Constitutional affairs: fundamental rights and the Lisbon treaty

Patrick Diamond (left) and Owen Tudor

Fundamental rights and the European Union

Owen Tudor, Head of TUC European Union and International Relations Department, opened the discussion with a rather succinct and elegant description of the dilemma in which the European Union found itself: it was set up in the 1950s with an economic infrastructure to achieve a political purpose; now, it has a political infrastructure in order to achieve an economic purpose.

In common with that change, the British trade union view has changed, exemplified most notably by Jacques Delors in his speech to the TUC in September 1988. Having been opponents of the European Union, trade unions are now supporters of it, the common marker having become also a social market. A particular concern now is that the Lisbon strategy seems to be purely about economic issues, with perhaps a little on the environmental side, but it is essentially silent in the social area. Very little social legislation is now envisaged. Even that little which is under discussion is very slow: the agency workers directive was discussed as long ago as 2002.

Commissioner for trade Peter Mandelson is warning about a possible resurgence of protectionism, but that fear is overstated. It is possible to respond to globalisation not by closing each national economy but by providing better protection for those who would otherwise lose out as a result. This requires a social model.

In that sense, therefore, social rights are a response to globalisation. Simple protectionism aims to protect social rights but at the expense of economic rights. It is possible to protect them both.

Patrick Diamond, Director of Strategy, Equality and Human Rights Commission, said that the debate about the Charter of Fundamental Rights is important and useful, because it highlights the question of what kind of Europe we are trying to build? Is it political? Is it economic? The origins of the Charter are an acknowledgement that Europe is more than just an economic arrangement. Its rights and freedoms offer content to what a social Europe means, which is more than just a market but contains some notion of the good society, an idea that harks back to the 1789 Declaration of the Rights of Man.

An important question is, if this is what it means to be a European citizen, can British citizens see themselves in that light? The UK has opted out of the social chapter and the single currency, and it also seems to have opted out of the very notion of European citizenship. People in the UK are subjects of the crown, not citizens of the state, and furthermore they have a difficulty in conceiving of having a dual identity as both British and European. It is not inevitable that this should be the case: more courage is required in making the political argument to the contrary.

An important feature of the Charter is that it integrates equality firmly into the notion of human rights, giving rights and freedoms to people who do not currently enjoy them. It creates them as a common value of the whole of the EU. Going further than this, the state has a positive obligation to take action to enable people to enjoy their rights, and not only a negative obligation not to prevent people from enjoying them. An additional complication is that, in a diverse society, action to promote equality must also respect and protect diversity rather than seeing it as something to be overcome.

The concerns that business has been raising about the Charter are reminiscent of the industrial relations climate of the 1960s and 70s. It is a pity that the government has conceded ground to business and to the eurosceptics on this issue. The reality is that, over time, the Charter will have an influence on UK law and policy. The rights and freedoms in the Charter are going to impinge on UK law, so it would be better for the UK to embrace this properly rather than to stay on the margins.

Owen Tudor, John Parry and BrendanDonnelly (left to right)

John Parry, honorary member of the bureau, Union of European Federalists, explained that part of the problem is that citizenship combines with rhetoric in forming people’s state of mind. As an example of rhetoric, he quoted from the “Reflections on the revolution in France”, in which Edmund Burke had written: “What is the use of discussing a man’s abstract right to food or medicine? I always advise to call in the aid of the farmer and the physician rather than the professor of metaphysics.”

The UK has tended to discuss charters and bills of rights as though they were exclusively foreign concepts, except that the English invented the whole idea. In the late 17th century, the Convention Parliament drew up a declaration of rights, which was accepted by the joint monarchs William and Mary. This declaration included freedom of speech, free elections, the right of parliament to approve of laws and taxation, and the right of petition, among others, and it aroused interest in intellectuals throughout Europe.

In the United States, these rights were restated in the American revolution – the rebels saw themselves firmly in the English political tradition – and the famous Declaration of Independence is based on them. This means that it is perfectly possible for the English to take an interest in the abstract discussion of rights.

Considering how fundamental and human rights are protected today, the UN declaration is not binding, but the European Convention on Human Rights is more effective. It covers the member states of the Council of Europe, which is rather wider than the European Union. So why does the EU require a separate charter of its own?

One reason is that the European Convention does not cover all the issues that the EU thinks are important. A further reason is that the EU, as such, is not a signatory of the Convention, yet the acts of the EU ought to be governed by human rights principles and guarantees in its own right.

The irony of the opposition to the charter is that it does not contain anything very striking or controversial. It was first adopted as a declaration (without legal force) at the Nice summit, and brings together the various different fundamental and human rights considerations in one place. The ECJ has already started to refer the contents of the Charter in its judgments, not because they are in the Charter per se but because they are the expression of European politics and political thought. They are a set of principles to be interpreted rather than a codification of law, and are now mentioned in Article 6 of the Lisbon treaty.

The subsequent discussion raised the following points:

– The UK is more culturally and religiously diverse than it was 50 or 100 years ago, and there was an important question of whether and how the EU can accommodate such diversity, particular in view of the large and growing minority of people with a Muslim identity.

– The ECHR, and the prospect of EU membership, has an important role in improving the protection of fundamental rights in Turkey. The accession process offers a powerful lever for change, which might be weakened after membership is achieved.

