Tuesday, October 23, 2007

EU referendum? Don’t ask me...

The new reform treaty is not the old constitution. Not quite. We hear a lot of waffle about how the ‘constitutional concept’ has been abandoned, but that’s a technical and symbolic difference only. It concerns simply whether all new and pre-existing provisions are bundled into one single ‘constitution’ or whether the old treaties are left as they are with the new provisions presented as amendments. It also involves dropping mention of symbols such as the EU flag and anthem – a piffling change.

On top of this, there are also some more substantive changes to the new provisions proposed in the treaty versus the constitution (including a British ‘red line’ or two), but the overall effect – let’s not play the percentage game – is much the same.

So: the Government promised a referendum on the constitution at the last election; does that promise still apply, given the changes? Technically not, as the new treaty isn’t the same – but given the large similarity, can we summon up the spirit, rather than the mere letter, of the manifesto pledge?

This involves looking at exactly why Tony Blair promised a referendum. Here things start to get strange. In his 2004 announcement of this policy, he said that there had been a long history of myth-making “designed to distance people's understanding of what Europe is truly about and loosen this country's belief in its place in Europe”. He went on:

It has been an unrelenting, but, I have to accept, at least partly successful campaign to persuade Britain that Europe is a conspiracy aimed at us, rather than a partnership designed for us and others to pursue our national interest properly in a modern, interdependent world.
It is right to confront this campaign head on. … Once [the treaty is] agreed… Parliament should debate it in detail and decide upon it. Then, let the people have the final say.

The curious thing about this rationale is that it wasn’t actually related to the contents of the constitution. Blair seemed partly to acknowledge this:

The question will be on the treaty, but the implications go far wider – as I believe we all know. It is time to resolve once and for all whether this country, Britain, wants to be at the centre and heart of European decision making or not; time to decide whether our destiny lies as a leading partner and ally of Europe or on its margins.

This presents a puzzle: if the aims were (a) to debunk euro-myths in open debate and (b) to resolve Britain’s relationship with Europe, then this particular proposal was beside the point. Indeed, such a referendum would have been a deeply flawed means of achieving these ends, as it would have formally focused on a specific set of new proposals rather than the bigger picture.

Aim (a) could be pursued by any programme of public relations; aim (b) might be best addressed by the Lib Dem suggestion of a referendum on EU membership generally (although such a move might well end up inconclusive, with a small ‘yes’ majority on a low turnout).

So, if the old policy was a bad means of achieving its declared aims, and an equivalent new policy would be an equally bad means, is the Government now obliged to hold a reform treaty referendum in order to pursue those aims with as much doomed incompetence as it made a manifesto commitment to do? The mind boggles.

This is largely beside the point, though. Whatever reasons Blair had, the promise was made. And while the treaty is different from the constitution, and the Government may avoid the letter of this promise by slightly more than a technicality, I think it’s near-impossible to argue that the spirit of that pledge can’t transfer over to this new treaty.

Governments are bound by their manifesto commitments. They’re not necessarily bound, though, to implement them robotically.

In a representative democracy, a general election is about choosing people to govern rather than being a composite referendum approving all items in a manifesto. A government must respond to changing events, is entitled to think again, and is obliged to make what it judges to be the best decision at any given time.

But election promises do matter. Those elected to govern are bound either to fulfil their commitments or to give good reasons for abandoning them, in the knowledge that they will later be electorally judged on this. (There’s also the option of calling a snap election to seek a different mandate.)

In this case, no good reasons for the change of policy have been given. And, without a revolution in political candour, none such can be given.

The Government is having a hard time explaining why the new treaty is different from the old constitution in such a way as to obviate a referendum because the original official reason for having a vote bore little relation to what was in the constitution. The real reasons both for promising one then and for avoiding one now are largely political expediency. (Similarly, the Tory position, then and now, has been far less edifying and principled than they like to claim.)

