The referendum bill is not what it seems

David Lidington MP, Europe minister (picture Janwikifoto)

On the face of it, it is hard to disagree with the Referendum Bill to be brought forward by the coalition government.  Membership of the European Union has constitutional implications, as federalists have consistently pointed out, and there is merit in submitting constitutional changes to the people as a whole through referendums rather than leaving them to the political class to sort out among themselves.

But when one looks more closely at what the government has in mind, all kinds of difficulties start to emerge.

The written statement from the Europe minister, David Lidington, is carefully framed to say that there should be a referendum in the event of:

“any proposed transfers of competence-the EU’s ability to act in a given area-between the UK and the EU; and transfers of power, such as the giving up of UK national vetoes and moving to majority voting in significant areas, such as in common foreign and security policy.”

It is worth a moment to consider just why those “transfers” are significant.

First, the transfers of competence.  There is the difference between a simple international agreement and intergovernmental cooperation within the European Union.  The former depends on the political will of the member states, while the latter has the force of law, under the jurisdiction of the European Court of Justice.  So there is a qualitative difference here.

Secondly, thinking about what David Lidington refers to as “transfers of power”, there is indeed a difference between unanimous agreement among the member states and voting by qualified majority.  Under the former, any national government can ensure outright that nothing is agreed that it does not agree to itself; under the latter, it can only do so by forming a coalition of interest with other national governments, and there may be occasions on which it cannot.  This is also a qualitative difference.

Even if the underlying policy issues themselves are minor, there is nevertheless a qualitative difference in the way in which they are handled, and the view of the government is that these qualitative differences are sufficient to require a referendum.

But there is a third qualitative difference that the government expressly says does not require a referendum.  This is illogical, and this is the matter of enlargement.  When a new member state joins the EU, its government and its voters gain influence over laws that apply in the UK which they did not have before.  One of the reasons why some countries have been admitted to the EU and others have not is because of a judgement made by the existing member states about how that influence might be used.  The repeated French veto of the UK bid to join in the 1960s comes to mind.

The accession of a new member state does not “only amend treaty provisions to the extent necessary to facilitate the accession”, it is also what David Lidington would describe as a “transfer of power” from the UK to that member state.  Why is this not also a matter for a referendum?

To give a domestic analogy, I have a joint bank account with my wife.  Maybe it was a bold step to set up such an account – I pay money in but she might take it out and spend it on something I disapprove of, but I trust her and am willing to take that risk.  The government agrees: it is the kind of qualitative difference that, at member state level, should be subject to a referendum.

However, my joint account is with my wife, and not my neighbour.  To me, that distinction is important, but the government disagrees.  The government appears to be of the view that, once the principle of a joint account is conceded, it does not matter who has the right to take money out of it.  This can’t be sensible.

Why does the government draw this distinction between enlargement – which doesn’t need a referendum – and other forms of constitutional change, which do?  The reason is that any referendum on Europe would be hard to win, so the things the government opposes – “transfers of competence” and “transfers of power” – have to be put to a referendum whereas the things it is in favour of do not.

There is no principle here, no theory of democracy or popular sovereignty being implemented, merely a partisan pursuit of advantage.  It would be easier to respect this Bill if it was genuinely founded on a consistent view of the constitution.  Unfortunately, it is not.  The New Politics looks rather like the old.

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