Is the EU constitutionally flawed?

It is well-known that Churchill supported the concept of a union of nations on continental Europe.

Less well-known is the fact that F. A. Hayek – the inspiration for many free market economists – was in favour of this kind of supranational governmental arrangement at the European level too. This might come as a surprise to those who view a support for free-markets and support Brexit as going hand-in-hand.

Unfortunately, the EU that we have today has not developed as liberal thinkers would have hoped. As with all governmental systems – including the US – there is a tendency towards centralisation. It is difficult to avoid that drift to centralisation when the supranational power has responsibility for regulating trade and commerce between states.

Once such power is ceded, as it was through the Single Market Act, almost any legislation can be justified at the central level on the grounds that it has some impact on trade and commerce. The regulation of banking, insurance, labour markets and so on are all becoming centralised at the EU level with seriously problematic consequences.

Whether this was the intention of the founding fathers is difficult to know, but it certainly was not the intention of those economic liberals who supported some form of European government.

This growth of regulation at the EU level undermines the freedom of movement of services and capital by making business more difficult; it loads costs onto consumers; and it creates a layer of regulation administered by people who are totally unaccountable to the people.

How can these problems be overcome?

Firstly, the unanimity principle is important in any federal arrangement. If a trans-national entity becomes too big to require unanimous agreement to exercise power at the centre, a very large majority should be required. But, in the EU, the principle of “Qualified Majority Voting” has been diluted over time so that smaller and smaller majorities are needed for the EU to exercise power over the heads of member states.

Secondly, the principle of subsidiarity from Catholic social teaching needs to be heeded. This is written into the EU constitution but in such a way that it is meaningless – and certainly rarely takes precedence in the European Court of Justice. The principle of subsidiarity was defined in Quadragesimo Anno as follows:

Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.

The EU should not just be centralising powers because it believes it can do things better than member states (after all, the central authority will always believe it can do things better). Powers should only be centralised if member states cannot exercise the relevant function.

The EU should restrain its horizons. It should restrain member states from preventing the free movement of capital, labour, services and goods and not be active in a positive way. The EU should not be active in regulating economic activity. It should only do those things that member states cannot do and which member states cede to the EU by unanimity or a huge majority.

This requires a re-writing of the EU constitution – a re-writing that is probably unachievable.

It is said that Catholic social teaching inspired the founding of the EU’s predecessors. Maybe so, but getting constitutions wrong has serious consequences. In this case, the EU has ignored a key plank of Catholic social teaching and the consequences have certainly been serious.

About the author

Philip Booth is Editorial and Programme Director at the Institute of Economic Affairs and Professor of Finance, Public Policy and Ethics at St. Mary’s University, Twickenham.