Cassilis, whose post this is partly a response to, interestingly takes a position on the treaty very similar to that of Blair three years ago. He wants a referendum, mainly because it would be a way of cutting through the myths and setting straight where we want to stand vis-à-vis the EU:

Most people, if they’re honest, simply don’t know enough about Europe and the way it’s governed. If they discard everything they’ve ‘learned’ from their favoured politicians or their paper of choice… they would most likely draw a blank… Whatever fears either side has about opening up this debate (and there are many valid ones, particularly on the ‘pro’ side) it’s been in effective hibernation for the last 50 years and until we remedy that our continued participation in the EU is based on a fiction. …the whole issue of the part we play in Europe’s future needs to be thrust to the fore and resolved for good or for ill.

There are some very sound points in there (do read the whole thing), and the overall aim – of bringing legitimacy via clarity and openness – is laudable.

But I have to disagree that a referendum on this treaty would be, as he says, “by far the best way” to do this. My earlier response to Blair’s position applies here: this would be asking the voters a specific (and highly complex) question in the hope of answering a much bigger and more general question.

Europe attracts a concoction of misrepresentation, emotion and dogmatism perhaps unique among British political issues. Cassilis takes this as meaning that it’s all the more important for us to take a chance to think it through carefully and arrive at some sort of resolution. That’s right, as far as it goes. But we also have to judge the chances of such an attempt failing or even backfiring. Imagine an all-too-plausible scenario: a nasty campaign, rife with scaremongering and accusations of lying; a low turnout; a close result. This would be more likely to poison the air than to clear it.

There’s a much broader question to ask, though. When, in a representative democracy, should there be a referendum? Given that our normal method of accountability is that the public elect MPs to produce policy outcomes, I’d suggest that a referendum would be justified when a proposal would significantly weaken the link between people and policy by removing significant power from that representative body.

Exceptions might be made when a government had won election on such a proposal; and of course the scope of ‘significant’ will often be subjective. Judgement on that will have to fall to Parliament itself.

Personally, I haven’t seen anything in this treaty to frighten me. The new appointment procedure and term length for the Council President are reasonable, as is the merging of the two foreign affairs commission posts into one (who will act when directed to unanimously by heads of member governments). The UK’s exemptions from justice/home affairs legislation and legal implications of the charter of fundamental rights are certainly suboptimal in their operation, but our ability to put our foot down is there. The new areas of qualified majority voting are largely technical and/or amenable to opt-outs – and in any case, for every veto we ‘lose’, we also lose 26 other vetoes potentially blocking our way.

In terms of the transfer of powers away from Westminster, this treaty doesn’t seem broader in scope from, say, Maastricht or the Single European Act. Furthermore, as Bill Jones notes, we do always have the right to leave. Opponents talk about the ‘surrender’ or ‘loss’ of sovereignty; supporters often speak of ‘pooling’ or the ‘shared exercise’ of sovereignty. My own take is that we’ve invested some sovereignty in the EU, which involves forgoing some legal freedoms in return for the enhanced power that comes from being part of this group. If, one day, we decide we’re not getting a good return on our investment, then we’re free to cash in and walk away. As such, ultimate sovereign power remains at Westminster.

I don’t see that the case for this treaty’s necessitating a referendum is very strong (although it’s not negligible).

There’s a related issue here, as well, which is that of when a referendum is effectively workable (as opposed to in principle desirable). The answer is to do with simplicity. A referendum requires a referendum campaign, and it requires ordinary members of the public to be able to form a reasonably clear opinion of what it is that they’re voting on. If this is not so, then votes will be cast on all sorts of grounds: the overall popularity of the government; previous or possible future policies in this general policy areas; one or two prominent but perhaps minor provisions in the matter at hand.

I think this treaty’s likelihood of being reasonably well understood by the public during a campaign would compare badly with other policies where referendums have been held or suggested. The multitude of policy areas its provisions touch on make it less readily comprehensible. (I can personally attest - as a fairly alert political anorak - that it is hard to get one’s head round the detail.)

