very major concessions have been made to the UK,” said Denis MacShane, the
former Europe minister. “There are a lot of grumpy comments about our
opt-outs and red lines. We have a pretty unique relationship now with the
EU.”
Indeed, outside the agreeable atmosphere of the negotiating room, some of the
delegates from other countries could not hide their anger at the British
government and its grandstanding.
“Countries like Britain, that are always claiming special clauses and using
them, that always want to get out of common policies through opt-out
clauses, need to know that they will become something like partial members,”
warned Jean-Claude Juncker, the prime minister of Luxembourg.
Klaus Hänsch, a German MEP who was closely involved in the negotiations in
Lisbon, described Britain as “egoistic”. Hans-Gert Pöttering, president of
the European parliament, said he “regretted” that some countries had chosen
to opt out of parts of the treaty.
Such comments will make Brown’s job of selling the treaty to a British public
– at best ambivalent about ever closer union with Europe – all the easier.
But, for all the prime minister’s bullishness, there are questions about the
deal struck in Lisbon that may come back to haunt him.
Just how well drawn are the red lines protecting British interests? Can Brown
drown out the growing clamour for a referendum on the treaty and what will
be the consequences of not having one? KEY to Brown’s assertions about
protecting British interests in Lisbon were the red lines that allow Britain
to opt out of or into EU provisions relating to justice, foreign policy,
social security and tax and the overarching Charter of Fundamental Rights.
David Cameron, the Tory leader, has characterised them as “red herrings”,
while the chairman of the Labour-domi-nated House of Commons European
scrutiny committee last week said the safeguards would “leak like a sieve”.
Those involved in the drafting of the treaty say the concessions won by Tony
Blair in June, which Brown has inherited, are indeed not as watertight as
has been suggested.
Particularly vulnerable is the Charter of Fundamental Rights which, aside from
its general protection of personal freedoms such as thought, expression and
family life, has important provisions relating to the workplace.
According to one of the three MEPs who helped to draft the treaty, the problem
with the British opt-out is that the charter is subject to case law at the
European Court of Justice.
“I am surprised the British feel so confident they have a cast-iron guarantee.
It is not the view over here,” said Andrew Duff, the Liberal Democrat MEP
for the East of England.
“The charter obviously has to be tested in the courts and it lies with the
courts to decide. There are some circumstances where it [the opt-out] could
work and some where it wouldn’t.”
Case law could arise from cross-border issues, in particular. “A Frenchman in
England who was in trouble could use the charter in his defence, or British
companies that work abroad could raise the charter in litigation,” said Duff.
Describing the new treaty as “extremely significant” in terms of European
integration and on a par with Maastricht, Duff said the opt-outs and optins
had been drafted by legal experts with the specific aim of pressuring
Britain to join in.
For example, a loophole picked up by the Commons scrutiny committee last week
means that in five years’ time Britain will face the choice of accepting the
full competence of the European Court of Justice on many new justice
measures, or opting out of certain measures altogether.
This would apply to measures Britain has already joined, such as the European
arrest warrant and the sharing of DNA databases. Many argue that to opt out
of these measures would hamper the fight against organised crime and
terrorism.
While other EU countries have allowed Britain concessions over its red lines
out of political pragmatism, they expect the UK to backtrack on its opt-outs
in the future.
Yesterday Jose Manuel Bar-roso, the European commission president, said the
red lines would be held “for the time being”. Asked what he meant, he added:
“Until Britain changes its mind.”
A more immediate reversal could be forced by legal challenges being planned by
trade union leaders. The Prison Officers’ Association is already preparing a
challenge in the European Court of Justice against the government’s refusal
to allow them the right to strike, which is enshrined in the charter.
Perhaps more significant for Brown is the political fallout from the treaty
and his decision to go back on Labour’s 2005 manifesto promise to put it to
a referendum.
It is an issue that the Conservatives will press hard in the coming months
before the treaty is put before the Commons for ratification early next
year. They will point to European leaders’ near-unanimous hailing of the
treaty as resurrection of the rejected 2004 constitution as proof that Brown
is being evasive.
“We want to pile the misery on Gordon Brown,” said a senior Tory who is close
to Cameron. “He promised a referendum but now he’s saying we don’t need one
on a treaty that hasn’t really changed.
“It’s all about trust. If we can go on painting Gordon as someone who is
high-handed and doesn’t listen to the people, then we will be able to make
progress.”
The fact that just over the Irish Sea the government is constitutionally
obliged to hold a referendum will be used as a stick with which to beat
Brown. If it is good enough for the Irish, why not for Britons? A HARRIS
opinion poll last week suggested that there is a pan-European public desire
for referendums. Some 75% of Britons, 76% of Germans, 65% of Spaniards and
63% of French said that they should get a vote on the treaty.
In France, whose people rejected the original constitution, Nicolas Sarkozy
made not holding a referendum part of his presidential election platform. “I
stick to my word,” he said last week.
Other European countries that are considering a referendum include Denmark,
the Czech Republic and Poland.
In Britain, the clamour for a referendum will continue to grow. A new campaign
will be launched this week to target 70 Labour MPs in the most marginal
seats who do not back one. The Democracy Movement, funded among others by
Tom Kremer, an entrepreneur who popularised the Rubik’s Cube, will send out
2m personalised leaflets accusing the local MP of taking voters for “fools”.
