Britain must have a referendum on the new EU treaty

Ruth Lea

With Tony Blair, Angela Merkel and now Nicolas Sarkozy determined to push some form of the defunct EU Constitution through, Ruth Lea analyses how European integration marches on. With regard to the EU, she argues that now, more than ever, the British electorate deserve to be heard. And now is the time for a new vision of Europe.

Introduction

In April the Prime Minister announced that there would be no referendum in the UK on the new EU treaty. He claimed that, as the treaty would be an 'amending' treaty mainly dealing with institutional matters rather than a 'constitutional treaty' that alters the relationship between the EU and member states, there was no justification for a referendum. Britain would ratify the new EU treaty through Parliament alone. He is, arguably, mistaken on two counts.

Firstly, his claim that the new draft treaty will be a minimal 'mini-treaty', devoid of constitutional implications, does not seem to be supported by a letter sent from German Chancellor Angela Merkel to the other EU leaders in April. This letter showed that Mrs Merkel was determined to make only 'minimal' changes to the EU Constitution.¹ Moreover French President-elect Nicolas Sarkozy is on the record supporting several controversial proposals from the original Constitution including an EU President, removing further national vetoes and an EU Foreign Minister.²

Secondly, even if the new treaty were to be only a 'mini-treaty', the changes under the treaty would alter the relationship between the EU and member states and are, therefore, strictly constitutional. It is disingenuous and/or dishonest to suggest otherwise. Clearly the changes would not be as extensive as they would have been under the original Constitution (or even under the slim-line version which is apparently being considered by Mrs Merkel), but changes they are. Mr Blair should keep his promise to allow the British people a referendum on whatever new draft treaty is eventually agreed.

An opportunity for the British electorate to voice its opinion on the EU is long overdue. Much has happened since the 1975 referendum – including major constitutional treaties including the Single European Act and the Maastricht, Amsterdam and Nice Treaties. The relationship between the EU and its member states have changed beyond recognition over the last 30 years. European integration has pushed ahead, transferring huge swathes of powers from the member states to the EU's institutions.

Britain must have a referendum on the new EU treaty.

This requirement is all the more necessary and overdue because EU integration has been pushing ahead despite the rejection of the Constitutional Treaty by the French and the Dutch referenda in June 2005. This Perspective considers some of these developments. But before discussing the developments the Constitution's main proposals are summarised.

The 2004 Constitutional Treaty: a short resume

There is little doubt that the EU's Constitutional Treaty, agreed in 2004, was a major step towards the further political and economic integration of the EU.³,⁴ Its extensive list of proposals covered constitutional and institutional changes as well as policy matters.

The constitutional changes included:

• The Constitution would give the EU full legal personality for the first time and EU law would have supremacy over national law. Currently this applies only to the European Community and Community law.
• The three pillared structure of the EU, introduced by the Maastricht Treaty and modified by the Amsterdam Treaty, would be replaced by a unitary structure. The three pillars currently comprise:
• European Community domain (1st pillar).
• Common Foreign & Security Policy (CFSP) (2nd pillar).
• Police & Judicial Cooperation in Criminal Matters (3rd pillar).

The institutional changes included:

• The European Council would be headed by an elected full-time President, so ending the current 6 monthly rotating Presidency.
• A new Foreign Minister would be elected, replacing the High Representative for the CFSP and the post of Commissioner for External Affairs. The current High Representative is Javier Solana, the EU's 'de facto' foreign minister, who also the Secretary-General of the Council. The European External Action Service (diplomatic service) would also be set up.
• Qualified Majority Voting (QMV) in the Council of Ministers ('Council' or 'Council of the EU') would become the general procedure of decision-making.
• Qualified majority voting rules would change. A 'double-majority' system would be introduced for Council of Ministers decisions, defined as requiring at least 55% of members of the Council representing member states comprising at least 65% of the EU population. This system was developed to redress some of the imbalance whereby small states currently have disproportionate influence. See the annex on the voting weights by member state which shows that large states do not have the voting power proportionate to their populations – and vice versa.
• Flexibility to expand beyond the maximum of 27 member states - as effectively limited by the Nice Treaty.⁵ The Nice Treaty did not provide for any enlargement beyond 27, except to say the Commission would no longer have a Commissioner from every member state.

On policy matters there was a major extension of EU competences including energy and inclusion of the Charter of Fundamental Rights.

Developments: EU integration carries on

The Constitutional Treaty was formally rejected in the French and Dutch referenda in 2005. But there is little doubt that the EU has proceeded with much of the integrationist agenda proposed in the Constitution under the current legal framework, albeit imaginatively interpreted.⁶ One of the areas where the EU has been most active in recent months has been in energy, for example, though under existing rules.

It should, however, be emphasised just how imaginatively the current legal framework is being used in some of the EU's decisions – indeed some decisions arguably transgress the border from legality into illegality. A few examples show the EU's determination to push ahead with integration.

