Does the EU need a constitutional treaty?: No argues Diarmuid Rossa Phelan, lecturer in law and Yes says Pat Cox, President of the European Parliament
NO
The constitution cannot be judged before finalisation and this contribution does not do so.
Technically, according to the Court of Justice of the European Communities since the early 1990s, the existing treaties are a constitutional charter. Consequently Europe already has, in Euro eyes, a constitutional treaty. Present proposals are for popular direct ratification by the peoples of Europe. The proposed constitution is not a treaty enacted by states under the originating rule of international law that treaties be observed. Consequently the proposal is not for a treaty, but for a constitution. The mechanism for enactment is very important.
Whether Europe needs a constitution depends on what Europe needs one for. For promotion of federation, yes; for preservation of member states' independence, no. To bring Europe close to its citizens, yes to a constitution, if "closer" means direct but minimal popular control. But no if "closer" means greater indirect popular control through states. The people of a small state can control more, indirectly, through member-state representation (1 of 15) than directly through European-wide voting (Irish voting population approximately 1 in 100). No-one has any real control at all at the scale proposed.
The present proposal provides that EU legal powers derive from the constitution, not the member states (draft Articles 8.2, 10.1, 10.2). Member states' residual powers are dependent on the constitution (draft Article 8.2). The constitution prohibits the exercise of former powers of member states which conflict with EU power (draft Articles 10.1 and 10.2).
Europe's pressing need is not Europe. Europeans' pressing need is less institutions in government and more time to live one's own life.
Not more proclamations of human rights. Not more and faster federation in exchange for promises of future results, but present results from powers already transferred, present responsibility for the exercise of existing powers, present enforcement of existing rules, present creation of infrastructure to allow people to move, and peoples to breathe. Continuing focus on more Government, on the old federal project of "ever closer union" to answer post-second World War concerns, misses the present pressing problems of European humanity.
A new debate has begun within peoples' lives outside the terms of the old post-war European federal vision, and indeed outside those institutions: how to live around the massed demands of massive government. More government, further away, will not reduce alienation, but increase it. Government is multiplying and society is atomising.
This is not a personal matter of private life choices. People spend much of life paying for the cost of and dealing with government. The point of government is maximisation of life possibilities, delivering the payback for the surrender of personal liberty to legal constraint. The problem is not that European government inadequately affects people in their daily lives, but that government, European, national, local, regulatory, affects people too much already.
Government is not just close, it is pervasively intrusive. Much of life has become government time. Simple example: domestic travel. Citizens' contribution: VAT and VRT on car, road tax, NCT, insurance, tax on petrol, parking. Government contribution: lousy infrastructure delaying people from working to pay tax.
Focus on more government structure misses the imbalances which all present governments fail to address. This project of realising personal freedom corresponding to less government is the practical opposite of the proposed constitution's entrenchment and promotion of European values worldwide (draft Articles 2, 3.1, 3.3, 3.4). Does Europe need a Constitution? If necessity implies priority, then Europeans need time and space in their lives; Europe does not need a constitution.
Diarmuid Rossa Phelan is a barrister and lecturer in law in Trinity College Dublin
YES
After 50 years of our shared European experience, I believe that the time has now come for us to extract from the bulk of existing European texts and treaties something which is clear, comprehensible, simple and which states who does what, sets out the objectives which unite us and spells out our rights as citizens. Classically all these features make up a constitutional order.
The forthcoming enlargement of the EU makes a constitutional treaty not just desirable but necessary. An EU constitutional treaty should not be confused with national constitutions which will remain fully intact - it should be complementary to the national constitutional arrangements and not in competition with them. It should articulate the core European values of democracy, human rights and the rule of law.
I also believe that a constitutional treaty needs to convey what binds us together as Europeans. I remember in an especially moving speech in the European Parliament made by Vaclav Havel some time ago, he talked about the need to put "soul" in Europe, to animate it with its own contemporary values. Therefore, such a statement must find expression in terms which can be understood by people who are not unduly or excessively interested in detail.
I am struck by how in the United States politicians can visit schools and talk to young children about the Bill of Rights and what it means to be connected by those rights. It cannot be beyond our European imagination to strive for such clarity - Europe's citizens have demanded and deserve as much.
The Convention on the Future of Europe, which has been assigned the role of preparing a draft European constitutional treaty, marks an open and innovative step with regard to European integration.
From the outset it was the European Parliament which proposed the establishment of the Convention as a way of opening up the debate on the future of Europe to a wider level of democratic participation in an open, inclusive manner.
I believe that the Convention is making real progress with a greater role and sense of ownership for national parliaments. A number of significant proposals are gaining consensus such as on the creation of a single legal personality for the European Union, on the incorporation of the Charter of Fundamental Rights, on the simplification of the European legislative and regulatory process and on a generalised extension of qualified majority voting at the Council, with the counterpart of co-decision by the European Parliament.
All the while this exercise is founded on the recognition that member-states will remain the essential repositories of their national and regional civic, political and cultural traditions. These, and many other matters, which in the past proved elusive, appear to be gaining majority support at the Convention today.
A constitutional treaty based on rights and values will bring greater clarity and efficiency to the European order. The EU needs an enduring constitution that will be able to meet the challenges that lie ahead - something that we in Ireland can particularly appreciate given the treaty and referendum fatigue which we have suffered in recent years.
It is certainly promising to see the green shoots of consensus that are emerging from the Convention. This tends to suggest that in future the Union will have the means to fulfil its ambitions.
Pat Cox is MEP for Munster and President of the European Parliament