Speaking to Policy Exchange today in a speech entitled: "The new EU treaty: the case for a referendum" Shadow Foreign Secretary, William Hague said:
"Yesterday the draft text of the new EU Treaty was published. This Treaty would fundamentally change the European Union and Britain's place in it. Although to call it a Treaty is contentious in some circles: the new trade minister Digby, Lord Jones has said 'this is a con to call this a treaty - it's not. It's exactly the same - it's a Constitution'. I think he is right.
It is our belief that this Treaty should not be ratified without the British people's agreement in a referendum for two reasons. First, because the referendum question goes to the heart of the issue of trust in politics. And, secondly, because such a fundamental change to powers and role of nation states such as ours vis-à-vis the European Union should require the British people's explicit consent in a national vote.
So I will set out the arguments for a referendum, examine in detail the Government's case against it and explain what this Treaty means for Britain.
At the heart of the argument is a simple syllogism: one, that at the last election every major party promised a referendum on the EU Constitution. Two, that this new Treaty is the Constitution in all but name so, three, that we should have that promised referendum.
Let me remind you what the Labour Party's election manifesto said: 'We will put it - the EU Constitution - to the British people in a referendum and campaign whole-heartedly for a "Yes" vote'. For the avoidance of any doubt, the last Prime Minister said: 'what you can't do is have a situation where you get a rejection of the treaty and then you just bring it back with a few amendments and say we will have another go'.
Those promises could not be clearer. And they touch directly on a crucial issue in today's politics - this issue of trust. After ten years of New Labour's style of Government trust in politics is at an all time low, not least because under Labour ministers' promises and actions can seem wholly unrelated.
So Gordon Brown has been absolutely right to emphasise the importance of sticking to manifesto promises. As he told the BBC the weekend before he became Prime Minister, 'the manifesto is what we put to the public. We've got to honour that manifesto. That is an issue of trust for me with the electorate'.
There can be no question, then, that if this new Treaty is, in fact, effectively the EU Constitution by another name that a failure to put it to a referendum would be a fundamental breach of trust between the Government and voters.
European leaders' views
So is this new Treaty in fact a relabelled Constitution? If we look at what political leaders are saying elsewhere in Europe it turns out that the only matter of dispute is whether, as the Irish Prime Minister says, ninety per cent of it is still there, or, as the Spanish foreign minister claimed only yesterday, it is ninety eight per cent the same.
In fact, across Europe there is near unanimity that the new EU Treaty is simply the substance of the EU Constitution repackaged. I will not weary you by reading out a long list of quotations from the various EU leaders who have said exactly that but there are three who have summed up what has happened succinctly. The Danish Prime Minister put it like this: 'all the symbolic elements are gone, and that which really matters - the core - is left'. Chancellor Merkel has been quite clear that, I quote, 'the fundamentals of the Constitution have been maintained in large part'. And Valéry Giscard d'Estaing, who, as you know, oversaw the drafting of the original EU Constitution, is delighted with what has come out of last month's summit. He was able to tell the European Parliament that 'the changes compared to the 2004 IGC are few and far between...and more cosmetic than real'.
But the British Government's pretence that the new Treaty would be substantially different from the rejected Constitution has been greatly helped by the IGC mandate's enigmatic nature. It is so unclear and difficult to understand that the Belgian foreign minister has complained that the new treaty seems to have the goal 'of being as illegible as possible'.
And this is no accident. It is worth hearing what Giuliano Amato, former Italian Prime Minister, current Italian interior minister and vice-president of the body that drafted the original Constitution, said on this a couple of weeks ago. He said that the people who drafted this new Treaty
'decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception. Where they got this perception from is a mystery to me. In order to make our citizens happy, to produce a document that they will never understand! But, there is some truth [in it]. Because if this is the kind of document that the IGC will produce, any Prime Minister - imagine the UK Prime Minister - can go to the Commons and say "look, you see, it's absolutely unreadable, it's the typical Brussels treaty, nothing new, no need for a referendum". Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new.'
