A Yes to Nice will worsen existing imbalances and inequalities in the EU's organisation, writes John Rogers SC
In 1957, with the Treaty of Rome, the European Economic Community (EEC) and Euratom were created so as to create a common market for goods and to regulate the nuclear industry in the member-states. In the EEC it was agreed that all tariffs and barriers to interstate trade would be totally removed and this was successfully achieved.
In 1973 Ireland joined the Community, together with the United Kingdom and Denmark. Greece came in in 1981 and Spain and Portugal in 1986. Then came Finland, Sweden and Austria in 1995.
These enlargements were significant in themselves but what was more significant was the ongoing agreement by member-states of the Community that the range of tasks that Community institutions might tackle should be extended. We will remember well when reform in the area of competition became a focus for Community action in the mid and late 1980s and met with success and approval by the people.
The Milan Summit which led to the enactment of the Single European Act which put into the treaties additional areas and tasks which would lead to a much more integrated Community. Health and safety, economic and social cohesion and environment became priority policy areas.
The Single Act was truly revolutionary. Not only were the 12 member-states able to agree on these common areas of activity for the institutions of the Community but they also agreed to significantly alter how the Community worked.
The relationship between the institutions of the member-states and the institutions of the Community was transformed, so that Community institutions had far greater power than before. Essentially, in major areas of activity, the Community could decide matters through a qualified majority vote (QMV) of the council. Fifty-four votes out of seventy-six would carry an issue in most areas. No country could block a measure unless it could form a coalition with at least two others. After the Crotty decision of the Supreme Court in April 1987 the people ratified the Single Act at referendum and they thereby approved of the abandonment of the veto in major areas.
The Single Act itself sought to compensate for this by establishing a procedure for "co-operation" between the Council of Ministers and the European Parliament. Co-operation meant that the Parliament could consider and amend or reject a common position of the council so that the Commission had to re-examine the entire proposal on the basis of the Parliament's decision. When the Commission resubmitted the proposal to the council it could decide the matter by qualified majority but it could only amend the proposal or revert to its original proposal if the council could muster unanimity.
The European Parliament had become a parliament rather than an assembly with the EP elections in 1979. The Parliament had pushed for more powers before the Single Act and was a source for many of the reforms in it. The Single Act brought the Parliament in from the margins through the co-operation procedure, which gave it potential for a central role in Community and Union law making.
But with the extension of the role of the Community's institutions into new areas of activity and with these altered and Eurocentric procedures for decision-making, the capacity for national parliaments to make a direct impact on decisions was significantly reduced. In short, more power went to the centre, with national parliaments, whether they were in Bonn or in Dublin, left at the periphery.
All of this was endorsed by the people and in 1992, by endorsing the Maastrict Treaty, they approved the creation of a Union which again shifted significant areas of decision-making into the realm of the European Council and the European Parliament. Since then the co-decision procedure provided for in some 15 articles of the Maastrict Treaty, dealing mainly with internal market regulation, allows the Parliament to block a measure.
The new Union created by Maastrict, with its Three Pillars of the Community, Common Foreign and Security Policy and Justice and Home Affairs Matters, was a unique constitutional construct in that in the area of the two pillars comprising Foreign and Security Policy and Justice and Home Affairs, decisions were to be made intergovernmentally with no involvement for the Community's Institutions. So in voting for Maastrict, the people approved not just greater integration of the European Community with greater economic and monetary union thrown in, but they agreed also that the Union might act intergovernmentally in the areas of foreign and security policy and in justice matters.
The next step in the process of integration was the Treaty of Amsterdam of October 1997 under which Common Foreign and Security Policy was brought within the competence of the institutions of the Community.
Common Foreign and Security Policy is to include "all questions relating to the security of the Union, including the progressive framing of a Common Defence Policy. . .should the European Council so decide". The Common Defence Policy would have to be adopted by each member-state in accordance with its constitutional requirements and it is plain from the terms of the Amsterdam amendments that decisions having defence implications are to be made without prejudice "to the specific character of the security and defence policy of certain member-states and shall respect the obligations of certain member-states which see their common defence realised. . .under the North Atlantic Treaty. . .".