Referendums work best when they are on single measures that can be, at least in rough outline, easily grasped. Naturally, issues such as devolution or electoral reform or even euro membership have all sorts of complex practical details and implications; but such matters are, at heart, about one single big idea. This treaty (and its predecessors) is quite a different beast: indeed, it’s a vast menagerie of policy measures, of varying size, in a myriad of areas. It would be tremendously hard to untangle in the public eye all these measures from others previously agreed and not up for debate, and also from hypothetical measures that may have been mooted but not actually included.

So, if I were an MP not bound by a manifesto commitment then I’d not support a referendum. However, had I been elected on such a promise, I expect I’d feel reluctantly obliged to apply it to this treaty. If I were prime minister, I might seriously consider calling a new election to refresh my mandate on this. But then again, I wouldn’t have promised one in the first place.

What a pretty pickle our political class has contrived to get us into.

11 comments:

Cassilis said...

Thanks Tom.

You did make me rethink my 'by far the best way' remark in reference to how we legitimise our future engagement with Europe. I do take the point about how dangerous and flawed a process that would be but I guess I meant 'best' in the Churchillian sense - i.e. the worst option apart from all the others.

Speaking as someone on the right who's actually quite supportive of much of what we've achieved as part of the EU I guess I have a very specific fear. The poison and misinformation that the left rightly fear would dominate a referendum campaign dominates our national discussion on Europe anyway and deepens everyday. If governments (of whatever colour) continue to engage the electorate only when it's in their short-term partisan interests and continue the EU project by stealth at all other times then this notion of a public being screwed by a political elite will start to take hold.

At the moment it's the preserve of a vocal (and I'd suggest slightly nutty) minority but my fear is we're building up a problem that more extreme and unpleasant parties can exploit - I can already envisage the UKIP / BNP election leaflets pointing out that whether it's Labour or Tory you're never consulted, sold down the river etc.

Paul Linford today offers some interesting counterfactuals - I think there was one when Blair, Ken Clarke, Heseltine took to the stage 6/7 years ago as part of the pro-Euro campaign which seemed to die a death the minute they left the building that night - a cross-party pro-EU block with real teeth is desperately needed just so we get some intelligent balance to this whole question.

Andre said...

Well the UK is quite a strong country in Europe and quite an influential country so up to a certain extent it has the ability to negotiate better terms... but smaller countries might not be so lucky. I wonder (to quote Mrs. T) whether through the new treaty we're being lead "through the back door of a federal Europe". Apart from that there are several elements within the commission which should make us worry quite a bit.

I agree that the UK so far has invested some sovereignty in Europe . Before Malta chose to adopt the Euro, it too had invested some sovereignty - after all the definition of sovereignty have changed in the last half a century or so - and in some cases we can only benefit. But again the question is; how much more do we have to put in Europe before we'll start obtaining diminishing returns?

A referendum should never be used as a political tool - and the result could have some unintended consequences.

Tom Freeman said...

I’d really love to see the pro-EU politicians (ie the majority) being more enthusiastic. So much of their side of the debate – in this government and Major’s before it – is couched in terms of how they’ve managed to protect Britain from the nasty centralisers. It’s so tediously defensive.

And I agree, Cassilis, that there’s no really ‘good’ option for a national attitude-clarifying exercise. I think, though, my preference for least worst option would probably be the Lib Dem general membership referendum idea. The set-up, after all, has cumulatively changed a good amount since 1975. But that option’s fraught with risks. I guess I’m worried that we’ve grown almost culturally incapable of having a sensible, open, honest national debate about Europe.

Have you read Hugo Young’s ‘This Blessed Plot’? Obviously he was an enthusiast par excellence, but even if one isn’t, it’s still a fascinating well-written history of Britain’s postwar relationship with Europe up to 1999. The same themes recur with depressing regularity over the decades.

