UK Liberty

On the EU Reform / Lisbon Treaty and a referendum

Posted in law and order, politicians on liberty, state-citizen relationship by ukliberty on February 6, 2008

A broken promise?

Should we have a referendum, or not?

Now, I’m not wholly supportive of referendums in a representative democracy – we delegate power to our MPs to make particular decisions. But there is precedent: in 1975 a referendum was held for a decision of large constitutional impact, and in 1997 Labour and the Conservatives agreed there would be a referendum if the Government of the day were to propose we join the single currency. And it’s not unheard of around the world for decisions of constitutional impact to be put to the people in the form of a referendum.

In addition, I think that if a party pledges in its manifesto and in other media that we would have a referendum on a particular treaty, they are obliged to give us one should it form the next Government.

The EU now has 25 members and will continue to expand. The new Constitutional Treaty ensures the new Europe can work effectively, and that Britain keeps control of key national interests like foreign policy, taxation, social security and defence. The Treaty sets out what the EU can do and what it cannot. It strengthens the voice of national parliaments and governments in EU affairs. It is a good treaty for Britain and for the new Europe. We will put it to the British people in a referendum and campaign whole-heartedly for a ‘Yes’ vote to keep Britain a leading nation in Europe.

– Labour’s 2005 manifesto

We will put it to the people – that is a promise, a manifesto commitment.

There are two approaches to this argument.

Is it the same treaty?

One approach is that you could deny it’s the same treaty. This is the Government’s approach. Of course, technically you would be right, some of the words have been changed – the title, for example.

But what about the content and its meaning? Has that substantially changed? No, says Parliament’s European Scrutiny Committee:

As far as the substance of the Reform Treaty and its comparison with the Constitutional Treaty are concerned, we accept that references to the “constitutional concept” or “constitutional characteristics” in trying to distance the present proposals from the creation of a Constitution are less than helpful.

What matters is whether the new Treaty produces an effect which is substantially equivalent to the Constitutional Treaty. We consider that, for those countries which have not requested derogations or opt outs from the full range of agreements in the Treaty, it does.

The Foreign Affairs Committee, too:

We conclude that there is no material difference between the provisions on foreign affairs in the Constitutional Treaty which the Government made subject to approval in a referendum and those in the Lisbon Treaty on which a referendum is being denied.

Also the House of Commons Library:

The content of the Treaty, though not its structure, is similar in a great many respects to the EU Constitution.

And European leaders have also claimed that it is for all intents and purposes the same document:

  • “The substance of the Constitution is preserved. That is a fact.” – Angela Merkel, German Chancellor
  • “A great part of the content of the European Constitution is captured in the new treaties.” – Jose Zapatero, Spanish Prime Minister
  • “The good thing is…that all the symbolic elements are gone, and that which really matters the core – is left.” – Anders Fogh Rasmussen, Danish Prime Minister
  • “They haven’t changed the substance – 90 per cent of it is still there.” – Bertie Ahern, Irish Taoiseach
  • “Only cosmetic changes have been made and the basic document remains the same.” – Vaclav Klaus, Czech President
  • “There’s nothing from the original institutional package that has been changed.” – Astrid Thors, Finnish Europe Minister”
  • “The aim of the Constitutional Treaty was to be more readable; the aim of this treaty is to be unreadable … The Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success”. – Karel de Gucht, Belgium Foreign Minister
  • “It’s essentially the same proposal as the old Constitution.” – Margot Wallstrom, European Commissioner

Also take note of the words of Valéry Giscard d’Estaing, former President of France and one of the architects of the Constitutional Treaty:

The difference between the original Constitution and the present Lisbon Treaty is one of approach, rather than content. … It was the legal experts for the European Council who were charged with drafting the new text. They have not made any new suggestions. They have taken the original draft constitution, blown it apart into separate elements, and have then attached them, one by one, to existing treaties. The Treaty of Lisbon is thus a catalogue of amendments. … In terms of content, the proposed institutional reforms – the only ones which mattered to the drafting Convention – are all to be found in the Treaty of Lisbon. They have merely been ordered differently and split up between previous treaties. There are, however, some differences. Firstly, the noun “constitution” and the adjective “constitutional” have been banished from the text, as though they describe something inadmissible. … the proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referenda by avoiding any form of constitutional vocabulary. … The Brussels institutions have also cleverly reclaimed the process from the – to them – unwelcome intrusion ofparliamentarians and politicians in the work of the original drafting Convention. The institutions have re-imposed their language and their procedures – taking us even further away from ordinary citizens. … the complexity of the new text, and the apparent surrender of all sweeping ambitions, should be enough to smooth over all difficulties.