– The Delors speech in 1988 presented a false picture of the extent of the EU’s involvement in social legislation: it was much less than he described, but sadly Margaret Thatcher believed him.

Europe after the Lisbon treaty

Joan Marc Simon (left) and Brendan Donnelly (right)

Joan Marc Simon, secretary-general of the Union of European Federalists, opened the afternoon’s discussion by describing the Lisbon treaty as a real step in the right direction, even though there are some parts missing from the previous constitutional treaty. Some federalists argue for a continued focus on the idea of a European constitution: this is no doubt correct but it is necessary to think about the timing. For the next few years, the priority should be the implementation of the Lisbon treaty, and the meaning of the European elections.

Regarding the Lisbon treaty, lots of aspects remain open to be decided, and the federalists will try to influence those decisions. Examples of where decisions remain to be taken include some aspects of the powers of the EU, the way in which the European Parliament might exercise more power, the integration of the third pillar into the first pillar, the role of the High Representative and the powers of the President of the European Council. Federalists should focus on how the various powers will be used, ensuring the maximum transparency and connection with the citizens.

The main priorities in this field should be as follows:

(1) the president of the European Council will be elected to serve a 2 1/2 year term, but the powers of this post are not clear, nor is its external role. Tony Blair let it be known that he would be interested in the post if it were to be more powerful, but from where should these powers come?

(2) the role of the new External Action Service and how it will relate to the European Commission and the diplomatic services of the member states.

(3) whether the High Representative, who will be double-hatted as both an official of the Council and a Vice-President of the European Commission, will see the former role or the latter as being more important.

(4) the election of the Commission president by the European Parliament after the elections in June 2009, for which it will be open to the political parties to nominate candidates for president as part of their election campaigns. If this happens, voters will know for whom they are being asked to vote, which will increase interest in the elections and also increase the legitimacy of the Commission afterwards. A campaign on this issue will be launched in April.

Federalists should start discussing future scenarios, such as what would happen if there were to be a conflict between the president of the Commission and the president of the European Council. It was unclear what might happen. Two possible outcomes are (1) to merge the two posts, creating a single leader of the European government, or (2) to keep the two posts but with the Commission president serving as leader of the executive and the Council president serving in a more symbolic and formal role.

Brendan Donnelly, director of the Federal Trust and chair of Federal Union, responded by voicing agreement that the most pressing task was to look at the Lisbon treaty to see how it can work in practice. There was a lot of ambiguity which was still to be resolved, and which could be resolved in ways which were more or less preferable.

A central feature of the Lisbon treaty was the establishment as the normal method of taking decisions of the institutional model of Commission, Council and Parliament, with qualified majority voting in the Council and co-decision for the Parliament. When Justice and Home Affairs was first introduced into the treaties at Maastricht, it was on a strictly intergovernmental basis, and this was described at the time as the way forward for the European Union. However, 15 years later, it has gone and been replaced by the Community method.

This transformation has yet to be applied to foreign policy or to the eurozone, but in each case the question should be approached on its individual merits rather than as a package based on the notion of the European constitution.

Turning to the draft Manifesto that had been put before the meeting, he described the referendum results in France and the Netherlands in 2005 as a question mark and not a full stop. The European demos will be served by the European elections having a role in the choice of president of the European Commission. The Manifesto also welcomes the normalisation of the legislative procedure, the greater involvement in the EU of the national parliaments, and the clearer allocation of powers between the different levels of government (although in his view, it was still not clear enough).

He argued that the powers of the Commission president were more clearly defined than those of the president of the European Council: in fact the latter was limited to representing the European Council on issues only when there was unanimous agreement to do so. The terminology of “European government” should generally be avoided.

Regarding the High Representative, he observed that there was a terrible irony in the attitudes of the eurosceptics. The proposal in the constitutional treaty was for the name “Foreign Minister” but not the powers: this was criticised because such a high-flown title implied that there was an intention to increase the powers in due course. The change in the Lisbon treaty, bringing the title in line with the powers, is now criticised because the powers of the High Representative are still the same as those of the previous Foreign Minister, which therefore shows that the former is merely the latter in disguise.

Lastly, he expressed concern about the possibility of future referendums on the treaty. It would not work, he said, if governments attempted to secure Yes votes on the grounds that the treaty was limited and constrained the powers of the Union when everyone could see that its purpose was to develop the Union as a more effective body. National governments played a major role in forming public opinion in Europe, and there was a great danger when their rhetoric and their actions did not match. For this reason, therefore, it was necessary for federalists to address themselves to the national governments and not only to the citizens.

The subsequent discussion raised the following points:

– The role of the External Action Service was to support the work of the High Representative, rather than to replace or undermine national diplomatic services

– The EU is a multi-level system of governance and, amid all the talk of who might become President of the European Council, there is no reason why the higher level is necessarily more powerful than a lower level: why should someone give up being prime minister of a large member state in order to chair four summit meetings a year? The idea that the federal level is always the most powerful is largely drawn from the European picture of America, but the European Union is very different in nature from the USA.

The opinions expressed are those of the speakers and not necessarily those of Federal Union.

Co-financed by the European Union within the programme “Europe for Citizens” 2007 – 2013.

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