On the subject of counterfactuals, imagine if we’d been in the EEC from the start, rather than sneering, dithering, and then getting rebuffed by de Gaulle. I think our collective attitude (and the CAP!) would be in better shape if we’d done so.

Andre, you raise an interesting issue: whether the EU’s better for its larger members or its smaller ones. Obviously big countries have more clout, but that’s true in any international system. I think I’m right in saying that smaller countries tend to trade more with their neighbours as a % of GDP, so being part of a free trade area would be a bigger plus. Also, even if you have little voting strength, a seat in the Council of Ministers does at least oblige everyone else to hear you out regularly!

But I know countries of all sizes are equally liable to fierce national pride! It’s just that the small ones don’t have delusions of ‘world power’ status…

Andre said...

Obviously big countries have more clout, but that’s true in any international system

Yes but say in the UN if I remember correctly we were once on the security council... and we did propose some international law as a country... so we were treated more fairly there.

Hmmm.. the UN... that's an organisation which would benefit from a new reform treaty :)

In the EU we have no say on monetary issues. Say Malta is going through a recession, and Germany is going through an economic boom - how will the ECB reconcile an interest rate suitable for both countries? Or rather who will they favour?

so being part of a free trade area would be a bigger plus

Yeah - that's one of the good things about the EU. But that could be done through trade agreements - and the EU is quite protectionist. Whilst most of our exports go to the UK/EU we have a large number of exports going to Arab countries - which i think now are subject to some form of duty.

It’s just that the small ones don’t have delusions of ‘world power’ status…

lol good heavens no :p That's all we need!

PES - manifesto2009.pes.org said...

Tom,

Sorry to spam your comment box like this but I couldn't find your e-mail address.

I am from the Party of European Socialists and the moderator of our newest project: www.manifesto2009.pes.org. It is an open consultation where bloggers and activists from all over Europe are invited to give input for our manifesto for the 2009 European elections. If you're interested in taking part, please don't hesitate to contact me for more details.

Maybe you would like to watch our YouTube presentation video: http://www.youtube.com/watch?v=lnNm1EdBbIQ

Hope to hear from you and have a nice weekend

Best
Rikke

rikke.skovgaard (a) pes (dot) org

Tony Maher said...

Tom,

There is a single big idea at stake in this treaty.

Via Aticle 9 this treaty transforms the Council of ministers from being an independent intergovernmental body which regulates subordinate EU institutions into an EU governmental body with overriding loyalties to EU institutions and policies.

The situation where the Council represents the govering hand of the member states over EU institutions and policy is thus legally changed into one where the council represents EU institutions in the joint project of governing the member states.

This also finally severs the remaining connection between the executive authority exercised at EU level and the democratic accountability provided at the National level. Currently democratic accountability flows from the states to the executive at the centre. Now the executive is an incorporated institution of the centre which derives its authority not from an inferred democratic national mandate but from EU treaty law and is exclusively framed within an EU institutional structure. There is a mandatory injunction to support other EU instititions and policies.

This may seem to be an arcane legalism which will not affect the de facto situation of national supremacy within the system. But a change in legal status crucially provides an entry point for the ECJ to overrule Ministers on the grounds that they have failed to demonstrate the required institutional solidarity.

This abolition of an independent Council of ministers is echoed in the integration of the ECB into the EU institutions. Jean Claude Trichet has loudly complained that Article 9 abolishes the independence of the Bank. What is true for the bank is certainly true for the council.

The supervision of EU institutions by an independent Council is now to be changed with the incorporation of the council as just another EU institution itself subject to the rulings of the ECJ. Its primary objectives are now redefined as being the promotion and support of EU policies and its fellow EU institutions. It is no longer tasked with supervision but with support.

