Summary: Should member states each hold a referendum on whether to ratify the EU’s Lisbon Reform Treaty?
In October 2007 the Heads of Government of the 27 European Union member states agreed at a meeting in Lisbon the text of an EU Reform Treaty (also known as the Lisbon Treaty). This document was the latest stage in a long-running attempt to reform the European Union. The process began with at Laeken in 2001, when European leaders declared that they would set up a Convention to draft a Constitution for the EU. This proposed Constitution would sweep away all previous treaties and refound the EU on a clearer basis, making it more transparent and appealing to the citizens of Europe, as well as reforming institutions that were designed for an EU of ten or twelve states to be able to run efficiently in a union of 27 or more members. In the summer of 2003 the Convention, chaired by former French President Valery Giscard D’Estaing, produced a draft Constitution, and this was accepted in amended form at a European Summit in June 2004. Over the next year 15 member states ratified the Treaty, some through national parliaments (e.g. Germany, Belgium), others by referendum (e.g. Spain, Luxembourg). However, referenda in France and the Netherlands both saw the Constitution rejected in popular votes, and as every member state must ratify all EU treaties before they become law, the Constitution was proclaimed dead. Seven countries which had not yet ratified the Constitution were committed to holding referenda on it (e.g. Denmark, Ireland, the UK, Poland, Czech Republic), but these were abandoned after the French and Dutch no votes – often with some relief by governments which felt their citizens might also reject the proposed Constitution. In 2007 the German Presidency of the EU revived the reform process, arguing that although ‘the Constitutional concept has been abandoned’ key parts of it could be salvaged and put in a new EU Treaty. An intergovernmental conference spent three months producing a new text, which differed from the previous Constitution in not seeking to replace all former EU treaties, but instead to amend them in a more conventional way. Opinion differs as to how much of the content of the original Constitution has been preserved in the new Reform Treaty. It was this Reform Treaty which was agreed in Lisbon in October 2007, and signed by Head of Government in the same city in December 2007. Originally nine EU states were committed to ratifying the Constitution by referendum – putting it to their people for acceptance or rejection in a popular vote. However, at the time of writing (November 2007), only Denmark and Ireland have said that they will call referenda on the Lisbon Treaty (and Irish law requires it to hold a referendum on any new EU Treaty). The other 25 member states have decided to ratify it in their national parliaments or assemblies. In France and the Netherlands the decision not to repeat the public votes of 2005 has gained broad acceptance. However, in the UK the Labour Government of Gordon Brown has been heavily criticised for refusing to call a referendum on the Lisbon Treaty despite his predecessor Tony Blair’s earlier promise of a referendum on the Constitution. This topic looks at the arguments for and against holding such a referendum in each member state. It is perhaps of particular relevance to the UK, France and the Netherlands, but the arguments can be applied in any EU country.
Pros
Cons
The Lisbon Treaty gives much more power to Brussels at the expense of member states. The symbols of a superstate may have been removed, but the Treaty still gives the European Union a legal personality, allowing it to sign international agreements as if it were a country in its own right. 60 areas where each country now has a veto will be made subject to majority voting. The Treaty will give power over criminal law and national justice systems to the Commission and European Court. The High Representative is an EU foreign minister in all but name, with a 5000 strong diplomatic staff to shape European international relations, and the permanent President of the EU Council will be an even more powerful figure. And worryingly, this is a self-amending treaty, which means that it creates a process whereby even more power can be given to Brussels in future without a major treaty negotiation process. Such major changes have to put to the peoples of Europe before they can be accepted. If the citizens of each EU member state agree, then the EU will gain hugely in legitimacy, but if they say no, then the drive to a centralised European superstate should be halted.
The Treaty is limited in significance, being much less ambitious than the proposed EU Constitution. The rejected Constitutional Treaty of 2004 would have given the European Union many of the trappings of a superstate – for example, an official flag, anthem, bill of citizens’ rights, Foreign Minister, etc. but these are all missing from the Lisbon Treaty. Instead the key changes in the new Treaty are technical reforms with broad support, all designed to make an expanded EU workable, with fairer voting shares, a more effective Council of Ministers, and a slimmed down Commission. Some powers are actually given back to member states; many national powers are explicitly safeguarded. Overall, the Lisbon Treaty does not have enough constitutional significance to be worth putting to national electorates in a series of referenda.
