Is EU moving towards a federal state?

The very fact that the powers of the European Union, which were so long based on treaties will now be based on a constitution, will make a significant difference to the way in which the Union will run. Such a difference is likely to change the shape of the Union, regardless of whether or not the draft constitution will shift more powers to the Union at the expense of the national governments.

The draft constitution will be subject to debate, discussion and amendments by the member states before it is finalised. It needs a careful study as it lays down fundamental rules by which Britain's future link with the EU will be determined. The provisions included in the draft constitution, as interpreted by the Eurosceptics, will mean transformation into a federal state. Such transformation will mean that each state will lose its identity as an independent state and will become a constituent unit of a federal Europe. Although it is too early to predict whether or not the EU will take the shape of a federal state in the future, the proposals included in the draft constitution indicate that it is moving towards that direction. Much will depend on how the politicians of Europe will react to the proposals regarding the transfer of power to Europe before it is hammered into final shape.

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The method of distribution of powers between the centre and the federating units is an important aspect of a federal form of government. The legislative, financial and administrative matters should be distributed in such a way so that both sets of government may feel equal in status. In a federation it is considered essential that the two sets of government, whatever might be the jurisdiction of their respective sphere of action, should be supreme in their respective jurisdiction.

An analysis of the distribution of powers between the federal government and the member states implies an element of subordination of the national governments to the EU. The founders of the draft constitution made provisions for two lists, i.e. exclusive and shared powers. The federal government is allowed to act on the exclusive and the national governments on the shared lists, although the precedence of federal legislation is guaranteed in respect of the shared lists. Such practice is normally followed in federal form of governments, as for example, in

Pakistan, under 1956 constitution, the provinces could make laws on the concurrent lists so long as the federal government did not use its legislative powers. Many of the powers usually exercised by federal government are listed in the shared category. There is not a list of exclusive powers of national governments, although they retain all powers not otherwise listed. The lack of a list of exclusive powers of national governments automatically raises the question whether such a move was made by the founders of the draft constitution in order to give prominence to federal government.

The ambiguity of such provisions will certainly become a source of disputes between the federal and the national governments, even if we disregard the notion that it is likely to undermine the authority of the national governments. The recent trend in the existing federal system is towards the increase of the powers and strength of the central government. The chief forces which contributed towards the increase of the powers and strength of the central governments, whether by fuller exploitation of their existing powers or occasionally by acquisition of their new powers, were war, economic depression, the growth of social services and the mechanical revolution in the transport industry.

War and economic depression are likely to put a financial strain, which only the central government has been able to bear. In the USA, the central government would not be able to operate effectively with the limited powers granted to it by the founders of the constitution unless they were increased and strengthened by the Supreme Court through its role as a guardian of the constitution. It proved extremely difficult because of its rigidity to amend the constitution formally so that new powers could be added to the central government. Fuller exploitation of the existing powers of the central government by the Supreme Court provided a scope to increase its powers. The proposals included in the draft constitution to give more powers to the centre at the formative stage should not be conducive towards the development of a sense of union among the member states. The attempt by centripetal forces to give more powers to the federal government should be thwarted and the centrifugal forces should make a move to include proposals in the constitution for more decentralisation of power. Such proposals of the centrifugal forces, if accepted and approved, will strengthen the foundation of the federal structure of the union.

Another characteristic of the federal government is the existence of a common umpire to determine and interpret the distribution of power. Federation implies a division of power and authorities between two sets of government. It is also inevitable that in a federation there will be disputes over the terms of the division of power. Hence a constitutional arbitrator is required to determine the limitations imposed by the constitution, to check powers which have not been conferred, and to authenticate powers which have been granted. This task of umpiring the federal system is usually performed by a Supreme Count. In the federation of Australia, Canada,

USA, West Germany and India it is the Supreme Court which performs this task. The jurisdiction of the Supreme Court may be limited only to the interpretation of the constitution Act, without the power to adjudicate upon the vires of the legislative provisions. In other words, the responsibility of deciding whether the legislature has the power under the constitution to make law is that of legislature itself and the validity of law cannot be called in question on the ground that the legislature by which it was made had no power to make the law.

