As heads of state iron out a new European Constitution and examine the case for adopting a Human Rights charter, lawyers tell Chris Baker that, with ten countries poised to join the EU next year, more clarity is desperately needed

The guiding principles that inform the checks and balances between the European institutions are 50 years old and showing their age.

But how should politicians drag them kicking and screaming into the 21st century?

European heads of state met recently to thrash out the details for a new European Constitution.

The aim is to have a treaty in place by the end of the year that is suitable for the soon-to-be 25 member states.

Coverage in the UK press concentrated on whether Prime Minister Tony Blair was wise in announcing there would be no referendum on the constitution, or whether the French wanted to remove the Queen's sovereignty.

For lawyers, the issues are a little more complicated.

The Law Society has been following developments closely.

The final treaty will merge all existing treaties into one, and the Society is interested in the potential of such a move.

'It is an opportunity to review the way the European Union (EU) institutions function, how laws are made and applied, and the case for reform,' a Law Society spokesman says.

'There is a need to simplify EU decision making and make it more comprehensible, so that solicitors can ensure they use European law for the benefit of their clients.'

Michael Smyth, head of public policy at global giant law firm Clifford Chance, points out: 'We cannot have a framework existing for a club of six countries, then nine, then 12 and assume it will work for a club of 25.

But the problem for many people is the democratic deficit that exists in Brussels.

It's for the prime minister to make sure the updating is considered alongside the greater democratisation of the EU structures.'

It can be broken down into four themes, according to the Society: access to justice, better law-making, institutional control and transparency.

Access to justice is a vexed issue between UK lawyers and their counterparts in Brussels.

The Society's spokesman says it has concerns about 'gaps' in the draft convention, 'such as the fact that there is no specific reference to access to justice, other than social justice in the opening articles'.

EU citizens have limited scope for obtaining justice when contesting a European Community (EC) regulation that has an adverse effect on their legal position but which is not explicitly addressed to them as individuals, the spokesman says.

The Society has called on European institutions to take a more holistic approach.

Professor Carl Otto Lenz, senior 'of counsel' at US firm Baker & McKenzie's Brussels office, and a former advocate-general at the European Court of Justice, takes a different view.

'The court can now also accept claims actions from individuals who are directly concerned by an EU regulation but not concerned individually,' he says.

'Until now you had to be concerned directly and individually and this was very difficult.'

The draft convention closes that gap, according to Prof Lenz.

'You can take this together with recent decisions by the European Court of Justice that make member states responsible for judgments of their supreme courts that violate EU law and give damages,' he adds.

Solicitors can now give better advice on European law than ever before, Prof Lenz argues.

'The new treaty offers more possibilities than there were,' he says.

'You can now invoke an administrative regulation - not an act of parliament but an administrative regulation that violates the interests of your clients if you can demonstrate that it affects them directly.'

The convention also proposes to adopt the Charter of Fundamental Human Rights.

The Law Society maintains that the charter offers little, and would prefer the EU to adopt the European Convention on Human Rights instead.

One Brussels-based lawyer, who preferred not to be named, says: 'If a human rights charter is adopted, then the EU would be able to deal much more easily with areas and concerns that don't fit into the present EU system.

That could include the protection of the rights of individual citizens across Europe.'

But a partner at a City firm, who also did not wish to be named, confesses: 'I can't see that happening under the way it's worded at the moment.

More clarity is needed.'

Prof Lenz adds: 'We already have a number of fundamental rights derived from the constitutions of the member states from the European Convention on Human Rights.

But there are a number of social rights that need more clarification and we need something that can help people apply these articles.'

Sarah Biontino, a French-qualified lawyer who deals with EU public affairs for the Brussels office of City firm Allen & Overy, says: 'The UK has signed up to the Council of Europe's Human Rights Convention and uses it as a definition in cases.

I'm all for it and I do not think it's contentious to add a human rights dimension to the new European Constitution.'

On better law-making and institutional control, the Law Society also has several concerns.

It contends the European Commission too often only consults existing European-level bodies that it calls 'the usual suspects' before formulating legislation.

It wants an auditing process to ensure all relevant parties are consulted before laws are drafted.

It is also concerned by 'soft law', such as conclusions and declarations that have no legally binding force but can still have effects, and wants these limited.

Mr Smyth adds that some of the proposals could have far-reaching effects.

Elements on cross-judicial co-operation in civil matters could be too loosely worded and could form a basis for harmonising almost any law in the future, he says.

'There could be a pan-European contract law and that could have big implications on the position of London as a financial centre,' he says.

'Many financial institutions are subject to English law and lawyers would be anxious that the wording could form a basis for change.'

The Society goes on to warn that some form of EU-level procedure for the creation of agencies is needed to stop these unaccountable bodies proliferating.

It also wants the justice and home affairs 'pillar' of EU activity incorporated into the rest of the EU structure to make it more democratically accountable.

These measures would ensure more transparency, it adds.

Whatever form the constitution will take, most agree it will probably be different from the original draft.

The inter-governmental conference held earlier this month has already demonstrated that there is no agreement yet on the current wording.

Ms Biontino says this is an understandable element of the nature of European politics.

'Every single article of the draft European Constitution is the fruit of tough political discussion between 15 countries and the ten which will be joining in May 2004,' she says.

'What some would say is loose wording I would consider to be a series of inevitable compromise solutions.'

However, back in the UK, lawyers still want issues that could affect the progress of law to be clearer.

Mr Smyth says: 'The wording of the constitution needs to be tightened up on some of the provisions that might have the most bearing on judicial co-operation.

These are the most opaque parts of the drafting and it's not clear what the implications will be.

We will need more clarification from officials before the process goes forward.'

Given the fact that the 25 countries will each want to protect their own interests, and the horse-trading for which the EU is renowned, whether such clarity will be forthcoming remains to be seen.

Lawyers across Europe are probably crossing their fingers in the hope that the final constitution does not become any more vague than it is at the moment.

Chris Baker is a freelance journalist

Wise words

One of the highlights of a recent American Bar Association conference in Brussels was the appearance of Valery Giscard d'Estaing, the former French president and the current architect of the Convention on the Future of Europe, reports Jonathan Ames.

In an hour-long, urbane presentation, he provided several witticisms.

- On the rationale behind the convention: 'The existing legal texts of Europe are too complex, too numerous and almost impossible to understand.

The basic texts are contained in a publication that is about 1,600 pages long.

And no one in Europe has read it.'

- On general public interest in the convention: 'The press in Europe has been correct in its analysis of our proposals.

In the US our proposals have been ignored, which is better than being criticised.

And it is to be expected.

What interest should someone in Colorado have in a proposed EU convention?'

- On how to manage the various national interests in relation to the drafting of the convention: 'We put the Scandinavians side by side because they all almost had the same names.'

- On the gender composition of the committee drafting the convention: 'Send more women, I said to the member state governments.'