EU Bill Is Bad Tory Policy

December 15, 2010 9:55 AM
By Andrew Duff MEP in Libdemvoice.org

The European Union Bill is a Tory policy. The Liberal Democrats went into the last election arguing for a referendum on whether the UK should stay in or leave the EU. Thankfully, having lost the election, we were not in a position to test public opinion on that one.

The Conservative party wanted a referendum on the Lisbon treaty in order to repatriate powers and to entrench national sovereignty. On losing the election they discovered that Lisbon was already in force and could not be undone. So their new tactic was to undermine the Lisbon settlement whenever opportunity arose, and it is this policy that they have imposed on the coalition government.

Lib Dem ministers, like Jeremy Browne, should not pretend that the Tory policy is akin to Lib Dem policy. It is not. Nor should Lib Dem ministers be complicit in arguing that the EU Bill is a good policy. It is not. It is, indeed, a very bad Tory policy.

The effect of the Bill will be to change forever, and for the worse, the terms of Britain's membership of the European Union. One might be forgiven for wondering, after all the red lines and opt-outs of the Blair-Brown era, if Britain's relationship with the EU could become even more semi-detached without becoming entirely detached. One is about to find out.

The Bill will impose referenda, in each case preceded by an act of parliament, on any major change in the EU treaties, on the use of the seven Lisbon passerelle clauses (which bring some necessary flexibility into decision-making procedures), and on UK participation (albeit unlikely) in any form of 'enhanced cooperation' among a group of integrationist minded states. The imposition of a referendum will be automatic apart from a small room for discretion left to ministers on minor issues. Paradoxically, the only treaty changes which will not trigger a referendum are those relating to EU enlargement - precisely the issue on which France and other states are insisting on having a referendum. Such British particularism only serves to fuel the suspicion widespread in EU circles that the UK wants to expand the size of the Union only in order to weaken it.

The Bill also contains a 'declaratory' sovereignty clause which recalls that the UK is a member of the EU, and thereby recognises the primacy of EU law, only by virtue of its original Act of Accession in 1972. It is this aspect of the legislation which has induced Byzantine legal pedantry in the Commons' EU scrutiny committee, chaired by the arch-nationalist Bill Cash MP. He and his colleagues treat sovereignty like the crown jewels, in safe-keeping. While no witness to the enquiry has supported that approach, very few have been able to substantiate the government's arguments for the inclusion of the sovereignty clause. Indeed, as the Commons has continued to work away at the Bill, it is becoming apparent that the legislation is crafted not to address any real legal mischief but merely as a sop to Tory party prejudice against Europe. Unfortunately for the government, the Bill has failed even in that objective: in the second reading vote on 7 December, Mr Cash and his close associates abstained.

There is a delicious irony in seeing those MPs most vexed by the ceding of parliamentary sovereignty to the EU institutions perfectly happy to dish it out via binding referenda into the arms of a hapless electorate. Likewise, these same MPs continue to insist on the common law principle that no parliament can bind its successor as they busy themselves with ensuring that referenda will be entrenched in Britain's rickety constitution for all time. David Lidington, Minister for Europe, crowed that the Bill if enacted would be 'enduring' because the 'political cost' to any government which sought to repeal it would be too high. How right he is.

Labour is voting against the Bill for reasons which are not altogether clear. One hopes for some sharper criticism when the draft law reaches the House of Lords. The Bill is causing great alarm in the EU institutions, where fears are raised that it is in conflict with EU and international law. The UK has always tended to over-elaborate the transposition of EU directives into domestic law, but this Bill presages something a lot more damaging. Lisbon designates ten cases where EU decisions have to be ratified by national constitutional requirements. This Bill imposes many more unilaterally.

The government puts undue weight on the similarity between what it is trying to achieve in Britain and what other states are doing post-Lisbon. Yet no other state is dreaming of imposing a referendum on a passerelle clause or enhanced cooperation. 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.

The proposed changes in British law, on the other hand, are taken in isolation from a broader constitutional review in the UK. They are clearly intended, and will be interpreted by the UK courts as having been intended, to stop further European integration. British ministers will be hard pushed in Council to fulfil their legal duty to commit their state to legal acts, and EU law making risks being much delayed. The UK is making itself an untrustworthy negotiating partner, particularly in matters of treaty amendment which has been and still is such a key driver of European integration.

At home, referenda will unleash the forces of populist nationalism. Facile coalitions of nay-sayers will form to block Britain's progress in Europe. Low turnouts in regular referenda on issues of mind-boggling complexity will further sour the British people's already febrile relationship with the Westminster parliament and its political parties, as well as stirring up anti-European sentiment.

Nobody need delude themselves that an EU referendum in Britain can be won, at least for a generation. The blunt truth is that if this Bill becomes law no future EU treaty revision will be possible as long as the UK remains a full member state of the Union. The rest of the European Union is getting ready to move on without us.

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