The Heads of Government meeting held in Brussels in December 2003 failed to reach agreement on the Constitution proposed for the EU by the Convention, headed by Giscard d'Estaing. The immediate cause of the breakdown in the negotiations was disagreement between Poland and Spain, on the one hand, and Germany and France, on the other, about the relative number of votes each of these countries was to be allowed. At the Nice Summit, it had been agreed that Poland and Spain were each to be allowed 27 votes, only two short of the 29 accorded to Germany and France, but also to Britain and Italy. The referendum on accession to the EU held in Poland had been based on what had been promised at Nice - a particularly important consideration as in other respects Poland had come out poorly from the Nice negotiations. Germany and France, however, saw this narrow difference in voting power as being of sufficient importance to their national interests - reducing their effective voting power each from 18.2% in the draft Constitution to 9.2% according to the Nice Treaty - to justify causing the negotiations over the Constitution to break up in disarray. Britain apparently took a very different view, largely supporting Poland and Spain, despite the interests both these countries had in pushing up the EU budget, to which we are of course a major net contributor, and the dilution in Britain's voting power which would be entailed by backing the Polish and Spanish positions. It appears that we were therefore prepared to sacrifice our longer run voting strength in an attempt to bring together strong enough alliances to defend the various British "red line" issues under threat at the Brussels meeting. Nevertheless, under the draft Constitution's "double majority" proposals - which has to consist of a majority of Member States comprising at least 60% of the EU population - a blocking minority becomes much more difficult to achieve. There are thus risks both ways to countries such as Britain whose interests do not coincide in a more than average number of cases with those of other Member States.
The collapse of the negotiations on the voting rights issue should not be allowed, however, to detract attention from the very significant areas of provisional agreement which had been reached during many hours of discussion leading up to the Brussels meeting. To a substantial extent, consensus had been reached on a wide range of sensitive issues. Large scale additional powers were to be transferred from national control to Brussels. More than 40 new policy domains were to be the subject of qualified majority voting instead of unanimity. The EU Charter of Human Rights was to become legally binding. The EU was to be given the legal status enabling it to negotiate international treaties on behalf of all Member States. There was to be an EU Foreign Minister, complete with a new EU diplomatic corps, a permanent President for the Council and qualified majority voting for the election of all high EU office holders. Proposals were afoot to promote and extend a common EU defence policy. Above all, a consensus had been reached that a new Constitution was required which should have legal primacy over those of the Member States. No-one should therefore underestimate the determination of those involved in promoting the draft EU Constitution to push it through as soon as possible if, and when, they can.
The next stage is likely to involve putting heavy pressure on Poland and Spain to agree to lower numbers of votes. In the light particularly of the terms of the accession referendum in Poland, it is not easy to see how the required concessions could be agreed, but this may happen. If it does, a fresh Summit to enable the Constitution to be ratified will probably take place during the first few months of 2004. If agreement on voting rights cannot be agreed, however, the EU will have to manage without the new Constitution and this may open up a new chapter in its history.
The accession of ten new Member States is still scheduled to take place on 1st May 2004. No-one denies that the arrangements currently operating between the existing 15 Member States are going to become increasingly unmanageable as the number of countries in the EU rises. It may be that by the time the new accessions take place, the proposed EU Constitution will be in existence, although it is by no means certain that this will have occurred. If not, then ways will have to be found for keeping the EU in operation within the existing treaty framework. Those who are opposed to further integration of the existing Members into a unitary EU state may then have a welcome opportunity to see how it might be possible to fashion a much less centralised way of running the EU than the framers of the planned Constitution currently have in mind. Unfortunately, however, it is far from certain that this is the course of events which is most likely to materialise.
The key issues for Britain are that, if the currently proposed Constitution is not ratified, the powers which the British government, strongly reflecting electoral sentiment, do not want to see transferred to Brussels will remain at least for the time being in Westminster. These include a number of critical issues involving economic, taxation and social policy as well as defence, immigration and foreign affairs. The current impasse in the Constitution negotiations may provide Britain with the opportunity to consolidate its opposition to further transfers of powers to Brussels, particularly if support for the Constitution erodes amongst Member States, as may well happen. At least seven countries are likely to hold a referendum on the adoption of the Constitution and if a "yes" vote does not materialise in almost all of them, the Constitution cannot be adopted. If negotiations on the new Constitution drag on, therefore, it could be that it will have to be watered down significantly in terms of the proposed centralisation of powers to make its contents electorally acceptable.
Is it possible, therefore, that we are now seeing a turning point in the development of the EU towards structures designed to secure the co-operation of sovereign nation states rather than the centralised, unitary state developments currently on offer? There is little doubt that moves in this direction would be warmly welcomed in Britain and indeed among the electorates in many if not most other Member States. It may also be the case, in this environment, that some Member States, very probably grouped round France and Germany, will want to push ahead with further integration, independently of other EU nations, as was presaged in the Nice Treaty. If this is what they want to do, it need not necessarily be against our interests to see this happen. We need, however, to be on our guard. A variegated, decentralised and democratic EU may be the aspiration of a large majority of the public but it is not what the political elite in nearly all countries in Europe have in mind. Still less does this vision reflect the agenda of the Commission and the other strongly federalist components of the EU power structure. There is little doubt, therefore, that strenuous efforts will be made to get the currently proposed Constitution or something very similar to it back on track in the near future. This is not the outcome which many of us would have wanted, but unfortunately the dynamics of the way in which negotiations are likely to be conducted may well produce a result along these lines.
If a compromise on the voting issue is reached, and the ratification of the Constitution then becomes the subject of a further inter-governmental Summit, there will therefore be enormous pressure on all the participants to reach agreement on all the remaining outstanding issues. While a consensus has been reached in principle on many of the contentious policy areas, Britain - and indeed nearly all other Member States - have unresolved matters which will have to be covered by the Treaty which establishes the Constitution. We have heard much of "red line" issues on which the British government says it is both determined to stand out and to refuse to compromise. We will have to see what happens, but it is not difficult to envisage a negotiating environment in which the determination not to fail again will put overwhelming pressure on those who want to stick out for one national concession after another, to conform to the majority view. When negotiation exhaustion sets in - as will very probably happen in this case - the temptation not to make an issue out of matters which previously seemed of vital interest may turn out to be irresistible.
It is still more than possible, therefore, that some time over the next year or so that Britain, along with all other Member States, will be asked to ratify a new Constitution for the EU. This will be based on the negotiations which have been going on for the last two years but with the remaining outstanding issues having been resolved. The urge to avoid another failure, however, is all too likely to lead to fewer controversial concessions being made to deal with special cases and requests for opt outs. The final outcome, therefore, may well be a Constitution which is even more centralising than the British government believed was likely to be the case during the run up to the December 2003 Brussels Summit. In these circumstances, it is likely that concessions will have been made on at least some of the British government's "red line" issues. If this does happen, however, the case for a referendum on the Constitution becomes even more pressing. The line the government has always taken is that no major changes to our relationship with the EU are entailed by the Constitution because the "red line" issues will ensure the protection of our sovereignty. If any of these go or are even partly eroded, what is left of the government's already flimsy case that the British people should not be allowed to decide on how they want to be governed in future?