If, for example, an electricity supplier in the UK could effect an exercise in “vertical integration” that would permit it to absorb the regulatory body Ofgen into its own management structure with a remit to support other departments within the company and make it primarily answerable to the company’s shareholders then clearly Ofgen would no longer be what it was before – namely an independent supervisory body answerable to the public.

This is precisely what has happened to the European Council.

It is a sad comment on the state of our debate that what would be universally condemned as an unprincipled power grab by an electricity company is seen as a perfectly acceptable “reform” of our national government. How has it come to pass that our standards for the governance of our electricity industry are higher than our standards for the governance of our country?

So – the current “reform” treaty transforms the ministers in Council from being the agents of the Nation states tasked with governing the EU institutions into agents of the EU institutions tasked with governing the nation states.

Giscard D'Estaing has always claimed Article 9 to be the crown jewel of the Constitution. It is the critial shift in legal status away from intergovernmentalism to federalism.

This is therefore a big issue which hangs on one central idea and it therefore satisfies your criterion for a referendum.

Tom Freeman said...

Hi Tony

Thanks for writing – I must confess article 9 had passed me by. Open Europe, on whom I’ve been relying for most of my ‘anti’ reading seem to have missed this concern in their report, despite their obvious interest in corralling every argument they can find. And they had previously noted the Christopher Booker article that raised the issue.

Obviously this is something of a leap, but that does suggest that they may have considered and then rejected this argument. Although, of course, even if so, that doesn’t prove anything about the quality of the argument – yet I find it a political curiosity. But let’s get to the substance.

You say that the Council will now have “overriding loyalties to EU institutions and policies” and that its “primary objectives are now redefined as being the promotion and support of EU policies and its fellow EU institutions”. Yet a rather more qualified position seems to come through in the text itself.

Article 9(1) says: "The Union shall have an institutional framework [including the Council] which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions."

Here the interests of citizens and of member states are equally listed alongside those of the EU. No one loyalty is specified as being dominant.

On your blog, you argue that:

"the Council first received legal notice under EU treaty law at the time of Nice ( in ’01) where under article 4 it’s mandate was defined as providing
".. the Union with the necessary impetus for its development" and to "define the general political guidelines thereof".
The European Council has always governed the EU institutions and has thereby provided the EU with its “democratic cover”. In the both the failed constitution and the current “reform” treaty this relationship is reversed."


And yet, in the new treaty, article 9b(1) states: "The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof."

I don’t know if it’s your intention to build a case on the difference between “general political guidelines” and “general political directions and priorities” – but that would seem a pretty thin difference. The member states, via the Council, look set to remain ultimately in the driving seat.

This is quite contrary to your suggestion that the treaty “transforms the ministers in Council from being the agents of the Nation states tasked with governing the EU institutions into agents of the EU institutions tasked with governing the nation states”.

And article 5 appears to support this:

"1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States."


Another thing that strikes me is from the provisions on the Commissioners. Article 9d(3) says that “the members of the Commission shall neither seek nor take instructions from any government or other institution, body, office or entity”.

Yet no equivalent constraint is placed on the ministers who sit the Council – implying that they may indeed still take their instructions from national governments.

Tony Maher said...

Tom

TF: "Thanks for writing – I must confess article 9 had passed me by. Open Europe, on whom I’ve been relying for most of my ‘anti’ reading seem to have missed this concern in their report, despite their obvious interest in corralling every argument they can find. And they had previously noted the Christopher Booker article that raised the issue."

May I recommend EUreferendum as a consistently rigorous “anti” blog.

TF: "You say that the Council will now have “overriding loyalties to EU institutions and policies” and that its “primary objectives are now redefined as being the promotion and support of EU policies and its fellow EU institutions”. Yet a rather more qualified position seems to come through in the text itself."

Article 9(1) says: "The Union shall have an institutional framework [including the Council] which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions."

TF: "Here the interests of citizens and of member states are equally listed alongside those of the EU. No one loyalty is specified as being dominant."