Some Labour loyalists believe they will gain from such Eurosceptic campaigning.
“I just question whether it’sa good idea for the Tories to keep on obsessing
about Europe,” said MacShane. “Will people vote for a party which is as
obsessively antiEuropean as William Hague [the shadow foreign secretary] and
David Cameron are now making the Tories? I don’t think so. The notion that
in the next few months people are suddenly going to feel that heavy hand of
Brussels is silly.”
All the signs are that Brown will try to tough out the period before the
treaty is put to parliament. He has advised his cabinet to expect a long
fight. Twenty days of the parliamentary session have been set aside for
detailed scrutiny. He hopes this will demonstrate that the treaty is too
complicated to hold a referendum on. But that does not mean he can count on
an easy ride.
Between 20 and 30 Labour MPs are expected to defy the whip and vote for a
referendum. Some are now demanding a free vote on the issue.
Graham Stringer said: “I think there should be a free vote. When the
government want you to vote directly against the manifesto, that’s the least
they can do.”
This weekend, ministers were devoting time to seeing off the rebellion. “We
have spent a lot of time with people who voiced concerns and really went
into the fine detail,” said Jim Murphy, the minister for Europe. “We are
confident the Commons will vote against any referendum and in the Lords it
will be the same story.”
There were signs that the strategy was beginning to pay off. Last week there were
tense exchanges between David Miliband, the foreign secretary, and Michael
Connarty, the Labour chairman of the European scrutiny committee. The MP was
forced to apologise for a remark that compared Miliband with Neville
Chamberlain and his “peace in our time” summit with Hitler.
The committee was highly critical of the government’s assertions about the red
lines. But yesterday, while asserting that he remained in dispute with the
government about some of the treaty’s provisions, Connarty said the debate
could be settled in the Commons.
“I think the Labour government could spike it, quite frankly, if people had a
full and honest debate in parliament about the consequences of what we have
signed up to,” he said. “I wouldn’t vote for a referendum. I’ve never been
convinced of their value on matters of such detail.”
Brown will be hoping that reports of how that detail is presented to
parliament will convince the public likewise. His decision to weasel out of
a manifesto promise of a referendum may take longer to shake off.
Additional reporting: Chris Gourlay
Irish doubts
THE only citizens of the European Union who are guaranteed a say on the reform
treaty agreed in Lisbon last week are evenly divided between “yes” and “no”
camps, writes Jan Battles.
A poll last week by RTE, the Irish state broadcaster, suggested that rejecting
the treaty was a real possibility. Asked if they would vote to ratify the
treaty if a referendum were held tomorrow, respondents were split, with 35%
saying yes and 35% no.
The key to the result will be the 21% who said they were undecided. A further
9% said they didn’t care.
The government is constitutionally obliged to put all such treaties to a
referendum.
In May 2001 the Irish people rejected the Nice treaty by 54% to 46%. Invited
to consider it again in October the next year, they ratified it by 63% to
37%.
Rejection of the Lisbon treaty would plunge the whole union into crisis as
French and Dutch voters have previously voted “no” in referendums on the
treaty’s constitutional predecessor.
Is the Lisbon treaty a constitution in disguise?
The foreign secretary could not have been more emphatic. Speaking on Friday in
the wake of the agreement on the EU treaty in Lisbon the night before, David
Miliband declared: “The constitution is dead.” Yet his continental
counterparts have talked about “cosmetic changes” to the original 2004
constitution and the treaty being “90%” the same. Who is correct? Miliband’s
argument is based on a legalistic reading of the two documents.
The original constitution, which was rejected by the French and Dutch people
in referendums, was a clear statement of the EU’s principles and governing
arrangements. It could, if one were so inclined, be read from start to fi
nish.
The treaty agreed in Lisbon on Thursday night, however, consists of a series
of amendments to earlier treaties.
This renders it practically unreadable, as it merely states that certain words
should be added or deleted in specifi c paragraphs without reproducing
original passages. While it is thus possible to argue that it is technically
not a constitution, line-by-line analysis of the original constitution
compared with the amended treaties paints a different picture.
The impartial think tank Open Europe has found that the two texts are 96% the
same. Indeed, they both extend to the same length, about 63,000 words.
Reading them side by side, the casual reader would judge them to be the same
document, with the odd tweak here and there.
What they said around Europe about the treaty
GERMANY
‘The substance of the constitution is preserved. That is a fact’ –
Angela Merkel, chancellor
SPAIN
‘We have not let a single substantial point of the constitutional treaty go’
– Jose Zapatero, prime minister
IRELAND
‘90% of it is still there . . . these changes haven’t made any dramatic change
to the substance of what was agreed in 2004 [in the original constitution]’
– Bertie Ahern, prime minister
CZECH REPUBLIC
‘Only cosmetic changes have been made and the basic document remains the same
[as the constitution]’ – Vaclav Klaus, president
FINLAND
‘There’s nothing from the original institutional package that has been changed’
– Astrid Thors, Europe minister
DENMARK
‘All the symbolic elements are gone, and that which really matters is left’
– Anders Fogh Rasmussen, prime minister
LUXEMBOURG
‘The elements of substance of the constitutional treaty are preserved’
– Jean-Claude Juncker, prime minister