This concept of parliamentary supremacy is inconceivable in a federal form of government with a written constitution. If EU is transformed into a federal state in the future controversy may arise over whether the power of the Supreme Court to interpret the constitution should include its authority to adjudicate upon the vires of the legislative provisions. As most of the member states have a parliamentary form of government, the politicians may not be willing to surrender the

supremacy of the parliament in favour of the supremacy of the Supreme Court. The acceptance of judicial review in a parliamentary government in Canada, Australia, India and West Germany, although not compatible with the principles of parliamentary democracy, was a step in the right direction because of the need of an umpire to act as the guardian of the constitution. The acceptance of parliamentary supremacy, on the other hand, could provide great scope for a grave constitutional crisis because of the inability of the Supreme Court to adjudicate upon the vires of the legislative provisions in order to ensure that neither the centre nor the federating units exceeded the jurisdiction of powers guaranteed by the constitution.

The failure of the Supreme Court to settle any dispute between the two sets of government, in the event of them exceeding the constitutional jurisdiction, could give rise to various problems leading to constitutional crisis. The inability of the Supreme Court to act as a guardian of the constitution in a federation is fraught with grave constitutional crisis. The advantages of having a parliamentary supremacy in a parliamentary form of government with a federal character do not certainly outweigh the disadvantages that could result from the failure of the Supreme Court to act as the guardian of the constitution. Only time will tell whether or not the member states will be influenced by these considerations to surrender the parliamentary supremacy to the Supreme Court.

European union, which originally started with six member states with the object of having a common tariff in order to promote economic activities among its members had gone smoothly for nearly half a century, basing itself on a succession of treaties with the extension of its members and giving more powers to Europe. The treaty of Maastrict made fundamental changes to the economic structure of the union when the members agreed to adopt a single currency, although on an optional basis. The problem of adopting a single currency could

become a major obstacle towards forming any union. Although the acceptance of a single currency was optional, 12 member states have already exercised their option to accept the Euro. I am inclined to think that Britain will not stick to the fulfilment of five economic tests when their political desire to enter into a single currency will override their economic interests. Whatever may be the arguments put forward by the Eurosceptics against such entry, it is almost certain that Euro will replace sterling, although the chances are remote that it is likely to happen during the lifetime of this Parliament.

The draft constitution, apart from incorporating almost all the features of the previous treaties, has made significant additions. Such additions include, among other things, granting new power to the European Union over energy, immigration and asylum policies and to coordinate national employment policies. Now the question is whether such shift of power to the European union is likely to transform it into a federal state. Before I answer this question, let me repeat here the statement by Dicey relating to prerequisites of a federation. Federalism requires for its formation two conditions i.e. on one hand there must be a body of countries so closely connected by locality, by history, by race or the like as to be capable of bearing in eyes of their inhabitants an impress of common nationality. On the other hand there must exist a peculiar state of sentiment among the inhabitants of the country which it is proposed to unite. They must desire union and must not desire unity. One may enquire whether the impress of common nationality as referred to by Dicey is sufficiently strong among the member states to uphold the federal experiment or whether the peculiar sentiment as referred to by Dicey is seriously challenged by the nationalists.

The development of a sense of common nationalism among the member states should pave the way towards the formation of a federation. Any bottleneck towards the formation of a union will be overcome when the sense of distinct nationality is overridden by a sense of common nationality. How the EU is likely to shape in the future will depend on what extent the member states will be prepared to surrender their sovereignty to the federal government. Their willingness to transfer the power to control defence and foreign affairs to the EU, while retaining their control on all other aspects including the power to raise taxes, may in the long run lead to the creation of a federation on the same model as the USA. On the other hand their narrow nationalistic instinct to preserve their sovereignty intact may lead to the creation of a new Europe whose sole objective should be limited to promote economic activities as embodied in a patchwork of intersecting treaties and co-operative arrangements, in which each of the member states will be expected to play its respective role in order to achieve their desired common goal.

The failure of the member states to approve the EU constitution in a summit recently held at Brussels clearly indicates that they are not prepared to give up their national interests in order to pave the way towards the formation of a federal Europe in future. Although it is very difficult to predict how they are likely to vote in any future summit, the present indications are that the EU for the time being is likely to remain as an economic union designed to enhance economic co-operation among its member states.

AKM Abedur Rahaman is a retired British civil servant.