Robert Oulds

Over the summer and autumn representatives of Europe's governments, even the different branches of the European Union, will be in frenetic negotiations over Valéry Giscard d'Estaing's draft Constitution. This dialogue, culminating in an Intergovernmental Conference, will determine how the European Union will be governed.

So far the draft has failed to please both Europe's federalists and those that want to see power returned to national Parliaments. But the Constitution's small print suggests that the EU will evolve from what is essentially a bureaucratic but still intergovernmental organization, with delusions of nationhood, to a body that will have all the trappings of a state called Europe. However, if governments are bold enough to make principled stands then there is still much to play for.

Tony Blair has made a notable stand on preventing Qualified Majority Voting on tax, foreign policy and defence. Yet, there is an issue where the Prime Minister is failing to defend Britain's interests. This concerns the kind of European state that is being built and should concern even those that want more integration. This issue is the potentially illiberal and authoritarian nature of d'Estaing's Europe.

One of the main threats to civil liberties comes from a part of the Constitution conversely titled the Charter of Fundamental Rights. Only in the European Union!

The Charter's final paragraph, Article 54, reads,

Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.

This may threaten freedom, in particular freedom of speech, because it lists subjects that EU citizens have no right to question. The guidance notes as to how Article 54 must be interpreted can be used to defend the EU institutions themselves from those that want to undermine them (Eurosceptics?). Legal precedents justifying the banning of political parties in Austria and Turkey are used as examples as to how that article should be applied. Surely any liberal democratic government should oppose this? Just because some people's and group's opinions may be objectionable does not give others the right to prevent them being voiced. Where will it end? Lets not even start going down that road.

What is more, the provisions of the Charter will be interpreted by the notoriously activist European Court of Justice, removing the role of the British Courts, even the European Court of Human Rights, as the defenders of liberty. Of course there are as yet no penalties for those who challenge the Charter but it creates a blank space for lawmakers to fill.

This all comes against the background of a Constitution that will make the democratic deficit grow ever wider.

The proposed EU Constitution also gives the EU a wide range of new powers to control criminal law. Under the constitution Britain will not be able to use its veto to stop EU legislation that defines crimes, sentences, even legal procedure. Now, no legal system is perfect but the English and Scottish systems have evolved with a particular bent to prevent the innocent from being imprisoned. This, however, is not the aim of Continental law.

Britain will also not be able to veto moves by the EU to expand the area of criminal law over which the Union takes control. The transfer of criminal law from the member-states to the European Parliament and Council may have implications that stretch beyond the abandonment of a system that has on the whole balanced the rights of the accused with the need to control crime. As criminal procedure and law will be set by those that are unaccountable, remote and without the legitimacy that derives from being chosen by those that will be governed then there is the possibility that people will be less inclined to obey. Eroded civil liberties and increased disorder makes a worrying combination.

The EU Constitution, in addition to expanding the powers of Europol, will also demand the standardisation of law enforcement and policing. On these issues the PM's silence is deafening.

A legal revolution and the loss of key rights means that the government can no longer pretend that the EU Constitution is just a 'tidying up exercise'. Valéry Giscard d'Estaing's proposals will create a unitary European state where civil liberties do not apply. The Government should veto the EU Constitution.

This is taken from an article by Robert Oulds for The Parliamentary Monitor