Lords should say no to a referendum

By Leon Brittan. Lord Brittanof Spennithorne was a European Commissioner, 1989-99 (THE TIMES, 01/04/08):

Today the Bill ratifying the Lisbon treaty comes before the House of Lords, having comfortably surmounted all its hurdles in the Commons.

The Lords will have to consider whether to approve the treaty and whether to support the demand for a referendum before it can be ratified. The two issues are separate, although closely related, because most of those demanding a referendum have no great enthusiasm for referendums as such, but are opposed to the treaty and hope that a referendum would scupper it.

The first and main question for the Lords is whether the treaty is good for the UK and for the EU as a whole. I would give an unhesitating affirmative answer to both.

The first purpose of the treaty is to make the EU function more efficiently and effectively after the recent huge increase in the number of member states. As the UK has consistently been a strong supporter of enlargement it would be perverse to refuse to approve those changes.

For example, I welcome the reduction in the size of the Commission and the capping of the size of the European Parliament. Moreover, the reduction in the number of issues where unanimity is required means that a single country will no longer be able to block legislation in areas such as energy, intellectual property, transport and research, where Britain has always supported EU action.

In the sensitive areas such as taxation and social security Britain will retain its veto. In addition, the treaty provides the UK with an extension of its right to choose whether or not to be bound by EU legislation relating to criminal law, police and judicial process. Furthermore there is a specific protocol preventing the Charter of Fundamental Rights itself creating justiciable rights in the UK.

When you add to that the substantial increase in the voting power of the UK in the Council of Ministers, and the new powers granted to the national parliaments, it becomes clear that for the UK the treaty taken as a whole does not amount to a significant transfer of power to the EU institutions. If anything the balance of power will have shifted away from the Commission towards the member states.

This is well demonstrated by the provisions that strengthen the EU’s capacity to act as a single force on the world stage. The merging of the roles of Commissioner for External Relations and High Representative for Foreign and Security Policy will increase the power of member states. Neither this measure nor the creation of a permanent President of the European Council confers new powers on the holders of those offices. But these measures do provide much greater continuity and clarity in the carrying out of the EU’s increasingly important role in the wider world. They do not impose agreement among the member states where it does not exist, and they do not enable the EU to act as a single entity where there is no such agreement. But by creating a clearer structure and greater continuity they will make it easier to build consensus within the EU and make it probable that the EU will be able to speak with a single voice more often on the world stage.

It is clear that on climate change, security of energy supply and the environment, no one country can solve these problems on its own, and it is in the interests of us all to increase the chances of the EU being able to act collectively. That is what the Lisbon treaty will achieve.

What then of the referendum issue? I hope that peers will focus more on the real issues of principle and less on what the political parties have said, or even on the minutiae of the differences between the Lisbon treaty and its failed predecessor, the constitutional treaty. As it happens, I believe those differences are substantial, as the independent Dutch Council of State has determined, and the differences are even greater for the UK than the other member states, because of other special provisions and opt outs.

I am, however, in principle opposed to referendums, as they are incompatible with representative parliamentary government, the true hallmark of the British constitutional system. It is simply not true to say that referendums have become an unavoidable part of our constitution. There has only ever been one referendum across the whole of the UK. That was the 1975 referendum on whether we should stay in the EU, which took place not for high constitutional reasons, but to solve the problems of a government that was seriously divided and wanted to change radically the policy that it had previously strongly espoused.

Nonetheless, I recognise that there is a widespread view that on matters of the greatest constitutional importance a referendum should nowadays be held. In the case of this Bill the real question that should be asked on this basis is: does the Lisbon treaty involve a substantial transfer of power from the UK to EU institutions? On any fair analysis the answer must be an unequivocal No.

One only has to compare it with the Maastricht treaty or the Single European Act to see that the Lisbon treaty is infinitely narrower in scope. It is, nonetheless, important to ratify it because it implements the changes needed as a result of enlargement, and because it will also help to create, but not impose, a common European foreign policy. But constitutionally it is a minnow, not a whale.

I yield to nobody in my support for and admiration of the House of Lords and the way it exercises its powers. The House is fully entitled to reject the treaty if it is regarded as contrary to the national interest. But it would be piquant, to put it very mildly, for an unelected House to seek to impose a referendum, the ultimate manifestation of populist democracy, where the elected House has declined to do so.