Citizens of many EU member states were promised a vote on the original Constitution, and Dutch and French voters actually rejected it in referenda. Apart from the removal of some symbolism, the wording of the Constitution and the Treaty is essentially identical – 96% of the text is the same. So all those countries who held or promised a referendum on the original Constitution should feel bound to hold one on its Lisbon Treaty replacement. What has been done is a cynical trick to make the whole thing so confusing to ordinary citizens that they do not realise this. The proposed Constitution aspired to be a simple and clear document which replaced all former EU Treaties and set out the powers and organisation of the European Union – its attack on national sovereignty was thus crystal clear. Now the new Treaty chops the original text around with a mass of cross-references, appendices and obscure revisions to existing EU treaties, designed to hide the fact that its actual meaning is almost identical to that of the original. Leading European politicians such as former French President Valéry Giscard d\'Estaing,, who wrote the original EU Constitution, have publicly stated that the Lisbon Treaty is essentially the same as the proposed Constitution.
Claims that the Treaty is all but identical to the rejected EU Constitution should be rejected. It is quite different, being a conventional amending Treaty, whereas the abandoned Constitution sought to re-found the European Union on an entirely new basis. So even if it was right to hold a popular vote on the Constitution, it is not necessary to offer one on the Lisbon Treaty. Those who argue that 96% of the Lisbon Treaty is the same as the Constitution are taking a very crude approach – what matters is the significance of the different words, not their numbers. The sentence: “It is time for Britain to leave the European Union” is 96% identical to “It is time for Britain to love the European Union”, but it has a completely different meaning. Those European politicians like Giscard D’Estaing who claim the Treaty is no different from the Constitution are appealing to their own core audiences, often attempting to reassure those countries who did ratify the Constitution that their efforts were not in vain and that nothing has changed. Just because they say it, does not mean it is true.
Some countries did hold referenda on these issues – just because states such as the UK did not does not mean they cannot or should not now choose to do so. After all, those decisions were made by past governments, many of whose policies have been rejected by present national administrations. Many would argue that it is precisely because voters have been denied a voice in EU integration in the past that they should now be allowed to pass judgement on what has been decided in their name.
Other treaties in the past have been much more significant in their impact on the relationship between member states and the EU, and they were not generally put to popular votes. Two important examples of this are the 1986 Act establishing a Single Market and the 1992 Maastricht Treaty. These treaties gave the EU wide powers over areas such as economic regulation, immigration, and financial and monetary policy (the euro). They also established the principle that some issues would be subject to majority voting, so that a single member state could not block progress. If these treaties did not need to be put to the people in popular votes, then the much more limited Lisbon Treaty certainly need not trigger a referendum. It is notable that many of those politicians calling for a vote on the Lisbon Treaty were in governments which enacted these previous, more significant treaties without bothering to use referenda.
We should trust the people of Europe. The original proposed Constitution was far less complex than the Lisbon Treaty which replaces it – the great difficulty anyone has in understanding the new Treaty is due to the deliberate way in which it was rewritten. Nonetheless, if the EU cannot command the support of the citizens of Europe, then its authority lacks legitimacy and its future will always be uncertain. If the politicians who agreed the Lisbon Treaty truly believe it is in their national interest, then they should take it to their people and sell it to them. Europe has free media institutions so we can be sure there will be a wide-ranging debate which will draw voters’ attention to all the key issues. Refusing to hold a referendum suggests that politicians have something to hide from their people, who will become suspicious of the European project and politically alienated.
Referenda with their stark choice of a Yes/ No vote are not the best way to consider such a complex treaty. Most voters have no interest in the complicated details of voting weights, or of changes in the composition of the EU Commission. The necessary legal jargon is rather off-putting and a detailed knowledge of the existing EU Treaties is necessary to appreciate the nature of the amendments being proposed. For these reasons citizens will not thank any politicians who call a referendum on the Lisbon Treaty: very few will be able to feel confident that they fully appreciate what they are voting for. In addition, the media will always distort the referendum campaign, providing biased coverage in order to promote their own political interests. Instead ratification should be through the legislature of each member state, allowing the people’s representatives to subject the Reform Treaty to detailed line by line scrutiny in order to decide whether it is indeed in the national interest to agree it.
