James McConalogue: Equivalent, but not the same

James McConalogue, Editor of the European Journal, comments on the ESC's finding that the EU Treaty is substantially equivalent to the Constitution.

The Labour-centric, All-Party House of Commons European Scrutiny Committee has now reported on the legal and political importance of the EU Reform Treaty. Beyond its examination of the ‘secretive’ way in which the European Reform Treaty had been negotiated and the fact that no national parliament has been allowed time to carry out proper scrutiny, their report is damning: “the new Treaty produces an effect which is substantially equivalent to the Constitutional Treaty.” In the UK, it offers no support to Gordon Brown’s current position or Tony Blair’s ‘red lines/opt outs’ approach on the Treaty, and more positively, it goes some way to supporting the Conservative case for a referendum.

However, it is important to point out that on a careful analysis of the European Scrutiny Committee report, the line taken should be that the Reform Treaty “produces an effect which is substantially equivalent to the Constitutional Treaty.” Please be aware that by this, it does not automatically mean “the same”, since, unlike the Constitutional Treaty, the Reform Treaty does not repeal existing Treaties but it amends the Treaty of Rome (economic powers) and Maastricht Treaty (European government) into a Union with a self-amending text. In short, I am led to believe that it is saying that this new Reform Treaty is ‘equivalent but not the same’. Politically, it delivers the same powers, if not more; legally, it is a different species of document.  And yes, both the Constitutional Treaty and the new Reform Treaty both amounted to fundamental constitutional change. That is grounds for a referendum.

The report holds that for most countries in the EU – those who have no derogations or opt-outs – most proposals in the rejected Constitutional Treaty of 2004 remain in the Reform Treaty. Most people who read a British newspaper will be aware of his fact already. Bizarrely, the report comes one week before the next informal meeting of the heads of state and governments of the EU member states on 18 October. The Portuguese Presidency is hoping to wrap things up on the EU Reform Treaty prior to a formal agreement at the December European Council.

The report slams the way that the Union approaches national parliaments, as if all are prepared to become merely subsidiary councils of the ever-closer Union. The Committee emphasises that national parliaments, unlike the European Parliament, are not creations of Treaties and their sovereignty is not dependent on them. Thus, the attempt to impose a legal duty on the UK Parliament would be “objectionable”. The All-Party Committee is right to point out that this Treaty is about a form of change which erodes the authority of a Westminster Parliament – since it is the change in the suffering relationship between the national electorate, our Parliament and the Brussels-based EU that makes such a step so significant.

The Chairman of the European Foundation, Bill Cash, MP, said yesterday that “the Government has deceived the British people. Tony Blair has left Gordon Brown a poisoned chalice. The Reform Treaty is substantially the same as the Constitutional Treaty. The Government has broken its promises and must now reject the Treaty, and if it will not, must hold a Referendum for the tens of millions denied one on Europe since Harold Wilson in 1975 and must stop the Charter by passing Westminster legislation overriding the European Communities Act 1972.” And this is not simply a Conservative issue. The Chairman of the Committee, Labour MP, Michael Connarty, also despaired at the suppressed role of the national parliament: “The European Council claims it want to provide EU citizens with ‘full and comprehensive information’ during the IGC. However, the essentially secret drafting process conducted by the Presidency, combined with texts produced at the last moment before pressing for agreement, could not have been better designed to marginalise the role of national parliaments.”

Bill Cash himself raises some important concerns in the report – see his rejected amendments in the back of the report, voted down by the Labour members – not least because of his simple approach to having a representative British (and not European) government responsible to the British electorate, without which you can not have a functioning and cohesive society (let alone a democracy). Whichever aspect you might choose to focus on – the Charter of Fundamental Rights, Common Foreign and Security Policy, criminal law or the legal obligations imposed on the UK Parliament – all provisions would effectively contribute to significant fundamental change between the British people, our government and that ever-growing leviathan, the European Union. And yes, that is unacceptable. And yes, when Mr Brown was first appointed, he did prepare speeches and a report on restoring the people’s trust in the British Parliament which does not make sense when he simultaneously is preparing to sign a European Treaty surrendering the authority and power of Westminster.   

It is time to insist that Gordon Brown takes on board the Committee’s criticisms and rejects the Treaty. This Treaty – equivalent but not the same as the Constitutional Treaty – at the very least will require a referendum. It would be deceptive to refuse to hold one, unless of course Brown cares to reject the whole thing next week in the IGC on 18-19 October. Both in terms of what this single Treaty means and the previous manifesto claims made on the Constitutional Treaty in 2004 which is equivalent (but not the same), the Prime Minister must be compelled to take that step.