Common foreign and security policy is to be decided by the council acting unanimously. However, member states may abstain by making a formal declaration and in such case a member state will not be obliged to apply the decision "but shall accept that the decision commits the Union in a spirit of mutual solidarity" and the Member state concerned "shall refrain from any action likely to conflict with or impede Union action based on the decision and the other member states shall respect its position".
However, there is a significant derogation from the principle of unanimity. When adopting joint actions, common positions or taking any other decision on the basis of a common strategy and when adopting any decision implementing a joint action or a common position, the Council may act by qualified majority and it is only if a member of the Council declares that "for important and stated reasons of national policy", it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken and the Council may by a qualified majority request the matter to be referred to the European Council for decision by unanimity. Decisions relating to joint actions and common positions must secure 62 votes cast by at least 10 members.
The changes effected by the Treaty of Amsterdam, whereby common foreign and security policy has been brought within the remit of the Community institutions and whereby decisions may be made by qualified majority with Member States bound to accept such decisions as committing the Union, will inevitably make for much greater coherence at least in the expression of the Community's position. It is possible to see Maastrict and then Amsterdam, which brought the integration of common foreign and security policy into the Union's institutions, as the product of a French response to German reunification.
From Ireland's point of view, while the treaty provisions are not to prejudice the specific character of security and defence policy of countries like Ireland, which maintain a position of traditional neutrality, it seems inevitable that the provisions of Amsterdam will lead to increasing pressure on Ireland to participate in adopting common positions and joint actions on the basis of a common Union strategy. This is because the terms of Amsterdam presuppose participation in decision-making by all Member States of the Union. Thus, when issues are brought before the Council for decision, a Member State like Ireland will be forced to abstain in the manner envisaged which requires an abstaining State to "accept the decision commits the Union" and such State must "refrain from any action likely to conflict or impede Union action based on the decision." It seems inevitable from these provisions that Ireland's foreign policy can no longer be "independent" where decisions are taken by the Union. Clearly, there is a fall-back position in that Member States may declare for stated reasons of national policy that they intend to oppose the adoption of a decision being taken by qualified majority and in such event a vote will not be taken and the matter may be referred to the European Council for decision by unanimity. But if that occurs regularly the whole common foreign and security policy will be a shambles.
Putting the matter in its simplest and most stark terms, strictly and properly speaking Ireland cannot have an independent foreign policy which runs counter to decisions adopted by the Union. This may sound surprising but it is the reality and it is what the people voted for in approving Maastrict and the Treaty of Amsterdam.
My purpose in setting this out is to show how far and with what rapidity European political integration has proceeded over the past decade. In fact the Union has come more to resemble a federation than an intergovernmental community or confederation. In a federal system of government sovereignty is shared between the federal government and the constituent states in an arrangement whereby there are usually two layers of government with specific functions allocated to each. Central government is usually in charge of foreign policy, defence, immigration and currency, whereas the constituent states will be responsible for areas such as education, health, law enforcement and, perhaps, taxation.
The institutions of the Union now clearly have jurisdiction to make laws in a very broad range of tasks and policy areas. This ranges from foreign policy through monetary union to the regulation of the internal market through such diverse policy areas as competition and waste disposal. In fact it is hard to identify areas of domestic Member State government which are completely free from regulation by EU laws.
We no longer have a truly intergovernmental Europe in which the validity of a decision depends on the consent of the participating sovereign governments. Nor do we have a fully developed federal Europe in the sense in which the United States Constitution provides representative federal government. But the treaties, although they do not proclaim in terms a federal form of government, have plainly moved us more and more towards the creation of a federal government in all but name. So there is a sense in which we are now in the worst of all worlds, with the Union having incrementally and on an ad-hoc basis moved further and further into federalism, without having given to itself a constitution which sets out basic principles of government.
