Constitution is in a mess, the Briton who wrote it says

THE TIMES: Constitution is in a mess, the Briton who wrote it says

28 May 2005

By Bronwen Maddox

What started out as a simple statement of principles turned into a monster out of control

THE European Constitution should still be praised for setting out Europe’s common values, and defining the powers of the institutions that run it.

But key sections “got out of control” in two years of drafting. Its authors took on too much, and tried to solve problems they were not equipped to tackle. They were too ambitious, and they started two years too late.

That is the verdict of Lord Kerr of Kinlochard, one of the main authors of the tome which polls suggest will be rejected by French voters on Sunday, very likely followed by the Dutch on Wednesday. “Why did it get so big? We tried to do it all,” he said yesterday.

It is impossible now not to ask what went so wrong. The constitution was supposed to be a simple statement of the principles uniting the people of Europe, which would clearly set the boundaries between the powers of the EU’s institutions and those of its member states.

Instead, thrashed out between 2001 and 2003, it became a 336-page monster, engulfing almost every treaty the EU had devised. Watching the struggles of the French and Dutch “yes” campaigns, it is hard to see how politicians imagined it would be easy to champion.

Valery Giscard d’Estaing, the former French President, is formally recognised as the constitution’s author. But it is hard to overstate Kerr’s influence as his Secretary-General.

Lord Kerr, permanent under-secretary of the Foreign and Commonwealth Office from 1997 to 2002, was admired in those corridors for his pragmatism, for adroit footwork in balancing rival interests and for exercising his taste for acerbic and irreverent observation more or less within the bounds of civil service decorum.

He now mounts a defence of the constitution that is, in essence, a defence only of “part I”, the first of its four chapters. The short (53-page) section includes a statement of principles, a definition of the powers of institutions and rules for voting in a union of 25 members.

“The object of the exercise was to produce something which would look a bit like part I”, he says. It would set out “the purposes, the values and the institutions, defining Europe by those not by geography”.

“I wanted it to be something, when it was all written down, that you could fit in your top pocket.” He adds drily that “for the most part, if you print it small enough, you can do that with part I”.

If the authors had stopped there, it would have been better, he suggests. “Looking back, it was a mistake to take on ourselves the task of producing the whole constitution. We should have stuck to part I and handed the rest of the task to the Council [of Ministers], saying, ‘now you apply this across policies’. But we tried to do it all.”

He thinks that “the parts that got out of control were defence and foreign policy”, as well as some of the legal framework. The 181-page “part III” is particularly at fault, he now feels.

“It is an extension of part I into actual policies with not enough excisions. We didn’t want to knock out bits.”

Part III contains almost every existing treaty, including the Growth and Stability Pact, the hugely controversial financial rules for countries which have adopted the euro currency.

“We were the wrong body [to tackle that]”, he offers, because of the financial complexity and political sensitivity. “We couldn’t have amended it.”

For similar reasons, he thinks that accusations that the constitution has serious economic implications “are a fraud”, both from “dirigiste socialists in France and British free-marketeers”.

“They’re both wrong. It doesn’t have any economic content. It makes the institutions work better, that’s all.” He adds, with self-deprecation: “That’s because we thought ‘Oh s**t, this is difficult stuff’ and we didn’t do anything about it.”

Looking back over the whole exercise, he concludes: “I don’t think we did it incompetently. But it would have been easier to sell to the public as a short, 60-article, institutional treaty.”

And if the French and Dutch now vote “no”? “The biggest effect will be a psychological one. Whether or not it was the right thing to do, it was the thing they decided to do in 2001. If these are four wasted years, Eastern Europeans, for a start, will be a bit taken aback. It is pretty popular [there].”

If the constitution falls, Europe could try to salvage bits, he suggests, such as replacing the rotating presidency with a fixed-term appointment.

Rejection “won’t be the end of the European Union”, he concludes. But, surveying the EU’s current predicament, he says: “So, it’s a mess.”

“The present tangle of treaties will retain their force. The show will stay on the road, but not very well. All the reasons for reform remain valid.”

Lord Kerr now advises Shell on its constitution, to unite its arms, Shell Transport and Trading, and Royal Dutch Shell. “I’m a constitution-writer”, he says. He adds, smiling, but in what must be a rueful assessment of his draftsmanship for Europe, that the Shell constitution “is the one that’s going to work. The one that’s actually going to happen.”

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