Read Open Europe's English translation of the draft EU treaty

No doubt it was a slip of the tongue, as his spokesman duly hastened to emphasise. At a press conference in Dublin this month, the Downing Street website recorded Gordon Brown saying that he had “discussed the European constitution” with his counterpart, Bertie Ahern. Slips are, as always, revealing.

The EU “reform treaty”, on which the detailed drafting began this week, is supposed to be a tweak here and a tug there. On that, the mandate handed to drafters at the slimmed-down intergovernmental conference by last month’s EU summit is theoretically explicit. But the changes in train are a far cry from the mini-treaty, contained on a “few sheets of A4 paper”, that was being discussed only a few months ago.

In terms of the sovereign powers transferred to Brussels, of expanded roles for the European Court of Justice and the European Parliament, of the potentially intrusive and legally binding Charter of Fundamental Rights, and of expanded majority voting in the EU Council, the “reform treaty” is indeed the old constitution revisited.

The details of the 277-page text on which officials are working (in French) follow the rejected constitutional treaty so closely that it is, to put it mildly, odd that neither Brussels nor the Government can produce an official English translation until deep into the parliamentary recess (an English version of the amendments made can be found here).

The biggest difference will be that, whereas the constitution had the (limited) clarity of a text, the end result of this exercise will be an impenetrable legalistic impasto. So as Valéry Giscard d’Estaing, the initial constitution’s architect, puts it: “Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly.” Welcome to democracy, as defined by self-serving grandees and bureaucrats.

What, for example, will MPs, let alone mere mortals, learn about the real powers of the new EU foreign minister (now the High Representative of the Union for Foreign Affairs and Security Policy) when they read in Article 19 that “the words ‘without prejudice to paragraph 1 and article 14 (3)’ are replaced by ‘in conformity with article [1-16, paragraph 2]’”? Will they read on to the telling third sub-paragraph, which states that when the Union has defined its position on an issue before the UN Security Council, Britain and France “shall” request that the High Representative speak for them? What does the Foreign Secretary, David Miliband, really think about that? Or is he so weak that his opinion will not be sought by the Prime Minister?

The important constitutional innovations are intact. The President of the Commission will be elected by the European Parliament, not appointed by EU governments. EU foreign affairs councils will be chaired by a “minister” who is a vice-president of the Commission and runs his own diplomatic service. In justice and home affairs, as well as economic coordination and the environment, majority voting and co-decision with the European Parliament will become the general rule rather than the specified exception. The Union will acquire its own “legal personality”.

The original claim was that the new clauses would clarify where power lay. Insofar as this is so, it is in the EU’s favour. In the broad areas where responsibility is shared, governments will be able to act only “to the extent that the Union has not exercised, or decides to cease exercising, its own competence”. That turns subsidiarity on its head. What is not exclusively in the Union’s domain becomes so, if the Union so decides.

The drafters have been instructed to produce a text in time for the European Council on October 18. Such speed effectively cuts parliaments out of the loop. There is no pressing need for alacrity, given that the “urgent” treaty changes to make the EU work better, a new voting system will not now come into force until 2014. Democracy demands that the treaty be given detailed and thorough scrutiny.

The Prime Minister’s assertion that no new powers are being transferred to Brussels is difficult to reconcile with the mandate, or the draft text, or the firm belief in Germany, Spain and Italy that they have secured the constitution in all but name. He relies on a number of opt-ins and “emergency brakes”, and on a “declaration” that the Charter of Fundamental Rights will not “create justiciable rights applicable to the United Kingdom, except in so far as the United Kingdom has provided for such rights in its national law”. These safeguards may not hold. They are open to interpretation by the European Court of Justice. Even if they do, the Commission’s involvement in judicial and home affairs falls foul, on its own, of the “transfer of powers” test. Mr Brown will incur displeasure in Europe if he reopens the debate. But if he does not, the case for a referendum on this document will be compelling.