TCS Daily

You Say You Want a Constitution?

By Matthew Elliott - June 30, 2003 12:00 AM

It ended with a whimper, not a bang. After 17 months of deliberations, the European Convention produced a draft Constitution on schedule for the EU summit meeting near Thessaloniki, Greece. The document's Part III, containing the devil's detail, will receive a few more days' attention in July, but previous talk of the Convention continuing into the New Year have proved unfounded. In fact, with the intergovernmental conference (IGC) of heads of government scheduled for October in Italy, the European Union could, theoretically, have a Constitution by Christmas.

Politicians and commentators have rightly focused their attention on analyzing the final document, but virtually nothing has been said about the success or otherwise of the actual Convention itself. Before the Convention becomes a distant memory, it is worth reflecting on the process as well as the product. How has the "Convention model" (as political scientists have dubbed it) fared in comparison to the traditional, purely intergovernmental method of treaty negotiation?

Minority opinions

The main advantage of the Convention model is that it includes representatives from all political parties and institutions. Whereas IGCs bring together the governing political parties or coalitions from each member state, the Convention included representatives of national parliaments, the European Parliament and the Commission as well as national governments. This inclusive approach allowed all the major political parties and institutions to have their say.

In Britain, for example, the Labour party had six representatives, the Conservatives three, the Liberal Democrats two, and there was even an MEP from the Scottish National Party. Had the Constitution been negotiated on a purely intergovernmental basis, opposition parties would have been excluded. In Denmark, MEP Jens-Peter Bonde spoke for the Eurosceptic "June Movement" even though they have no representation at a national level. In a traditional IGC, parties who are only represented in the European Parliament are excluded. The bottom line for minority voices is this: no Convention, no input into the Constitution. If you think the present draft text is imperfect, consider what it could have looked like.

Open debate

The second benefit of the Convention model over traditional IGCs is the comparative openness of the process. Previous treaty negotiations have been slow to publish their conclusions, preventing proper political debate. When the then British Prime Minister John Major returned from the Maastricht negotiations in December 1991, the initial response of many Eurosceptics who had not yet seen the actual text was to provisionally welcome the opt-outs he had negotiated on the social charter and the single currency. After the UK government won the first reading on the ratification bill, the debate largely died down until after the general election in April of the following year.

Amazingly, a printed copy of the Treaty was not available until May 1992 - a full five months after the end of the IGC. The Foreign Office did supply photocopies of the original text (if members of the public knew they were available), but Her Majesty's Stationary Office (HMSO) held back publishing an official text following a dispute over the capitalization of the acronym ECU - whether it meant European Currency Unit, a notional measure of currency, or an actual currency in the nature of the euro.

Annoyed by the delay, Nelson & Pollard, a publishing company in Oxford, brought out a clearly printed text of the treaty. They also had the foresight to arrange for it to be distributed as a cover disc on the computer magazines PC Plus and Amiga Format, and for it to be uploaded onto CIX (a pre-Internet, bulletin board system) where it became the second most heavily downloaded file distributed.

, the British public owes a debt of thanks to Nelson & Pollard, a private company totally unconnected with the government. But contrast the delay in government publication in 1992 to the accessibility of the Convention, where plenary sessions were broadcast on-line, where all documents were immediately uploaded on the internet and where members of the public and pressure groups could (and did) contact their representatives by email.

The e-IGC

The unprecedented level of openness and accessibility at the Convention can be directly attributed to the establishment of the internet and email as a fast and economic means of disseminating information. This openness has allowed the Eurosceptics (who would not have been otherwise represented in the negotiations) to accurately comment on the text and to begin their campaign against a European Constitution. The campaign against the Maastricht Treaty took half a year to get started. Over the European Constitution, it started from day one.

Whilst the Convention has not been perfect (the formal discussions with civil society were particularly unbalanced and the Praesidium has been accused of being heavy handed), it has undoubtedly been an improvement on previous treaty negotiations. Eurosceptics are right to fight the Constitution, but they should hold fire on the Convention itself. After all, should it be approved, future Conventions may provide the only means of defense.

An e-Referendum?

Hopefully this exercise in e-Government will be complemented by another step forward - an e-Referendum. If Tony Blair is forced to give the British people a say on the Constitution, the vast majority of member states who are constitutionally allowed to hold referenda will be doing so on this issue of vital national interest. With digital television growing by the day, over a third of people in the EU having access to the internet, and 99 percent owning either a fixed line telephone or a mobile phone, an e-Referendum (with postal ballots for the unconnected 1 per cent), would ideally complement the e-IGC.

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