Move to accentuate British exceptionalism

October 21, 2010 12:00 PM
By Andrew Duff MEP in Ft.com

Tampering with constitutions is dangerous stuff and particularly so in the UK where, notoriously, very little is written down, revision procedures are light and checks and balances are not entrenched.

Britain's new coalition government has been bold enough to plan some large constitutional innovations, one of which, to please the Liberal Democrats, is to hold a referendum on electoral reform (of the House of Commons) next May.

The Conservatives are demanding a high price for that concession to modernity.They want to promote a bill which will change the terms of the UK's membership of the European Union.

Now in the final stages of its drafting, the European Union bill has two strangely contradictory parts. The first is a clause which will seek to assert the ultimate sovereignty of Westminster with regard to EU matters. The second is to take away from the House of Commons, and assign to the people via referenda, the power to ratify amendments to the EU treaties and other important changes to EU decision-making procedures.

Sovereignty

If the 'sovereignty clause' is to make sense it might lay down what happens if and when the UK chooses to trigger the new article of the Lisbon treaty (once despised by most Tories) which allows a member state to secede from the EU in a more or less orderly fashion.

It has always been possible, of course, for a state to leave the EU - in the UK's case simply by repealing the 1972 Act of EC Accession. But the drafters of Lisbon, knowing that the UK could one day abrogate its membership, laid contingency plans. A complimentary British reflection on what would need to be done constitutionally to withdraw from the Union is in itself no bad thing (even for federalists).

The sovereignty clause will go badly wrong, however, if it seeks to assert the primacy of the UK Supreme Court over that of the European Union's Court of Justice (ECJ) on matters of ultra vires. The primacy of EU law in areas where competence has been conferred on the Union is the corner-stone of the EU's constitutional order. Potential disagreements between national constitutional courts and the ECJ have been dealt with politely and skilfully so that bad quarrels are adverted. An aggressive initiative after all these years to bolster an out-moded idea of British national sovereignty will ruin the spirit of collaboration between the constitutional judges and send out an odd message about the UK's usefulness as a legal and political partner in Europe.

William Hague is perfectly entitled to a personal view that British sovereignty is an 'eternal truth', and being indivisible cannot be shared with others. But in his capacity as Britain's foreign secretary he must know that the European reality is otherwise.

Referenda

The second arm of the Europe bill is to impose directly on the hapless British electorate responsibility for taking complex decisions about the governance of Europe.

On this matter, I am not impartial, having long believed that referenda should be reserved for things which are really big, simple and visceral -- like legitimising a coup d'├ętat (or electoral reform). Referenda do not work for issues which are petty, complex and cerebral.

Isolated national referenda on EU issues may well unleash populist and nationalist forces that will be impossible for the mainstream political parties to manage, will provoke unholy coalitions of nay-sayers, will damage the Westminster parliament, will force the UK even further on to the margins of the EU, and, ultimately, settle nothing. (Which of us, if losing a referendum on Europe, would give up the fight?)

Last month David Lidington, minister of Europe, proposed an obligatory referendum on all EU treaty revisions which 'transfer areas of power or competence'. He magnifies a 'referendum lock' before the UK could either ratify a treaty change or cross a major passerelle or bridging clause (deliberately mistranslated as 'ratchet' clause).

For good measure, Mr Lidington adds that a referendum will also be needed before sterling joins the euro, as well as before the UK agrees to the establishment of the EU public prosecutor, joins the Schengen common travel area, or joins a core group of militarily-capable EU states in developing common security and defence policies. Confusingly, he also says that a referendum will be needed to introduce majority voting in the Council of Ministers of Foreign Affairs whereas QMV is already permitted in a wide range of common foreign policy.

Treaty change

Treaty change has always been an important dynamic of European integration. Treaty changes, all respectful of the principles of subsidiarity and proportionality, will surely be needed in future to give greater added value to EU policy-making and to boost the popular legitimacy of the EU institutions. Indeed, negotiations as early as next year on treaty amendment with respect to economic governance cannot be ruled out.

The coalition government is not only seeking to bind itself into holding European referenda, but also to put all its successor governments through contortions when confronted by EU treaty change. So it is very important that the Europe Bill as drafted (or later amended in the House of Lords) leaves a lot of wriggle room. In the absence of a classic federal constitution either at EU or UK level the criteria for deciding about what will and what will not trigger a referendum must remain subjective.

Passerelles

It is telling, and deeply unfortunate, that the coalition government has now fallen to using the prejudicial eurosceptic terminology of 'ratchet' clause. The passerelle instrument is a well-respected constitutional device to allow minor changes in decision making to be made without the full weight of a ponderous treaty change. It is demeaning for the government to use the contemptuous term 'ratchet': the multilingual Nick Clegg should suppress it.

Passerelle clauses are inserted pragmatically to oil the wheels of decision making. A passerelle might even prove useful for the UK when its own national interest is being blocked or distorted by another EU state.

No passerelle can be crossed without the unanimous agreement of all governments, not excluding the British coalition. Of the seven passerelle clauses in the Lisbon treaty, the most important is the general passerelle which allows, in areas where competences have already been conferred by the states onto the EU, for a unanimous Council decision procedure to become a QMV procedure or a special legislative procedure to be normalised to the ordinary legislative procedure (involving QMV in the Council and co-decision by the European Parliament). Any single national parliament can veto the use of this clause, not excluding the House of Commons.

In its zeal, the government appears to put great weight on the similarity between what it is trying to achieve in Britain and what other states are doing post-Lisbon. Although the Bundestag has legislated to increase its own powers over important EU decisions, including some passerelle clauses, Germany has a constitution in which the checks and balances between government and parliament are comprehensively laid down in any case, and a Basic Law which commits the Federal Republic to advancing European integration. Referenda are prohibited in Germany. And no other state is dreaming of having a referendum on a passerelle especially those, like the Irish, who know a deal about referenda.

The EU bill proposes changes in British law in isolation from a broader constitutional review. As often is the case, the British are seeking to ornament the operation of the EU treaties and law in an over-elaborate way. The changes mooted in the EU Bill are clearly intended, and may be interpreted by the UK courts as having been intended, either to create a special class of semi-detached membership for the UK or to stop further European integration for all.

The bill serves to accentuate British exceptionalism, and will therefore encourage Britain's EU partners to go ahead further and faster without the UK. It was largely to escape from the opt outs and cop outs of Messrs Blair and Brown that the Lisbon treaty facilitates 'enhanced cooperation' between a core group of like-minded integrationist states. It would be a pity if, by dint of injudicious drafting, the new coalition were to fuel the temptation among its partners to leave Britain behind.

Andrew Duff MEP is the spokesman on constitutional affairs for the Alliance of Liberals and Democrats for Europe (ALDE).