Despite the rejection of the European constitution by French and Dutch voters, says Daniel Hannan, it will be implemented

You may have got the idea that the European Union (EU) constitution was dead: that the French had felled it, and the Dutch had pounded a stake through its heart. If so, think again. One way or another, the constitution will come into effect. Indeed, much of it already has.

Supporters of the constitution fall into two camps. Borrowing the terminology of the German Greens, we may call them fundis and realos. The fundis still believe that the constitution can be salvaged, perhaps with one or two cosmetic changes. With Turkish membership off the agenda, and new governments in place in France and the Netherlands, they plan to put the draft back before the voters who will, so the argument goes, no longer want to use Europe as a club with which to beat their politicians.

The realos believe this would be a mistake. They are not especially bothered about public opinion. Their concern is simply to keep the integration process on course. If people don’t like it, it is because they are suffering from what Marxists used to call “false consciousness”. As a way of sidestepping future referendums, they want to use the existing treaties to ram through as much of the constitution as possible; the loose ends can be tied up later.

The Brussels apparat

Fundis include most of the Brussels apparat: the Commission, the European Parliament and, significantly, the European Court of Justice, which has already started ruling as though parts of the constitution – notably the Charter of Fundamental Rights – were in force. They also include the more federalist heads of government. Jean-Claude Juncker of Luxembourg, for example, has solemnly assured Members of the European Parliament (MEPs) that “in my heart, I do not believe the French and Dutch people voted against the European Constitution”.

This sentiment may strike us as funny, hallucinogenic even. But Juncker is in a better position to decide what happens next than we are. Since the “No” votes, three more countries – Malta, Cyprus and Luxembourg itself – have ratified the constitution, meaning that a majority of the 25 member states has now adopted it. Many MEPs and some commissioners argue that, if enough states ratify, the constitution might be formally resuscitated, with provision being made for the non-signatories to join in later.

The realos make up most of the 25 governments, as well as a few of the more hard-
headed MEPs. They take the view that, if every transfer of power to Brussels had had to be referred to the national electorates for approval, the EU would never have got to where it is today. Its method, rather, has been to extend its jurisdiction into a new area and then, often years later, to authorize that power-grab in a treaty retrospectively. They intend to employ this method again and they, rather than the fundis, are likely to get their way.

A voteless coup

Despite the fact that the constitution has no legal status, many of its elements are either already in force or in the process of being established. The EU is, for example, setting up a rudimentary diplomatic corps called the European External Action Service. It is building a European Public Prosecutor’s office. It is behaving as though the Charter of Fundamental Rights already had legal effect. None of these things has any authority outside the constitution, but the EU institutions argue that the approval of that treaty by the 25 governments is all the permission they need.
In this spirit, the EU has established an External Borders Agency, a Human Rights Agency, an Arms Procurement Agency, a Space Programme and dozens of other institutions foreseen by the constitution. It is behaving, in short, as if Juncker were right, and the French and Dutch had in fact voted “Yes”.

In the European Parliament’s Constitutional Committee, I ask my federalist colleagues: “Where in the existing treaties does it say you can do this?” “Where does it say we can’t?” they reply. I protest that the framers of the constitution obviously felt a specific need to mandate these institutions and policies, which surely implies that they could find no authority for them under the old legal order, but I am told to stop being so literal-minded. The EU has always been a political as well as a legal organization, and it does not intend to let the dots and commas of the treaties stand in the way of deeper integration.

True, there are some things that cannot be done under existing treaties, notably the end of the rotating presidency, the new system of weighted voting and the granting of legal personality to the EU. But these things could be nodded through at a small Inter-Governmental Conference. After all, the 25 states agreed them all in principle two years ago.

Here, then, is my guess as to what will happen. For the next couple of years, the EU institutions will adopt as much of the constitution as they think they can get away with. Then the heads of government will meet and agree the rest. These new changes, they will say, are far too limited to necessitate a new series of referendums (they won’t make that mistake again). But they are needed if the EU wants to admit Croatia as well as Romania and Bulgaria, because the existing dispensation, as agreed at Nice, provides for only 27 member states.

Thus, two years from now, we will have the constitution – or at least 99% of it. It will not have been smuggled through the back door; it will have swaggered jauntily through the front. And no one will have had the right to vote on it.

CV Daniel Hannan

Daniel Hannan has been Conservative MEP for south-east England since 1999. He sits on the European Parliament’s Constitutional Affairs Committee. He writes for the Telegraph titles and for Die Welt.