Sorry, minister: The Spectator is right about the EU Treaty
Nigel Lawson There are two reasons why Jim Murphy, the Europe minister, is wrong and The Spectator right about the question of a referendum on the European Union Reform Treaty (The Spectator is wrong to call for an EU referendum', 22 September). The first is that the government gave the people a solemn pledge that it would hold one before there was any question of ratifying the European Union Constitutional Treaty, and anyone who takes the trouble (and it does involve a wearisome amount of trouble) to study both documents will find that, to all intents and purposes, the content is the same. While different politicians from different countries state, for their own doubtless high-minded reasons, different views about the matter, I know of no dispassionate analyst who denies this.
Mr Murphy's attempt to stress the significance of the piffling changes between the two documents is also, incidentally, somewhat undermined by the fact that the government signed up to, and enthusiastically endorsed, the earlier Constitutional Treaty — something he unaccountably forgets to mention.
But the second reason for a referendum is even more important, and one which would have applied whether or not the government had given the pledge it did. It is important not to get hung up over words, whether they begin with a C or even an F, as so many on both sides of the argument do, and to look at the substance.
The European Union (like its predecessor, the European Community) has always had a written constitution. This is unavoidable for any political entity of a federal nature, where there are two levels of government, and it is necessary to spell out which areas of government are the responsibility of which level. The only reason we in the UK can make do with an unwritten constitution is that ours is unitary: so far as the relationship between central and local government is concerned, Parliament at Westminster is supreme and unfettered.
The constitution of the European Union consists of the various EU treaties. The idea behind the Constitutional Treaty was effectively to consolidate these into a single treaty (the purely formal process that has now been abandoned), and to make some changes at the same time, some of them to reflect EU enlargement, but others that went far further than this. Indeed, for some time government ministers sought to pretend that the Treaty was simply a consolidating measure, plus some practical changes to accommodate enlargement; and it was only when they were forced to concede that there were major changes over and above this that they promised a referendum.
The constitution of the European Union has always been somewhat lopsided, in that the Treaties spell out the areas where the Union has competence, but not those where the individual member states have competence. The position is that, for the time being, areas where the Union does not have a specified competence remain within the competence of the individual member states; but at any time an area of government may be transferred from the member states to the Union. This is unusual in any federal set-up, but of course it reflects the EU doctrine of 'ever closer union'.
However, there is at present a dual safeguard against such a transfer. For it can take place only by a formal treaty amendment, and any such amendment requires both the unanimous agreement of the governments of the member states and ratification by the parliaments of every member state. (It is left to the constitution and discretion of each member state to decide whether, in its case, ratification should also involve endorsement by a popular referendum.) The most important constitutional innovation of the EU Constitutional Treaty was to abolish this double lock. Under the so-called passarelle clause, any area of government could henceforth be transferred from the competence of the member states to the competence of the Union without any need for a formal amending Treaty, provided only that it secured the unanimous agreement of the governments of the member states. In other words, the need for parliamentary ratification would have been abolished.
The passarelle clause is contained, unaltered, in the European Union Reform Treaty now before us.
I find it deeply depressing that the present House of Commons is apparently (although I hope I am wrong) so spineless as to be prepared to approve this massive and irrevocable erosion of its authority, and to allow itself to be bypassed in this way, contrary to the interests of the British people. But whether it is or not, it is clear that, if there is ever an issue of sufficient constitutional importance to require the endorsement of the British people in a referendum, this is certainly such an issue.
Lord Lawson of Blaby was Chancellor of the Exchequer; 1983-89, and editor of The Spectator, 1966-70.
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