worst; national parliaments are invited to speak up if they think subsidiarity has been flouted, but the European Commission is merely obliged to take note.

The Foreign Secretary, replying to this comment, stated in the Economist two weeks later:

“In its leader of June 26th, the Economist dismissed the procedure for subsidiarity; but it was wrong to do so. At present, there is no obligation on member states or the European Commission even to inform national Parliaments about draft EU laws, still less to let them have any power. But, under the new provisions all national Parliaments must be notified independently of all draft laws, and given six weeks to respond. Yes, in theory, the commission could then re-submit the original proposals unamended, but in practice they would be unlikely to do so, not least because, if a third of national parliaments are against a proposal, so will be their governments, and the commission would be close to losing the qualified majority needed to pass laws.”

From Anne Palmer

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The Research Paper is onhttp://www.parliament.uk/commons/lib/research/rp2004/rp04-077.pdf43 pages.