Should there be a referendum on Europe and, if so, on what question?

A polling station

The House of Commons will be debating this week the call for a referendum on the Lisbon treaty. There are two questions at stake, even if the Speaker in his wisdom will only allow one of them to be put to the vote.

The first is whether or not to hold a referendum on Europe at all: the second is, if so, what the question should be. The Speaker has already ruled on the answer to the second question – the Lisbon treaty and not EU membership – so only the first one is to be decided on Wednesday. This is a pity, because the second question is actually more significant.

On the first point, the British constitutional doctrine is that European treaties are ratified in parliament and not by referendum. Neither the Single European Act nor any of its successors was put to a referendum, under either Conservative or Labour government.

Now, one might argue that the British constitutional doctrine that was changed by the announcement by Tony Blair in April 2004 of a referendum on the constitutional treaty. Many other constitutional changes introduced by Labour since 1997, such as devolution to Scotland, Wales and the north east of England, and the creation of elected mayors, have been put to referendums, so in that tradition a referendum on a European treaty might fit in. But other recent constitutional changes, such as the changes to the House of Lords, have been decided by parliament alone, so we have not definitively moved to the Irish position where all constitutional changes have to be approved by referendums.

The position is complicated by the evident fact that the decision to hold a referendum on the constitutional treaty was not taken on constitutional grounds anyway. It enabled Labour to remove one of the possible negative factors it faced in the European elections of June 2004: the decision was a political one, not a constitutional one. Jack Straw, who was foreign secretary at the time, has said since that the reason was “because of the extent of the clamour”.

The Conservatives argue that the obligation to hold a referendum is political: the 2005 general election manifestos of the three main parties contained commitments to a referendum on the constitutional treaty and the Lisbon treaty is sufficiently close in content to the constitutional treaty for those manifesto commitments still to apply. Labour and the Liberal Democrats dispute this, arguing that the differences between the two treaties are more important than the similarities. This is a political question, which by its nature is never going to have a definitive answer.

But, even though there are some interesting things to say about referendums in general, the second question – about the Lisbon treaty in particular – is more important.

There are two options on the table, a referendum on the Lisbon treaty alone and a referendum on EU membership as a whole, but the two are not so different, for reasons I shall explain.

First, let us imagine that the referendum on the Lisbon treaty rejects it – this is the only case where the subsequent outcome is unclear. What happens next? A treaty can only come into force if it is approved by all member states, which implies that the Lisbon treaty would be stopped in its tracks. However, after each previous referendum rejection, further negotiations have followed to fix whatever problem the No voters had identified. (The Lisbon treaty is intended to be the fix to the problems the French and Dutch saw in the constitutional treaty.) This time, new discussions would be opened to deal with the problems the British saw in the treaty. How could the difficulty be overcome?

This is where we have to look at what the grounds for opposition to the Lisbon treaty actually are. What we find when we look at what the opponents to the treaty have said is that their opposition goes far beyond the wording of the treaty itself.

They object variously to such things as the development of European cooperation on foreign policy and defence, the primacy of European law, the regulation of the single market, and the growing powers of the European Parliament. But these are not features of the Lisbon treaty, they are characteristics of the European Union as a whole.

European foreign policy cooperated started as far back as 1970, the primacy of European law was implicit in the Treaty of Rome of 1957 and made explicit by a European Court ruling in 1964, the single market was launched by the Single European Act in 1986, and the European Parliament became directly elected in 1979. It would take much more than simply unpicking the Lisbon treaty to deal with these concerns.

Furthermore, these points are not mere characteristics of the European Union but absolutely fundamental to it. The reason why it works is because European law has primacy over national law; the reason why it is democratic is because the European Parliament is becoming more powerful. To remove these features would be to change the EU in the most far-reaching way imaginable. The other 26 member states have joined it precisely because it has these characteristics: they will surely not give up on them happily now.

In that light, what outcome can possibly follow a British No vote to the Lisbon treaty? It is inconceivable that these objections could find satisfactory resolution within anything resembling membership of the EU as it is today. Unless the other 26 member states are willing to rip up 50 years of history (with which, remember, they are actually rather satisfied), a British No to the Lisbon treaty will surely lead to Britain’s departure from the European Union.

Now, if that is really the issue at stake in a referendum, the question on the ballot paper ought to say so. Proponents of a referendum on the Lisbon treaty ought to face up to the consequences of what they are proposing: for some of them, perhaps, that is what they really mean.

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