Magna Carta and the Déclaration des Droits de l’Homme et du Citoyen: Past, Present and Future
11th June
Lancaster House
Panel 2: Rome and Brussels
Sir Stephen Wall
I am taking my cue from Lady Justice Arden who rewrote the rules by saying that we don’t have to
answer all of the questions on the exam paper. I’m going to try and answer 3 of them:
 What are the powers that the European Union has over member states?
 Should the European Union have more or less power?
 Does it have democratic legitimacy?
The powers of the European Union are those which have been given to it by its members. Actually,
although in this country we tend to think that they are very extensive, the competencies of the
European Union are rather limited. This was the besetting sin of the famous (or infamous) European
Constitutional Treaty, which fell foul of the referendums of France and the Netherlands in 2005. By
calling itself a Constitutional Treaty, it led those who hoped that it was indeed that, to believe it to be
much more than it was. By giving it this title, it made people in Britain and elsewhere fear that it was
creating the famous single state called Europe. Even today, with some extension of powers (about which
I will talk), the European Union does not, by and large, have competence in a significant number of
areas. It doesn’t decide our primary, secondary or higher education systems; it doesn’t decide our
health systems; it doesn’t decide how we run our armed forces or our defence policy; it doesn’t, by and
large, decide our fiscal policy. When I was in Brussels and there were big debates about moving to
majority voting for tax, I was wont to remind my colleagues that Parliament had cut off the head of the
King in order to assert powers over tax policy, and we were not about to change our view. In so far as
the European Union has extended its competence into areas like environment and social policy, it has
done so because of the collective will of the member states. Social policy is controversial, but the
general view among the member states was that you cannot have a single market which does not
embrace social policy (including welfare policy compatible with the freedom of movement of citizens).
As far as environmental policy is concerned, successive governments throughout the European Union,
including this one, have recognised that environmental policy is classically an issue and a problem which
does not respect frontiers. The same is true, in theory, of energy policy, and I would have the say that
British governments have been among the least laggard in the European Union in this respect.
Actually one of the big failures of the European Union is, so far, not to have got itself a comprehensible
and workable energy policy, despite attempts over the years to do so.
Sylvie referred to the words that are in the original Treaty of Rome: “Ever closer union among the
peoples of Europe”. That is an illustration of the dilemma of the European Union, because on the one
hand, “ever closer union” is an aspiration, and there is no doubt that the founders of the European
Union reaffirmed it in various declarations subsequently, including, very willingly the British government
led by Ted Heath and the subsequent government led by Harold Wilson: a commitment to political
union and, indeed, economic and monetary union. So we have, in those words, an aspiration on the one
hand, but also a description of what actually happens. David Cameron’s objective in the present
negotiations is to dis-apply that objective of ever-closer union. That may be possible with some fix or
other, but the fundamental reality is that every time we legislate collectively in the Council of Ministers
and the European Parliament at European level, we are creating “ever closer union” because the
fundamental fact of life of the European Union is that when you reach agreements at 28, self-evidently
you cannot have national parliaments in any one of the member states legislating for separate and
potentially conflicting provisions. That has been, I think, at the heart of the British dilemma. We do
invest, even today, a lot of our sense of national identity in the role of the national parliament, and we
have always found it quite hard to come to terms with the fact that the residual power of parliament in
European legislation is basically “do we remain and member of the European Union or not?” The group
of 50 Conservative MPs who have put forward an alternative policy appear to be arguing that you can
have a reversion to national sovereignty while remaining a member of the European Union. Phillip
Hammond has pointed out that what they are actually asking for is for Britain to leave the European
Union.
What about should the European Union have more or less power? It comes down to the same thing.
Margaret Thatcher’s famous “no, no, no” in parliament shortly before her downfall was not “no, no, no”
to the single currency but “no, no, no” to a speech made by Jacques Delors, the then president of the
Commission, in which he suggested that the executive of the European Union should be the
Commission, answerable to the European Parliament, with the European Council (the heads of
government) as a senate. At the time, Margaret Thatcher was the only person to say vocally what,
probably, most people felt. Nowadays you would not find many people in the European Union who even
pay lip service to what Jacques Delors said, but he was articulating a perfectly viable thesis, which is that
if you believe in the objective of ever-closer union, then that sort of federalist construction is the logical
implication of what is in the treaties. The whole issue for the EU has been wrestling, on one hand, with
that as the objective, and the other, the fact that democratic power, in the right of the citizens to get rid
of governments, rests at the national level. This has been the dilemma, and we see it every day, in the
Eurozone. It set itself certain objectives which, as Margaret Thatcher said at the time, can only be
realised if there are fiscal transfers from rich to poor, and those fiscal transfers can only happen in a real
political union of a kind that you have in the nation state. That dilemma dogs us still, and will continue to
dog us.
As regards democratic legitimacy, I think that there is a difference between “do we have democratically
legitimate institutions?” (to which I think the answer is “yes”), and “do we have acceptability, as it were,
that those institutions really are democratic?”. This is a problem for nation states as well as the
European Union. The fact is that we have a Council of Minister, all of whom are elected politicians
answerable to their national parliaments; we have a European Commission that, although not elected, is
answerable to the European Parliament and can be thrown out by the European Parliament, as the
European Parliament effectively threw out the Commission of Jacques Santer; and we have a European
Parliament which is directly elected and is at least as powerful as the Council of Ministers in
determining European legislation. In this country, there is some kind of conspiracy because, not
surprisingly, national MPs are threatened by the existence of the European Parliament. We have a kind
of conspiracy to make the European Parliament and its elections almost a non-event. When some of
those present here – Sir Vincent Fean, Dame Glynne Evans and I - were working in the Foreign Office, it
was a rule that if a constituent wrote to their British MEP, and the MEP referred the letter to the Foreign
Office, the Foreign Office would be under instruction immediately to pass the letter that had been
addressed to the MEP to the national constituency MP. This was a deliberate attempt to undermine any
attempt by the European Parliament and its members to gain any authority. I do not know if that rule
applies in the Foreign Office today, but it is an illustration of the problem that we have found in Britain
in coming to terms with an alternative form of democratic legitimacy which is not vested in the national
parliament.
I cannot resist as, what my sister would call a recovering Catholic, to try and answer a bit of the Papal
question because I think that the Papal question is not just about religious power. I want to illustrate it
with a very quick anecdote. In 1931, my father, who was brought up as a Methodist, got engaged to my
mother, who was a Roman Catholic. My father came from Derbyshire and, as had all his forebears since
they arrived as foot soldiers with the Norman Conquest. My father’s aunt wrote to him a letter which
said: “Do not forget that in the churchyard in Darley Dale in Derbyshire lie the remains of many
generations of the Wall family: yeoman stock, the very breath and backbone of England, and do not
allow your children to be placed under the yoke of popery”. Now this was 1931, not 1531. If you had
asked my aunt, she would not have had the slighted notion about what she thought about
transubstantiation or the Immaculate Conception. What she was talking about was the encroachment of
foreign power on the English national system. That was her objection. Cardinal Cormac MurphyO’Connor, for whom I used to work, used to say of the European Treaty: “If only they had not called it
the Treaty of Rome.”