For instance, whereas it is fundamental to the United States Constitution that all States are equal in at least one of the two Houses of Congress, the Senate, quite the opposite is the position under the Treaties of the Union which have now evolved to a state where, saving those areas where the veto may be applied, it is the case that both in the European Council and the European Parliament there is a disparity and inequality in the representation of the Member States. The fact that the United States Senate is composed of two representatives from each of the States of the Union means that in that Chamber there is true equality between the States so that the consent of the representatives of the majority of the States is at all times required both to make and to block federal laws. This is not so in the case of the European Union, where in the Council as few as three of the larger States can block a proposal although it may have the support of as many as 12 of the 15 Member States. This results from the unequal weighting of the voting strength of the Member States in the Council, whereby, for instance, the United Kingdom, Germany, France and Italy have 10 votes each whereas Denmark, Finland and Ireland have three votes each.
This inequality in the Council and at the core of the Union's institutions will be enhanced if the Treaty of Nice is ratified. Whereas the voting power of the big States will be almost trebled from 10 votes to 29, that of the smaller States will be slightly more than doubled. It is said this is to compensate the larger States for the loss of one of their two Commissioners in the Commission. But it is difficult to understand how the eradication of one inequality,whereby the larger States give up one of their two Commissioners, is to be paralleled by making a more significant inequality in the Council of Ministers, where voting power really counts.
The European Parliament has been given a more substantial role to the extent that now it has a power of co-decision in a range of areas in which the Union is entitled to make laws and fix policies. In effect, the Parliament now has a right to reject by veto laws promulgated by the Council. Given that the European Parliament is broadly representative of the populations in the Member States, with the larger States having proportionally greater representation than the smaller ones, what is the justification for the larger States retaining, as it were, a double majority in each of the law-making chambers of the Union?
It is as well to say that although "co-decision" has extended the power of the Parliament, it remains in a subordinate role in the constitutional framework for decision-making in the Union. This is because although it has a right of a veto, it does not have a right of initiation. This springs from the initial intergovernmental nature of the decision-making process of the EEC. So we can see that the passage of the Union from intergovernmentalism through to federalism has not been matched by the necessary consequent adjustments in the Institutions of the Union and particularly in its two law-making chambers, the Council and the Parliament.
For me the question of how to vote on the Nice Treaty is linked wholly to the future of representative democracy in Europe.
In this context we have to look at the Union as potentially comprising 27 constituent States. Regrettably, the Nice Treaty has complicated the Council decision-making process to a point where I predict it will be unworkable with 27 Member States. This has occurred particularly with the introduction by Nice of two new criteria involving a requirement that a QMV decision be carried by a majority of the Member States and that such majority should have the support of 62 percent of the Union's population.
These provisions, when linked to the requirement for unanimity in the residual areas, will stall progress and leave the Union without the capacity for transformation.
These factors make it likely a core of Member States will use Nice's provisions for enhanced co-operation to get around the blocking of policies in a European Union of 27 States.
Regrettably, if Nice is approved the chance will be lost to construct a constitutional settlement built on equality for the constituent Member States in what is already a federal European Union.
The avoidance of ever greater centralisation of decision-making and the displacement of the assumption that all progress can be measured in economic terms requires such a constitutional settlement so that citizens of the Union can come to believe they are participating in a democracy.
I have not been persuaded by those who rely on economic arguments or those who say we will be damaged in our influence in the Union if we vote No.
For me the core issue remains that Nice will increase the existing inequalities in the treaties so that we will have a greater democratic deficit and, ironically, an unworkable decision-making process in the Council as well.
The Convention on the Future of Europe is addressing questions raised about the democratic deficit in the Union.
However, the decision has already been made that the deliberations of the Convention will not come before an Intergovernmental Council until 2004.
If Nice is ratified the imbalances and democratic deficit in the Union will be extended into what will then be an enlarged Union, making it more difficult to find agreement in 2004 on the issue of bringing equality for Member States into the Institutions of the Union and particularly the Council.