This view has been yet more authoritatively supported by Valéry Giscard d'Estaing, who posed the question last week 'Why not have a single text?' And his answer? 'The only reason is that this would look too much like the constitutional treaty', he said. 'Making cosmetic changes would make the text easier to swallow'.
The mandate's obscurity is a deliberate disguise.
Gordon Brown and his colleagues have really been out on a limb in their pretence that this new Treaty is anything other than the EU Constitution by another name. The German, Spanish, Danish and Finnish Governments, the European Commission and more, all agree that what has happened is little more than a repackaging of the original.
Fortunately, our new Prime Minister is not quite the same piece of work as Tony Blair, who was able to repeat any old nonsense as if it were gospel truth. The Government has been unable to maintain consistently the pretence that this is not the EU Constitution. Last week Gordon Brown slipped out that he and the Irish Prime Minister had been talking about moving the EU Constitution forward, as the No 10 website helpfully records. And on Thursday the deputy leader of the Labour party, considerably more comprehensible and quotable than her predecessor, admitted that 'a lot of the substance [of the EU Constitution] remains unchanged'.
How is the Constitution brought back?
If even Gordon Brown and his deputy cannot deny that this is the Constitution in all but name I think we are home and dry on that argument. But it is important to understand not only that fact but how it has been accomplished.
The June summit set out the framework for the new Treaty, the draft IGC mandate in the jargon. That framework was unusually precise and defined. As the first sentence of the agreed document states, 'the mandate will provide the exclusive basis and framework for the work of the IGC'. So the new Treaty - the end product - is very unlikely to differ much from what was agreed at the summit. The Government has given itself little room for manoeuvre.
And what has been agreed is sweeping in its breadth. If you will allow me to go into the detail, three key paragraphs in the mandate - paragraphs one, four and eighteen - bring back the whole of the EU Constitution, unless specified otherwise. As paragraph four sets out, 'the innovations resulting from the 2004 IGC - in other words everything in the Constitution - 'will be integrated into the TEU and the Treaty on the Functioning of the Union', - in other words will come into force - 'as specified in this mandate. Modifications to these innovations introduced as a result of the consultations held with the Member States over the past 6 months are clearly indicated below'. So unless it says otherwise the whole of the Constitution is brought back.
Paragraph eighteen helpfully lists various areas the new Treaty affects: The parts of the old EU Constitution will, and I quote, 'be inserted into the Treaty ... They concern the categories and areas of competences, the scope of qualified majority voting and of codecision, … provisions inter alia on the Area of freedom, security and justice, the solidarity clause, the improvements to the governance of the euro, horizontal provisions such as the social clause, specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outermost regions, administrative cooperation, financial provisions (own resources, multiannual financial framework, new budgetary procedure).'
After that list no one should be in any doubt of the importance or reach of this Treaty. Yet this Government attempt to wriggle out of their commitment to a referendum by focussing on one sentence from the IGC mandate, which says that 'the constitutional concept, which consisted in repealing all existing Treaties and replacing them with a single text called "Constitution" is abandoned'. Therefore, they claim, the new Treaty is not the Constitution and no referendum is needed after all.
But, as we have seen, this simple relabelling has little, if any effect on the substance. Indeed, the German presidency has been quite explicit that their aim was to bring back the Constitution with just enough presentational tweaks to allow some governments to avoid a little local difficulty. In their March questionnaire they asked 'how do you assess in that case the proposal made by some Member States to use different terminology without changing the legal substance for example with regard to the title of the treaty, the denomination of EU legal acts and the Union's Minister for Foreign Affairs?' And their presidency report of 14th June made plain that the deal was that the symbols and terminology could change if the substance stayed the same.
What the Treaty will do
So the heart of the Government's argument is a near meaningless fig leaf. It is clear, then, that this is the Constitution by another name. Its effects on the EU and our relationship to it are wide-ranging and profound.
