BEWARE THE FUNDAMENTALISTS
How to get a European constitution past the sceptics: call it a 'charter of fundamental rights
and freedoms. Be afraid, says Daniel Hannan IMAGINE that you are a committed European federalist. What single item would you most want to see included in the next EU Treaty? A common tax poli- cy? A European army? A police force? All these matters are on the agenda. But there is one prize greater than all of them: a prize for which Euro-nationalists would be prepared to make almost any conces- sion. They want the EU to be given that final and definitive attribute of statehood: a written constitution.
A constitutional convention has been at work in Brussels since December. It com- prises 62 representatives from the Euro- pean Parliament, national parliaments and member governments, and plans to com- plete its work by the end of the year, in time for the new constitution to be incor- porated into the Treaty of Nice.
You may be wondering how something so monumental has passed you by. The short answer is that the EU has learnt to disguise its most ambitious projects as something else. Instead of calling its nascent constitution a constitution, it refers to it as a 'Charter of Fundamental Rights and Freedoms'. Brilliant! Who could be against fundamental rights? Any Euro-sceptic who ventures to oppose the scheme can now be howled down as an opponent of fair trials, freedom of wor- ship and the rest of it. One can imagine the Eurocrats giggling at their own clev- erness like Mr Toad in The Wind in the Willows.
So, let us be clear from the outset. What is going on has nothing to do with basic freedoms. Every member of the EU is already covered by the European Conven- tion on Human Rights, the UN's Univer- sal Declaration and a series of lesser accords. The charter has been proposed, not in response to some monstrous human-rights violation in Western Europe, but because its exponents want it to be justiciable before the European Court of Justice. At this stage it would cease to be a declaration and become a constitution. Europe's judges would be empowered — or, rather, obliged — to strike down any national legislation which they deemed to contravene its principles. This seems obvious to everyone except Tony Blair. The Prime Minister has been reduced to repeating, over and over again, that the charter won't have any binding force. It'll just be a declaration, he says: a sort of signpost, pointing Europe's citizens towards the rights they already enjoy.
One sometimes has to gawk admiringly at Mr Blair's brazenness. He doesn't believe for one moment that the other governments are going to put in a year's work merely to come up with a document that restates their adherence to existing accords. And, even if they did, it is incon- ceivable that the Euro-judges would allow matters to rest there. As far as they are concerned, a charter is a charter. It doesn't matter whether it takes the form of an annex to the treaties or a declaration by the heads of government. Once it's there, they will begin to build its principles into their rulings.
So, what are these principles? Some of them are uncontentious: equality before the law, no wrongful imprisonment and so on. But the charter is a child of its time, and its framers are much concerned with such matters as social entitlements, the rights of asylum-seekers and the treatment of minorities. In one early version, there was even a proposal for mandatory mater- nity leave of a specified length.
Throughout the document, there is a failure to distinguish between a right in the sense of a freedom — freedom of speech, freedom of association — and a right in the sense of an entitlement: a right to health care, a right to housing. Thus, for example, draft Article 22: 'Any discrimina- tion based on sex, nationality, race, colour or ethnic or social origin, language, religion or belief, political opinion, association with a national minority, property, birth, dis- ability, age or sexual orientation shall be prohibited.'
As if this list were not comprehensive enough, several amendments propose to add 'handicap', 'genetic characteristics' and 'state of health'. If you read this article literally, it would suggest that an opera company could be prosecuted for failing to hire men as sopranos. The Labour party would be in breach if it refused to appoint Tories as its press spokesmen. The Church of England would have to offer its livings equally to Anglicans, Hindus and atheists.
When I put these objections to one of the MEPs on the convention, she waved her hands at me impatiently: `Ach, you English! Everyone knows what it means.' A year ago, that remark would have shocked me. Now I have come to realise that it is simply a cultural difference. The argument that the dots and commas of the law should stand in the way of political imper- atives is regarded in Brussels as peculiarly British and more than a little anal.
In the House of Commons last week, Robin Cook repeated the official govern- ment line: the charter would not give the EU any new powers — all it would do is oblige the institutions of the EU to oper- ate within the same constraints as the nation states. This, as he is well aware, is nonsense. Among other things, the charter demands the abolition of the death penal- ty, and proposes that no criminal should be extradited from the EU to countries which retain the practice (which, by the way, would presumably make the union a haven for every convicted murderer in the world). Such articles could hardly be bind- ing on the EU institutions rather than its members; their effect, as Francis Maude recently pointed out, is to handcuff the nations.
But Mr Cook's objective is not really to convince us of the correctness of his inter- pretation. It is simply to make the charter sound as boring and technical as possible. As long as people are put off thinking about it too deeply, the whole debate can be characterised as pro- or anti-human rights. Thus, Mr Cook primly told his Tory shadow: 'It is a curious mindset that equates human rights with handcuffs.'
So, there we have it. Anyone who is opposed to the Charter of Fundamental Rights and freedoms is, ipso facto, opposed to fundamental rights. I am reminded of a unilateralist pressure group in the 1980s called the Movement for the Preservation of Life on Earth — which the rest of us, by implication, were utterly against.
Labour has calculated that we are not interested enough in our constitutional heritage to bother about defending it. If they are right, we shall soon see European judges telling us that we have a 'fundamen- tal right' to a minimum wage at a particu- lar level, or a 'fundamental right' to abortion on demand. Then again, if they really are right, perhaps we deserve it.
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