Firstly, consider the Charter for Fundamental Rights (Part II of the Constitution) which is being incorporated, by stealth, into EU and, hence, British law. The Commission has stated that all new EU legislation is required explicitly to conform to the Charter. In addition, given the way that UK courts are in practice inclined to defer to European Court of Justice (ECJ) precedents, the Charter could well become part of the governing framework for UK civil law, despite never being approved by Parliament.⁷

Secondly, the High Representative of the CFSP, Javier Solana, in all but name performs the role of the EU's Foreign Minister. In addition, and as part of the developing European External Action Service, 'Ambassador' John Bruton already acts as the Head of the Delegation of the European Commission to the USA. ⁸ He was appointed in December 2004. The setting up of the External Action Service was explicitly under the Constitution and thus illegal.⁹

Thirdly, Article 308 of the Treaty Establishing the European Community (part of Maastricht, amended by Amsterdam and Nice), which refers specifically to the 'common market', is being used to legitimise a wide range of programmes under the EU's first pillar (the European Community) and not just to programmes that are conventionally understood, at least in the UK, to be mainly economic.¹⁰,¹¹

British Foreign Office Minister Lord Triesman in reply to a question from Lord Pearson of Rannoch about the criteria for accepting the use of Article 308 as the legal basis for EU legal instruments, significantly, made no reference to the 'common market' at all:

"In assessing the legal basis of proposals brought forward by the Commission, the Government apply criteria laid down by the Court of Justice in case law dating back to the 1980s and consider each proposal as a whole, in particular its aim and content. Article 308 requires that a proposal be necessary for the attainment of a Community objective and that the Council must act unanimously. The Government have given an undertaking that, where the Commission puts forward a legislative proposal citing Article 308 as its legal base, the Commission's justification of its choice of legal base and the Government's assessment of that choice will be provided by scrutiny committees."¹²

The Fundamental Rights Agency, for the enforcement of Charter of Fundamental Rights, is being set up (partly) under Article 308 and the Civil Protection measures are being developed under Article 308.¹³

Fourthly, there is evidence that the British Government turns a blind eye to possible illegalities when dealing with EU developments because they feel that such illegalities can be used as trade-offs in EU negotiations. This may be a pragmatic stance – but hardly principled. Geoff Hoon, Minister of Europe, made this admission to the cross-party Commons European Scrutiny Committee in a leaked letter dated November 2006.¹⁴

Finally, it is worth adding the point that whatever happens to the treaties, the European Court of Justice plays a major role in extending the integrationist European project. As Martin Howe has recently written:

"If we remain subject to Community law, and to the European Court's interpretation of the Treaties, no agreement or treaty defining or limiting the powers of Europe can be safely relied upon – simply because it will be re-interpreted by the Court, over time, to expand those powers again."¹⁵

The Constitution: outstanding issues

There are, however, fundamental parts of the Constitution that cannot proceed without EU treaty changes. They principally comprise the constitutional and institutional issues discussed in the introduction. They most notably include:

• The EU's legal personality and the absorption of the CFSP into the main decision-making procedures of the EU.
• The full-time President of the European Council and the abolition of the rotating presidency.
• The EU Foreign Minister and a (legal) diplomatic service.
• New voting rules in the Council of Ministers which more properly reflect the size, by population, of the member states.
• The institutional arrangements to accommodate enlargement beyond the current EU27.

These are arguably fundamental issues to the future of the EU which need changes to the treaties (as already stated) to which all the member states must agree to. The facility of 'enhanced cooperation', which was formalised in the Nice Treaty, cannot be used for fundamental constitutional and institutional amendments to the treaties.

By way of explanation, under enhanced cooperation groups of at least 8 member states may make agreements among themselves that enable them to go further in particular policy areas than the other member states were prepared to go, provided such agreements:

• Further the objectives of the EU and reinforce integration.
• Respect the Treaties (and are, crucially, limited by the current treaties) and the single institutional framework of the EU.
• Respect the EU law, as currently agreed.
• Respect existing competences.
• Do not undermine the internal market or economic or social cohesion.
• Respect the competences, rights and obligations of non-participating member states.
• Are in principle open to all member states.
• Are used only as a last resort. And, to date, has not been employed.

Moreover, and again crucially, the Nice Treaty explicitly states that any acts and decisions under enhanced cooperation "shall not form part of the Union acquis".¹⁶

Where next? A new treaty

There is little doubt that there is an appetite in the EU for further treaty changes. Even though the French and Dutch electorates rejected the Constitution, 16 of the member states have fully ratified the Constitution at the latest count – and Germany and Slovakia have almost ratified it. This comprises a majority of the 27 EU member states.

The current debate centres on just what is likely to be salvaged from the Constitution - though it should be noted the name 'Constitution' has been dropped for political reasons. As already discussed in the introduction, the current German Presidency is keen revive much of the Constitution (a 'slim-line constitution' - albeit under a different name) whilst other countries including the Czech Republic, the UK and Poland prefer a less integrationist document ('a mini-treaty').