Rather than countries taking their turn to chair the EU's business a new EU President would set the EU's agenda, as well as having a rather undefined role representing Europe to the world. There would be an EU foreign minister in all but name, with his own diplomatic service. Unlike the current High Representative, who reports to the foreign ministers' council meetings, he would preside over it. The EU would for the first time have a single legal personality, a prerequisite for statehood that would allow the EU to sign treaties in its own right. Criminal justice agreements would no longer be strictly intergovernmental but would be treated like ordinary community matters - so the Commission would have the main right to propose laws, the European Parliament would have the right of co-decision and, most importantly, the European Court of Justice would gain full jurisdiction over present and future agreements. Additionally, because of the doctrine of implied external competence, we could now see the Commission taking charge of and the Court of Justice ruling on our extradition agreements with third countries, such as the United States or Algeria.
Our national veto will be abolished in sixty areas. Some are relatively trivial but others are certainly not, such as on the EU external action service, as the EU's diplomatic corps would be known, or professional qualifications or intellectual property. The EU's role is also subtly widened in areas such as employment and legal migration.
And there is a ratchet clause that would allow any veto outside defence to be abolished and the Brussels institutions to strengthen their role without changing the Treaties. Of all the clauses buried like legal landmines in that agreement this is potentially one of the most significant. Unanimity is required, but rather than having to pass a bill through Parliament the Government need only notify it.
We can imagine how a Government like ours, that seems to have no principled objection to ever deeper integration but is only limited by popular opposition, would use a shortcut like that. Rather than the need to put a bill through Parliament amending the 1972 European Communities Act, in which a new Treaty is subject to many days of debate, vetoes could be abolished after a single vote on motion after only three hours of discussion. This is an innovation of a different order from any previous Treaty.
Indeed, the European Parliament, despite Conservative MEPs' opposition, has already voted to use the new Treaty to press for more powers for the EU as soon as it is ratified.
It is also important to understand that this Treaty's full impact lies not merely in the shifts of power that it would create immediately but in the processes it would set in train. It is not a final settlement, nor is it meant to be one. Instead it is a basis for evolution.
In particular, the posts of president of the European Council and the EU foreign minister, with his diplomatic service, are intended to grow in power and weight. In the eighteenth century the first lord of the treasury grew from being simply the King's leading minister to hold the pre-eminent political office. Likewise, those who support ever closer political union hope that the foreign minister, who would gain for the first time the right to speak for EU Member States at the UN Security Council, will in time not merely supplement Member States' voices in foreign affairs, but replace them.
This new Treaty, then, would mean the same fundamental restructuring of the EU and shift of power from the Member States to the EU as the Constitution.
The Government's rejoinder is that none of this really matters because national control has been kept in four key areas: the so-called 'red lines'. Given that they were only made public a few days before the summit and that they are essentially the same as the 'red lines' that were supposedly secured the first time the Constitution came round it is pretty plain that these were only ever a ploy to distract attention from what had been agreed elsewhere: not red lines but red herrings. They in no way covered a range of crucial areas: the new EU president, the single legal personality, the loss of vetoes, the widening of the EU's powers elsewhere or the ratchet clause. They are not a very convincing diversion.
Thinning red lines
Nonetheless, they do cover areas of some importance, so it is extraordinary that these 'red lines' - the Government's chosen battleground - under examination show such serious holes.
The foreign policy safeguard was the quickest to go. It turned out that the much trumpeted clause protecting our power over foreign policy was merely a declaration, and so not legally binding. According to reports, the Commons European Scrutiny Committee's legal adviser believes the safeguard 'may be meaningless'.