That is true but the crucial issue is that these potentially competing interests are now subject to the adjudication of the ECJ. The European Council is no longer an independent intergovernmental body it is now an EU institution and subordinate to the ECJ’s ruling on what Article 9 means.

I don’t argue that the powers of the EC have changed, I agree that it remains in the drivers seat. However its independence has been ended and its legal duty is now to support EU institutions and policies and that the decision as to whether it has done so no longer rests with it but with the court.

TF: "This is quite contrary to your suggestion that the treaty “transforms the ministers in Council from being the agents of the Nation states tasked with governing the EU institutions into agents of the EU institutions tasked with governing the nation states”.

In the reform treaty the Council can now only act within “the limits of the powers conferred on it in the treaties”. The terms of its incorporation specifically subordinate it to treaty law i.e. its actions are now subject to veto by the European Court of Justice. Its objectives are now to “advance the objectives of the EU” and to “ensure the consistency, effectiveness and continuity of its policies and actions”. It is further obligated to practise “mutual sincere cooperation’ with the other institutions.

The arbiter of all this is the European Court of Justice. EU law is supreme and the interpretation of the ECJ is final.

The principles of subsidiarity, proportionality and conferral are not new and they notionally applied when the Court bypassed the UK’s specifically agreed exemption to the working time directive via health and safety regulations . Sceptics have long noted that whilst integrationist phrases in treaties are pushed by the Court beyond the “ordinary meaning” of the words therein the same enthusiasm does not apply to phrases incorporating the principles of subsidiarity or proportionality.

TF: "Another thing that strikes me is from the provisions on the Commissioners. Article 9d(3) says that “the members of the Commission shall neither seek nor take instructions from any government or other institution, body, office or entity”.

TF: "Yet no equivalent constraint is placed on the ministers who sit the Council – implying that they may indeed still take their instructions from national governments."

They may take instruction from national governments but these instructions must conform to the overriding mandate of Article 9 as determined by the Court.

Tom Freeman said...

Tony,
From what you’re saying it would seem that the ECJ would have the power to strike down Council decisions. Clearly that’s a constraint on the Council as a collective actor – but can, though, the ECJ positively force the Council to adopt certain stances? I’ve not read the whole thing but that’d surprise me – not really how courts operate.

In which case what this boils down to is that collective EU action in certain cases may be a bit less likely. A greater tendency towards deadlock than towards centralisation.

Tony Maher said...

Tom,

You are assuming that all EC decisions will necessarily be “integrationist” (not an unreasonable assumption unfortunately).

Setting probability aside let’s just consider the remote possibility that a decentralising consensus emerges on the Council (i.e. treat the Britain at the “heart of Europe” fantasy as if it were fact. The EC directs the Commission to frame a sequence of legislative repeals of existing EU directives and “competencies”. Or they use the Passerelle clause to amend treaty law by giving real scrutiny and revision powers to member Parliaments.

The Commission treats this as an unacceptable and deeply unnatural proposal and protests to the Court that the EC is undermining EU principles, policies and institutions and is therefore in breach of its legal obligations of support as set out in Article 9.

The Court may then overrule an agreed EC policy initiative because it isn’t “Communitaire” enough.

There is after all now a legal duty on the EC to be “Communitaire”.

Back in the real world the most likely demonstration of the EC’s loss of independence will be by inference when the EC and Commission collude to end the policy independence of the ECB (also no longer independent but now integrated under Article 9 and charged with the same duties of co-operation and support).

Article 9 critically changes the context in which the EU motor is engineered – it is no longer an independent regulatory body deriving its authority and accountability purely from its collective popular state mandates – it is now a central institution whose duties and powers are mandated by treaty law and not national democratic mandate. It now has a duty to co-operate with the EU institutions that it used to regulate.

Tom Freeman said...

Actually, what I was assuming was that you feared the ECJ would tend to strike things down that it deemed insufficiently integrationist.