Andrew Duff MEP

Treaty Yroublemakers

While headlines are dominated by the referendum question, what is actually going on at the Intergovernmental Conference (IGC) which is drafting the EU's new Reform Treaty? One recalls that the job of the IGC is to transform into proper treaty form the mandate agreed by the European Council on 23 June.

The mandate, drawn up by the then German presidency of the Council, is lengthy, complex and detailed. A group of legal experts has been slaving away since the IGC officially opened on 23 July ironing out technical difficulties and clarifying, where possible, what the mandate means.

Everyone wants the mandate to be respected, except when they have difficulties with it. Poland wants to modify the agreement on decision making procedures in the Council. Austria wants a new clause to stop German students invading its universities. Bulgaria wants a new Cyrillic version of 'euro'. The European Commission wants a communications policy.

Of the three countries that have rejected the original constitutional treaty, Nicolas Sarkozy, the French president, has comprehensively sorted the French problem. His government will be left with the task of explaining why the Reform Treaty is less good, and certainly less simple, than the 2004 constitutional treaty.

The ragged French socialist party will probably be reduced to 'constructive abstention' when the final package comes for ratification before the French parliament.

The Netherlands, with its nationalistic public opinion, still needs to be able to claim victory in the battle to reduce the constitutional ingredients in the new treaty compared with the original version. But the Dutch government has stopped throwing spanners in the IGC works, and has even conceded that the concept of EU citizenship (invented by the Treaty of Maastricht in 1992) should retain its prominence. And it has now done the right thing in choosing the parliamentary rather then the plebiscitary route to ratification.

The worst troublemaker yet, of course, is the UK which seeks to withdraw from several of the commitments made by Tony Blair when he signed up to the original treaty in 2004.

First, the UK wants a legal opt-out from the mandatory character of the Charter of Fundamental Rights. This is bad news for the British people who are to be deprived of the protection afforded by the Charter against abuse of the EU's powers. But it also contaminates the legal value of the decision to make the Charter binding for everyone else. A key general principle of EU law is that rights in the Union are drawn from the common constitutional traditions of member states; the UK now subverts this principle by accepting rights drawn only from the British national tradition. Juridically flawed as it is, the UK opt-out is nevertheless tempting the Poles, for reasons best known to themselves, to join the British outside the Charter. President Putin, at least, will get the joke.

The second British assault on the cohesion of the Union concerns the development of the EU's area of freedom - security and justice. The UK asks for the right to opt into negotiations on the Schengen Agreement and common policies in justice and home affairs. In addition, it wants the right to opt out of any new or revised law at the end of the negotiation. Understandably, others object strongly to this à la carte approach.

With the 'communitarisation' of this whole sector - previously confined to the intergovernmental 'third pillar' - normal disciplines and decision making will apply. So the Commission will initiate policy, Parliament will have the power of co-decision with the Council, and the Court of Justice will have oversight of the arrangements. The UK's third objective at the IGC seems to be to prevent or at least to delay the full introduction of these changes.

As with the third pillar, so with the second. At British insistence, the Reform Treaty attempts to draw the new arrangements for the external action of the Union away from the Commission, Parliament and Court and towards the intergovernmental methodology of the Council. The IGC needs to be reassured that the re-structuring of the treaty will not lead to inactivity or incoherence with respect of the Union's international policies.

The IGC would be wise to be worried too about democracy and the rule of law. A new draft article would allow the Council, acting on its own, to establish rules for data protection in the field of security policy. But parliament's consent should be made obligatory in this sensitive matter, as well as the supervision of the court.

None of these or other issues now exposed at the political level of the IGC should prevent an overall agreement from being reached at the European Council in Lisbon on 18-19 October. But the quality of that agreement, and the aftertaste, matters very much indeed.

It is not my job to demonise the British government, but nor can I explain on its behalf the inexplicable. It is up to Gordon Brown and David Miliband to justify British deviation from the mainstream. What exactly are they trying to achieve?

We have not waded through long years of constitutional hassle in order to see the Union deprived, at the last moment, of a greater capacity to act at home or abroad. There is still time and certainly scope for the UK to demonstrate the sincerity of its European vocation.

Andrew Duff (Liberal) represents the European Parliament at the Intergovernmental Conference.