The next red line was on the Charter of Fundamental Rights, from which the Government claim to have won an opt-out. But the European Court of Justice's advocate-general Tizzano has questioned whether any kind of opt-out from the Charter can work. Again, the Commons Scrutiny Committee's legal adviser fears there may be dangerous gaps through which the Court can impose the Charter, given that cross-border cases will inevitably come up and that the Court is bound by Treaty to give EU law the same interpretation no matter what country a case started off in. These serious doubts must be hardened in light of what the Swedish Prime Minister told the Riksdag yesterday: 'It should be stressed', he said, 'that the UK was given a clarification, not an opt-out' And there is the curious problem that most of the Charter, including criminal justice and asylum rights, has weaker protection from the Court of Justice's interference than other parts - a problem to which ministers currently have no answer. Perhaps that is why there was a significant downgrading of this red line in yesterday's White Paper. Just before the summit Tony Blair put it thus: 'we will not accept a treaty that allows the charter of fundamental rights to change UK law in any way'. But in the White Paper it merely comprises the 'protection of the UK's existing labour and social legislation'.
Then there is the safeguard over our criminal justice system and common law, where the Government have made extraordinary concessions. For years they insisted that this area had to remain intergovernmental. But now, if I may be technical, this area will be fundamentally restructured as the intergovernmental third pillar of the EU is collapsed into the Community first pillar, even though both the European and Home select committees, the latter under John Denham, warned against this. As Michael Connarty, the Labour chairman of the European Scrutiny Committee, said on the eve of the summit: 'justice and home affairs, as recommended by the Home Affairs Committee, should not be transferred from the third to the first pillar … that is fundamental', he said.
So this would mean that future and current criminal justice legislation, such as the European Arrest Warrant and the European Evidence Warrant, now come under the European Court of Justice's jurisdiction and the Commission now has the main right to propose new laws.
The Government argues that none of this matters because in future we will have an opt-in on new laws. Quite aside from the fact this takes no account of the Court of Justice's new powers, this is a weak defence. You might like the look of a proposal to start with, but once we opt in we could not opt out: once you've bought the ticket you're along for the ride and there are twenty six other hands on the steering wheel. The current proposal on standards in criminal procedure is a case in point. The Government was enthusiastic at first but after others amended it they became concerned that it would damage our criminal justice system and have used our veto to block it. Under the new Treaty that veto would no longer exist. They maintain that we would have a so-called 'emergency brake' instead, but there are good reasons why this is no substitute. When this provision was first proposed the Government opposed it on the sound ground that 'the Member State which had pulled the emergency brake might well feel itself under some political pressure' as the foreign office minister of the time put it.
And for good measure, ministers now confidentially confess that the fourth red line was only ever an Aunt Sally. As the BBC's European editor put it recently on his blog: 'the government had the good grace to privately admit it was a bit of a con and "purely presentational"'.
So as each week passes and the text of the summit agreement is examined the supposed safeguards on foreign policy, the Charter and home affairs reveal yet further weaknesses.
A step back on competition
The new Treaty is also a serious step back for Europe in one particular respect. Competition has long been the jewel in the EU's crown. Ensuring that competition is not distorted has been a key task for the European Commission and Court of Justice since the Treaty of Rome, and to give credit where it is due they have used their powers to great effect, breaking down protectionist barriers inside Europe. Free competition is an essential part of the Common Market - the main reason why Britain joined what is now the EU in the first place. But now the objective of competition that is not distorted is out of the Treaties, and it is false to claim that a protocol provides fool-proof protection: as legal experts have made clear, what matters most to the Court of Justice are the Treaty objectives.
What it adds up to
So it is clear that this new Treaty will produce effectively the same wide and fundamental changes to the EU that the rejected Constitution intended. It is another thing to understand what this will mean in practice. It will depend, of course, on what EU institutions choose to make of their new powers and it will depend on what the umpire in all of this - the European Court of Justice - makes of the new rules, which deliberately avoid clarity. And the trend is clear. The European Court of Justice has almost always pushed the rules as far as they can in favour of deeper integration and has not been averse in effect to making new EU law in the process. Just two years ago the Court discovered that the Commission could force Member States to create new criminal offences for ordinary Community legislation which had been agreed by qualified majority voting, in this instance on the environment. As the President of the European Commission has rightly said, lawyers will have a beautiful future with this document.
