A decision for the people
Patrick Cosgrave
The strictly technical, legal, and constitutional aspects of the argument about whether or not Britain should have a referendum on the question of her remaining a member of the European Economic Community, or leaving it, are difficult enough, in all conscience, to untangle, let alone resolve. Small, moreover, seems to be the prospect of converting a pro-referendum man to the opposite side, or vice versa. Nonetheless, it should be said that there are many compelling reasons for having a referendum, and not the least of them is constitutional. Even commentators not noted for the fervour of their Europeanism — like Mr David Wood — have opposed a referendum,' partly because the holding of one might be a precedent for the holding of others, on far more trivial matters, partly because the referendum scheme gives Mr Wilson a supreme opportunity to exploit his skill at the politics of manoeuvre, and partly because of the sheer difficulty of drafting a piece of legislation — such as will be needed before the event actually takes place — which adequately encapsulates the complexity of the whole business. (This last is not, of course, an argument that can be put forward with any honesty by pro-Marketeers who supported Mr Heath's EEC Bill which was as dishonest and evasive a piece of legislation as the House of Commons has seen in many years, and was known to be so as it passed on its tricky and bullying way through Parliament.) On the other hand, there are passionate pro-Marketeers in favour of a referendum. I was delighted to find the other day that I was able to add to their number my friend Mr Keith Kyle and, since his argument is the same as my own and, since both of us, and many people like us, regard it as the overwhelming argument, I will summarise it first.
I must refer initially, however, to the old constitutional principle which Mr Mark Arnold-Foster adumbrated again recently in the Guardian — that is, the principle that no Parliament can bind its successors. It is this fundamental rule of our Constitution which proMarketeers of all countries are determined, honestly and avowedly, to overthrow. The principle expresses in its highest form the essence of British parliamentary democracy and it gives the power, inter aim, to a Parliament to abrogate a treaty agreed to by a predecessor. Of course the abrogation of a treaty is not something to be done lightly, but it might sometimes be in the national interest to do so, and then the power remains to the Parliament of the day. (It is the case, for example that had Sir Edward Grey not lied to the House of Commons at the opening of the first world war about the nature and extent of the foreign obligations he had entered into that Britain would .not have observed the treaty with Belgium.) Foreigners utterly fail — or claim to fail — to grasp the fact that any power entering into a treaty with Britain should do so knowing that this principle obtains, and that it is one of the clearly unspoken conditions of negotiations. I tried to demonstrate this only the other day to the Irish Foreign Minister, Dr Garrett Fitzgerald who, despite being an able man, failed utterly to grasp it. It has nothing to do with perfide Albion, but is rather a basic fact about the nature of our political liberty.
Now — and here is, I think, where the essence of the pro-Marketeer's logic lies—the Treaty of Rome is designed to be much more than a treaty. It was designed, rather, as a skeletal constitution containing, as some written con
stitutions do, fundamental and unalterable laws, the first of these being that the Treaty could not be abrogated. Thus, the first principle of the Rome Constitution comes into direct and immediate conflict with the first principle of the British Constitution, and one or the other must, sooner or later, prevail. The Treaty of Rome, by its very nature, abolishes parliamentary sovereignty: it does not limit it, it abolishes it. The actual abolition may take some time to be completed, but the point is there nonetheless. The fact that it is causes those in favour of a referendum to believe that such a step, the extinction of the British Constitution, should not be taken save by the people as a whole and, likewise, that the only available — albeit imperfect — instrument should be used to determine their will.
The transcendent importance of the issue, we further believe, puts this occasion outside and above all others — such as capital punishment, or licensing hours, or whatever — on which, the anti-referendum lobby believes, we might have referenda if we have this one, thus turning Britain into a plebiscitary rather than a parliamentary democracy.
There is, however, a further objection that the difficulties of drafting either the necessary parlimentary legislation or the terms of the referendum itself are likely to give rise to massive and unresolvable complications, such as would enable unscrupulous politicians to make themselves over into demagogues and such as, besides, would make it immensely difficult for the people to make an informed choice. All these, it seems to me, are spurious objections, though it continually amazes and depresses me that so many pro-Marketeers openly profess so deep a contempt for the intelligence and ability of the electorate, while continuing to proclaim themselves to be democrats. The drafting of the legislation and the referendum itself are both the essence of simplicity: the government of the day need merely ask Parliament for authority and finance to ask
the people, on an ordinary electoral basis, "Do you wish Britain to remain a member of the EEC or not?" Nor is that too simplistic a question. Any re-negotiated terms, the old terms, the general principle, can perfectly adequately be debated during a referendum campaign by interested parties. The choice before the people would be no more difficult, no more imponderable, than that which they have to make at any general election.
My proposed question is phrased in such a way as to allow for either a consultative or a mandatory referendum. There are two ways ill which a referendum could apparently be made mandatory — either the government instituting the referendum could declare that it would be bound by the wishes of the people later to be expressed; or the obligation to obey that will could be written into the legislation. I confess I would prefer the latter. However, the objection has been advanced that it would be as, or almost as, revolutionary thus to devise the terms as it has been to accept the Treaty of Rome. This is because it is equally a constitutional convention that the private member cannot, once he has taken his seat, be bound in his parliamentary actions by any undertaking given by him to, or any condition however imposed on him at his election by, the electorate. I would argue that this could be overcome to a very large extent by writing the obligation of obedience into the referendum legislation. The survival of Parliament in our domestic policies depends not only on adherence to historically established principles, but also on a reasonable balance between the desires and ideas of the men at Westminster and those of the electorate at large. Frequently, Westminster sees things more clearly and justly than do the public, inflamed, perhaps, by a moment of passion or indignation. Frequently, however, the public see more truly than those in the London cloister. There must always be some give and take between the two. And if the people are given a chance to proclaim their will in this most fundamental of all matters, and Parliament were then to try to overturn that will, the doom of the compromise by which we are governed would indeed be at hand.
Nonetheless, there are some who would undoubtedly try. It is perhaps one of the most amazing of political facts in our long historY that, despite blandishment after blandishment, propaganda outrage after propaganda outrage, the spending of untold millions on pro-Market advertising, the juggling of statistics and the employment of whole civil service departments on the manufacture of lies, there has never been a majority of the British public in favour of membership of the EEC, according to Such imperfect methods of measuring opinion as are available to us. Any marketeer who would challenge those conclusions has only, to preserve consistency, to agree to letting the people have their say openly and properly. For my part would abide, though with sadness, to a national verdict in favour of membership: the Marketeers, walking in fear of the people are already planning their escape routes.
There is one final consideration, which it saddens me that so many members of the Conservative Party do not see. All, pro and anti-Market alike, express the view that a decision for or against the Market is one utterly decisive for the future direction of this country, perhaps the most important decision that has been made for centuries. Yet, the pro-Marketeers and the majority of Conservatives are determined, and freely express the determination, that the people shall not have the final say in the matter. Now, in my own view, the people whether they, in my or anybody else's view choose well or ill, whether they are intelligent or stupid, cunning or selfish, have an absolute right to make the decision, and any technical or legal or constitutional argument that puts the reverse view is balderdash, and evil balderdash at that. The life of a great country cannot be extinguished by the malign commitment of any such as would hold such views.
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