Politicians always blame their voters when referendum results go against them. The people are accused of answering the wrong question – this happened when the Danish and Irish people rejected the 1992 Maastricht Treaty, and both nations were made to vote again until they got the “right” result. The same thing is happening with the EU Constitution – the French and Dutch rejections in 2005 are being ignored and their voters are blamed for not doing what they were told. Yet the reasons they gave for rejecting the EU Constitution are entirely sensible – they were not consulted on EU integration and enlargement in the past, and so felt alienated from the European project. When they were consulted at last, they registered their protest about the direction the EU had been taking, and most likely would take in the future. We must give the peoples of Europe a say on the future direction of Europe – refusing a referendum because the answer could be no is unacceptable.
Referendum votes always end up being about something other than the issue on the ballot paper. In many referendum campaigns the real issue becomes one of confidence in the government of the day and its management of the economy, law and order, public scandals, etc. So when people vote they are expressing their unhappiness at their national government rather than making a considered judgment about the future of the EU. This is exactly what happened in the French and Dutch votes on the EU Constitution in 2005. When asked what influenced their decision, most voters said that they disliked aspects of EU enlargement, especially the arrival of Eastern European workers who might take local jobs, and the proposed entry negotiations with Turkey – but none of this was anything to do with the Constitution.
Britain in particular should hold a vote on the Lisbon Treaty. Tony Blair’s Labour government promised that the proposed EU Constitution would be put to the British people in a referendum so that they could make an historic choice about the UK’s place in Europe. This position commanded broad cross-party and public support, given the huge changes in Britain’s relationship with the EU since the 1975 referendum on EEC membership – the only time British voters have ever been asked for their opinion on the issue. Only when the Labour government realised that it might lose such a referendum did it gratefully take the opportunity of the French and Dutch no votes to declare that it was unnecessary as the Constitution was already dead. Given that the Lisbon Treaty is the direct successor of that Constitution, the new Prime Minister Gordon Brown should honour Labour’s promise to put it to the people.
The UK in particular should not bother to hold a referendum on the Constitutional Treaty because it has already gained opt-outs and opt-ins on many of the changes within it. From the point of view of Britain therefore, the Treaty makes little difference and is not worth putting to a vote. For example, most of the 50 (not 60) areas where national vetoes have been removed don’t apply to the UK because of the opt-outs it has secured, or because they relate to the Euro currency, which it does not use. Indeed, there is a danger to the UK in holding a referendum and seeing it go against the Treaty – the crisis this would create in British-EU relations would threaten the UK’s interests. In particular, there is a real danger that other European countries would give up trying to accommodate Britain and instead adopt a much more federalist document, effectively forcing the UK out of the EU. Some of those demanding a referendum in the UK want exactly that, and are dishonestly using the issue of the Reform Treaty to provoke such a crisis.
Some issues are too important to be left solely to elected politicians to decide. As representatives of the people, they have only been lent power for a limited period. So when representatives propose to give away key parts of national sovereignty they should allow citizens a direct voice through a referendum. States such as Ireland and Denmark recognise this and hold votes on all EU treaties, including the Lisbon Treaty. As this new Treaty changes the relationship between member states and Brussels in a range of important ways, it is clearly a constitutional issue, and so the people should be able to vote on it in every member state. Nor is it true that the UK has no tradition of holding referenda – the 1975 vote was recognition that it was wrong to join the EEC without asking the people first. And the Blair Labour Government held referenda on a whole range of constitutional changes, including not only devolution in Scotland, Wales and Northern Ireland, but even on whether individual cities should have directly elected mayors – surely a minor issue compared to the loss of national powers to Brussels under the Lisbon Treaty.
The use of referenda undermines representative government and parliamentary sovereignty. Although a few countries such as Ireland and Switzerland have a strong tradition of holding referenda at regular intervals, other states such as the UK and Germany hold them rarely if at all. For these states referenda are associated with populism and even dictatorship, a way to undermine normal parliamentary sovereignty with its checks on executive power. Even on very important foreign policy issues, the people’s elected representatives are trusted with the power to make decisions for the good of the whole country – and they can be held accountable at the next general election if the voters dislike the decisions they have made. For these reasons Germany has held no referendum since the 1930s, not even on the critical issue of German reunification, and the UK has ratified every international treaty in parliament rather than by popular vote. Only on key constitutional questions, such as staying in the EEC in 1975, or devolution to Scotland and Wales in 1979 and 1997, has the UK used referenda – and the Lisbon Treaty has no constitutional implications for the UK.