Germany is expected to set out the basis for new treaty negotiations soon after the second round French Presidential elections (6 May 2007). And in its remaining few weeks, the German presidency will finish a new draft treaty.

At the EU summit in Brussels (21 June 2007), Tony Blair's last, Germany is expected to unveil a 'roadmap' for the new treaty. The roadmap will probably comprise:

• Plans for a 'short and concentrated' intergovernmental conference, during the Portuguese Presidency, possibly to agree a new treaty by the end of 2007.
• Plans for the agreed new treaty to be ratified by spring 2009, ahead of the June 2009 parliamentary elections.

Time for a rethink on the EU?

Given the disparate ambitions of and the insoluble frictions between the EU's member states the next 18 months should be very interesting indeed. There will surely be much disagreement about the new treaty. Surely it is time for a new vision of Europe. A vision where European nations can decide what their relationship with the EU should be. A vision of a 'European Commonwealth'.

The UK should lead the way, acting as the necessary catalyst, and argue for a major negotiation on its relationship with the EU which would be one of trade and mutually beneficial cooperation whilst opting out of political and economic union. Others would surely be attracted by this looser relationship. And those who wanted ever closer union could achieve their ambitions without being dragged back by others.

References

1. David Charter, "Merkel revives a slimline constitution", The Times, 21 April 2007.
2. Open Europe press summary, 1 May 2007.
3. See Global Vision Fact Sheets on the Constitution, www.global-vision.net.
4. British Management Data Foundation, The European Constitution in Perspective: Analysis and Review of "The Treaty Establishing A Constitution for Europe", BMDF, 2004.
5. British Management Data Foundation, The Treaty of Nice in Perspective, BMDF, 2001.
6. Daniel Hannan, "So, you thought the European constitution was dead, did you?", Daily Telegraph, 20 March 2006, estimated that around 85% of the Constitution's text could be implemented under the current legal framework.
7. Norman Blackwell, Sleepwalking into an EU legal system: how the Charter of Fundamental Rights is being incorporated into British law, CPS, March 2006.
8. See the website of the EU's Washington Delegation: www.eurunion.org.
9. Daniel Hannan MEP asked Question E-0429/06 on 20 March 2006 on the legal basis for three EU programmes including the European External Action Service. Commission President Barroso included in his reply: "Provision is made for the setting up of a European External Action Service by Article III-296 (3) of the Treaty establishing a Constitution for Europe." Suffice to say the Constitution is not in force.
10. Article 308 of the TEC states: "If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures." See British Management Data Foundation, The Treaty of Nice in Perspective, BMDF, 2001.
11. The coverage of the phrase "common market" is, however, not unambiguous – varying from European Economic Community, to Single Market, to European Community – or even European Union. See Rodney Leach, Europe: a concise encyclopedia of the European Union from Aachen to Zollverein (4th edition), Profile books, 2004.
12. "Final proof that the Constitution is being adopted by the back door", Eurofacts, 23 March 2007.
13. Sources include papers from the House of Lords EU Study Group.
14. George Jones, "Britain 'turns blind eye to faulty EU laws in return for favours'", Daily Telegraph, 22 January 2007. The Scrutiny Committee had questioned the legal base for a draft regulation about a European Monitoring Centre for Drugs and Drug Addiction.
15. Martin Howe, "Why no Treaty limiting EU powers can ever be relied on", Eurofacts, 6 April 2007.
16. British Management Data Foundation, The Treaty of Nice in Perspective, BMDF, 2001. See the Consolidated Treaty on European Union (TEU), Article 44.

Annex

Current membership numbers of the Council of Ministers (the Council of the EU): votes for QMV

Source: http://www.en.wikipedia.org and author's calculations

Notes on the author: Ruth Lea is currently Director of the Centre for Policy Studies and Director of Global Vision. She is a Governor of the London School of Economics and a non-executive director of Arbuthnot Banking Group plc. She is the author of many papers on economic matters and writes regularly for the press. Ruth was Head of the Policy Unit at the Institute of Directors (IoD) between 1995 and 2003, before which she was the Economics Editor at ITN, Chief Economist at Mitsubishi Bank and Chief UK Economist at Lehman Brothers. She also spent 16 years in the Civil Service in the Treasury, the Department of Trade and Industry and the Central Statistical Office. She has served on the Council of the Royal Economic Society, the National Consumer Council, the Nurses' Pay Review Body, the ONS Statistics Advisory Committee, the ESRC Research Priorities Board and the Retail Prices Advisory Committee.

Global Vision is a new campaign group backed by economists and business leaders that argues for a looser British relationship with the EU, based on trade and mutually beneficial trade and cooperation, whilst opting out of economic and political union. Global Vision believes that this is the right relationship for Britain in the 21st century's rapidly changing world.