There is a side-by-side comparison here (1.09Mb).

Is there an obligation to fulfil manifesto commitments?

The second approach is that you could deny there is an obligation to follow through on manifesto commitments. I think this approach would backfire on the Government, and they would rather avoid it.

You may have heard of the Salisbury Convention. This says “that the House of Lords should not reject at second or third reading Government Bills brought from the House of Commons for which the Government has a mandate from the nation”, and that there should be no wrecking amendments to manifesto bills.

Governments are understandably quite keen on it, because it helps them pass legislation that the Lords aren’t keen on without using Parliament Acts.

Let’s not argue about whether or not voters read manifestos (I’m sure the majority don’t), or about on what basis the Government can claim to have any sort of mandate when there is such low turnout (as some Lords have argued) – the fact is that Governments claim a mandate based on their manifestos, irrespective of such other considerations, and this particular promise was after all made several times in interviews and speeches. The Government understandably does not want to erode the Convention – indeed they want to extend it.

Why then should this not work the other way around, particularly when the issue is of such importance? In other words, we were promised a referendum on this issue of constitutional importance, so we should get one.

The Government says it isn’t the same treaty that they talked about in their manifesto. Ok, let’s go with that for the sake of argument – I mean, we have all these other authorities saying it is essentially the same, but let’s say it isn’t.

No-one disputes that it is a treaty. Is it a constitutional treaty (note the adjective ‘constitutional’, not the noun ‘Constitutional’) – that is, does it affect our constitution, the basic principles by which we are governed, and that of the EU? I don’t think anyone could reasonably claim that it doesn’t. In that sense, does the Government not have a moral obligation to follow through on its promise?

What’s the real reason for not giving us a referendum?

Polling Report has some links to proper polls on the Treaties and the referendum.

They suggest consistent support for being a member of the EU (refuting the argument that we shouldn’t have a referendum because we are all xenophobic little Englanders), but support for referendum on the issue of the Treaty, and consistent opposition to the Treaty.

The latter is the reason why we won’t get a referendum, not because it is a different document, or because we live in a representative democracy, but because the Government won’t like the answer.

No wonder there are issues of trust and the widespread belief that politicians lack principles. No wonder people are disengaged from formal politics if Governments feel there is no moral obligation to follow through with manifesto commitments, and that people feel they have no say over important decisions.

To be fair, there is nothing to stop the other parties introducing a Bill in Parliament that will oblige the Government to give us a referendum (of course, whether Parliament will pass the Bill is another matter). But it is a great pity we can’t hold the Government to account until the next General Election. It seems a wholly inadequate remedy for such a breach of trust.

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2 Responses

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  1. Ralf Grahn said, on February 8, 2008 at 7:16 am

    Thank you for a reasoned piece of opinion writing.

    The evidence you quote suggests that the Lisbon Treaty has the same material effects as the Constitutional Treaty for the countries without derogations.

    That leaves room for the interpretation that Britain, with derogations and opt-outs, is in a different position.

    I admit that I am a bit saddened by the insularity of the discussion in most countries, but even more in Britain, when concern for the EU as a whole is practically inexistent.

    Is there really no sense of common responsibility towards our common future?

  2. ukliberty said, on February 8, 2008 at 1:53 pm

    Thanks Ralf. Certainly there seems room for interpretation as you say, and again technically the Government would be right if it approached the argument from this angle (I recall a couple of MPs have), but again I think it breaks the spirit of that manifesto commitment.

    Do the derogations and opt-outs and -ins, and ‘red lines’, have a material effect, and to what extent? Now I am wading out of my depth. However, the European Scrutiny Committee (and indeed other MPs) seem to think that some of the derogations and so on will not operate in the way that the Government claims. And as someone who has studied a few Committee reports (not just the ESC, but also Home Affairs, Joint Committee Human Rights and so on), I think it is reasonable to claim the Government has been wrong more than once! Indeed, sometimes deliberately, it seems to me.

    The real issue for me is the whole approach to the creation of this Treaty and its ratification by the UK. I don’t think the Treaty was created and presented in an open and honest way, nor has our ratification process been open and honest, and the public naturally now distrust the Treaty and its supporters. Your article on On publishing the Lisbon Treaty eloquently sets out the problems.

    I have not seen evidence of an absence of a sense of common responsibility but rather an inevitable distrust of the Treaty resulting from the failures of our politicians. If there is no sense of common responsibility I think it is their fault, not the public’s.


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