We can put the brake on Brussels

By Lord Owen (THE TIMES, 09/12/07):

Britain is becoming a laughing stock in Brussels over the EU reform treaty. A cynical exercise looks like succeeding in changing the name but not the substance of the 2004 constitutional treaty. Do our politicians think we are stupid?

All three parties promised a referendum on this treaty in the 2005 general election. Enough politicians in those parties are now ready to rat on that obligation and allow the treaty to pass into law.

A 30% cut in Britain’s power to block legislation when votes are taken is no minor matter. Nor is the introduction of majority voting in 16 new areas, from energy to employment law, and in 11 specific areas of the common foreign and security policy.

An institutional reform involving a new powerful EU president appointed by heads of government on a qualified majority vote represents a deliberate attempt to merge the separate intergovernmental and supra-national foundations of the European Union.

Signing up for the EU reform treaty in Lisbon on Thursday is a matter of profound consequence. It locks the UK into a process of further integration, with consequences that are hard to foresee. Yet the repercussions of Britain rejecting this treaty, albeit flawed and dangerous, would also be profound.

We boast about Westminster being the mother of parliaments. Well, now is the time for our parliamentarians to show their mettle.

The actual wording of this treaty cannot be changed by parliament. But in the very vagueness of its wording lies both danger and an opportunity. Westminster can tease out the true meaning of the words, delineate their scope and put in place numerous braking mechanisms. This could ensure that no member of any British government – present or future – could commit us to further integration unless there was first primary legislative approval.

The precedent was established in 1977. A Foreign Office lawyer told me there was nothing in our membership of the European Community to prevent Britain from legislating to ensure that no further increase in the powers of the EU parliament (then called an assembly) could be introduced without primary legislation. She was right, and that legislation still stands to this day as a powerful braking mechanism.

It is not enough to rely on a single vote in parliament for any extension of qualified majority voting, as has been promised by the prime minister. That is an insufficient safeguard. There has to be the full process of parliamentary scrutiny and deliberation, which primary legislation involves.

Of course, such a move will be unpopular in Brussels for it will slow down the decision-making of the European Union, and deservedly so.

We will be doing this not just to preserve British interests but to preserve the rights of millions of European citizens who show in opinion poll after opinion poll, and when offered the rare opportunity of voting in a referendum, their profound concern about the inexorable steps towards ever-increasing integration.

Quite apart from introducing this brake, parliament should insist that the Reform Treaty Bill, after it has completed all its stages and before royal assent, be put to the British people in a referendum.

There is merit in having two questions. The first question, as suggested by the Liberal Democrats, would be: should the United Kingdom negotiate its withdrawal from the European Union? The second question would be: on the assumption that the United Kingdom remains a member of the European Union, should it approve the reform treaty?

If there were two questions, it would reduce the risk that the answer to any question on the reform treaty would be treated as undermining our continued membership of the European Union. On such a basis, I would reluctantly vote “yes” in a referendum.

On the assumption that my baleful prediction is correct and the Labour government, aided by Liberal Democrat MPs and a few Conservative rebels, gets the reform treaty on the statute book without a referendum, the public’s attention will turn to what a Conservative government would do if elected in 2009 or 2010 after the treaty had been ratified.

The very minimum would be to promise that within two years every conceivable parliamentary brake on the process of integration would be on the statute book, either through specific EU legislation or as part of the written constitution the Conservative party is examining.

Such a written constitution would ensure that in those areas where parliament had made clear its interpretation of the vague words in this treaty and delineated the powers and competences that it contained, the new United Kingdom supreme court would have the power to override any contradictory interpretation of these words by the European Court of Justice.

For example, we could expect our supreme court not to accept that the roles of president of the commission and president of the European Council could be “double-hatted”, in contravention of all the assurances given to British ministers.

A new government in 2010 would be entitled to act in such a way. This would not be a renegotiation of the treaty, like what the government claimed to have achieved in the rather exceptional circumstances before the 1975 referendum. As part of the process of negotiation within the EU, a new government might also be able to reach agreement on restoring to the member states some of the powers currently exercised by the EU that more appropriately should lie with national parliaments.

I will never be a Conservative and I remain a committed social democrat. But the alternation of power is part of our democracy. The fact that the reform treaty could be made more palatable by another government may make the present government reconsider its promise to hold a referendum and revive the Callaghan government’s principle, that primary legislation is the proper parliamentary brake to apply to further EU integration.