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.