Home page If there is no European constitution, there can be no British one David Miliband, the Foreign Secretary, continutes to insist (BBC Radio 4 Today programme) that,"We have not got a European constitution". If this is the case, neither does Britain have a constitution. Britishness & constitutions There is in fact a European constitution to which the United Kingdom is bound and this is the existing laws within the European treaties enforceable through the European Courts. Indeed the current constitutional arrangement with which European politicians feel uncomfortable with is in essence a similar arrangement to the constitution of the United Kingdom which is a body of law and agreements rather than a specific and single document which is referred to as a constitution. Indeed, European politicians who are more accustomed to codified laws and rule books there is a lack of understanding as to the constitutional impact of international treaties. On the other hand this mindset regards a document which is actually called a constitution to be a completely different order of significance. This in part explains the open and some say cynical manipulations of Angela Merkel encouraged by Nicolas Sarkozy of France to back off from formalizing the existing European "constitution" by maintaining the substantive content and renamining it as a treaty. This also, in part, explains the open admission on the part of most European leaders that the content of the treaty is largely the same as the old constitutional document. These people literally consider the change in the name alters the constitutional implications of the document. In a country like Britain, where the nature of unwritten constitutions is better understood, the withdrawal of the intent to allow the people to participate in deciding whether or not to accept the treaty is considered to be a failure of the British government sustain a British perspective on the political reality of the situation. The government is preventing the people of this country from deciding whether or not to accept this level of commitment to Europe. Are we agreed then? If the document is no more than a tidying up exercise and the "red lines" are in place, then a referendum would provide, for the first time, an opportunity for the people of Brtain to decide, after 30 years of stealth legislation and literally thousands of laws and regulations passed onto the statute books to assess and decide if we should continue to place our legal system and sovereignty under the supreme authority of the European Courts. No treaty could commit a people to be subjected to arbitrary legal decisions In the recent British Strategic Review article, "The Real Crisis is already here" (pdf version here) it is explained how the European Courts, as a result of a somewhat incompetent management of the last two enlargements, now have some 37% of their judiciary from countries of former one party regimes where they were hardly considered to be impartial but rather very open to political influence. This continues to be the case. Just because such countries are now members of the European Union does not mean bad judicial habits have changed. For the people of Britain this is of significance because there is no ultimate appeal against European Court decisions on the part of governments, companies or individuals. These courts have no notion of the British concept of legal decisions being taken without reasonable doubt and they do not pretend to avoid the arbitrariness which results. The normal British safeguards against arbitrariness such as unanimity in decisions does not exist with panels of judges voting on the basis of majority and no desenting opinions being published. The other British safeguard against arbitrary judicial decisions, the community conscience present in court in the form of a jury has never been given consideration. The absense of practical safeguards and mechanisms to protect individual freedom from arbitrary judicial decisions has always been a matter of concern. It has now become a significant flaw placing the whole European project in doubt. As a result of the last two major European Union enlargements the situation of the basic freedoms of everyone in the United Kingdom has become precarious and the government can do little about this. This increased politicization and arbitrariness of European Court decisions has two fundamentally important impacts: it has changed the constitutional implications of all European treaties agreed to so far, indeed it has weakened or invalidated all agreements since their ultimate application rests upon the assumption of a stable, coherent and impartial exercise of European Law all future commitments should therefore be subject to the agreement of the people Roll your own European constitution? The European legal institutions which are supposed to provide the bedrock of consistency through impartial decision-making in support of European treaties, past and contemplated, risk through lack of impartiality becoming inconsistence in their directives as a direct outcome of interference from political parties. This means that the existing laws and treaties which make up the current European constitution have lost their objectivity, status and political value by becoming objects to be manipulated by political parties who "roll their own outcomes" on the basis of arm-twisting and cash diplomacy. Such mainpulations of internal European order and justice are not just limited to European member states but can also involve non members with specific interests in securing decisions to their advantage. Parliamentary democracy? Gordon Brown has stressed that in place of a referendum the right place to consider the treaty is Parliament. Under the party whip system, the vote in Parliament is a foregone conclusion for a government which enjoys a Parliamentary majority arising from the first-past-the-post electoral regime whilst having the support of just 19% of the electorate. The exaggerated Parliamentary majority, as opposed to any majority in electorate support, arose from people voting on a range of issues and not just the issue of referendum. Therefore the MPs in Parliament do not in fact know the views of their constituents on this matter nor, would it seem as far as the government is concerned, do they care. But Gordon Brown has been keen to stress in the recent past of the importance of party discipline in delivering on their "electoral mandate" set out in their electoral manifesto commitments. One of these was to hold a referendum on the European constitution. In the light of this promise and in the knowledge of the shifting sands eroding the legitimacy of European Court decisions Gordon Brown does not really seem to be of the people, he somehow does not appear to respond in the way a rational British person would be expected to respond to such a fundamental issue. In the British context and as someone who recently has been talking about the importance of Britishness it is perplexing to observe Gordon Brown's ability, when it suits him, to dismiss the significance of some of the more important and timeless aspects of British values as reflected in our traditional views of constitution, justice and the defence of individual freedom. Posted 28th August, 2007 updated: 30th August, 2007; 3rd September, 2007.