But broad outlines are clear. First, as I have discussed, a massive boost to the European Court of Justice's powers. It is likely that over time the Charter will be used to effect what will amount to judicial legislation from the Court. Secondly, across what we currently call home affairs - asylum, immigration and criminal justice - legislation and policy will increasingly be determined at an EU level. Our right to conclude agreements in these areas with countries outside the EU is set to be progressively restricted. We could also see the beginnings of an EU FBI now that Eurojust has won the right to initiate investigations in its own right. Thirdly, Britain's role in foreign policy will gradually shrink before the EU's growing power in this area. No one in Brussels even pretends that the new High Representative post is anything other than the Constitution's EU foreign minister with a more acceptable title. And running the EU's agenda will be taken out of Member States' hands and given to a powerful new EU president, over whose appointment we will have no veto.
As the President of the Commission has said, with this new Treaty the EU would acquire 'the dimension of empire'.
With power transferred from Britain to Brussels in spades and the EU fundamentally changed there is no question but that the Constitution by another name merits a referendum. And you need not take that simply from me. After the Constitution was rejected the first time round the then foreign secretary, whom the new Prime Minister has now appointed Justice Secretary and first secretary of state, set out a simple test for any new Treaty. If the new Treaty had the president and the foreign minister then, Jack Straw said, it would in essence be the Constitution. The new Treaty has the president and foreign minister. It is in essence the Constitution. The remaining question is where the promised referendum is.
Labour's incoherent counter-arguments
And the Labour Government have no coherent or logical argument against it. They have held eight different positions on the Constitution in the past seven years, had to drop each of them as they became patently untenable and have learnt nothing from the experience.
Let us compare their arguments against a referendum in March 2004 and their arguments now. Then Labour ministers said we did not need a referendum because all their red lines had been met. They said the Constitution was an ordinary amending Treaty that did not fundamentally change the EU. A month later they announced that there would be a referendum.
Now they say that unlike the EU Constitution, which would have fundamentally changed the EU, this Treaty does not. They say Britain's sovereignty is safeguarded because all their red lines have been met. And although the red lines that have supposedly been met this year are identical to the red lines that were supposedly met in 2004, meeting the red lines this time is a major change from what was agreed before.
All of those statements cannot be true. They are mutually contradictory. After all this time the Labour Government are still unable to put together a coherent and logical argument against a referendum. Last time they claimed that it was all just a tidying up exercise. This time they say it is just a tidying up exercise. Even the spin is the same. So much for change.
And that is why I am confident we can win the argument for a referendum in the country, in the media and in Parliament: because our case stands up to scrutiny and theirs does not. The more closely their position is examined, the clearer it is that it is not about principle but short-term political expediency.
A wasted opportunity
The tragedy of this situation is that it is completely unnecessary. Had there been a British Government prepared to show a modicum of leadership and let our partners understand that the Constitution's rejection was not a problem we would not now be wasting our time navel-gazing about yet another push for more powers for EU institutions but would be able to concentrate on the issues where the EU can really add value: global competitiveness, global warming and global poverty.
The federalists had seen their great achievement - a Constitution for Europe - rejected by the voters. It was clear that the goal of ever closer political union was fundamentally out of tune with what the peoples of Europe wanted. This was the time to push for the only model of European Union that can work for all of Europe in the long term - a flexible, open Europe, which lets those countries who want deeper integration go ahead but which allows those countries who find that EU competences are frustrating national goals to take some powers back. It was a time to look again at some failing policies.
Today's Europe is also ready for the first time to listen to that vision. Enlargement has profoundly changed the Union's dynamics. Countries like the Czech Republic and Poland do not want ever closer political union. They are calling for a different direction. In the Netherlands political leaders have reflected deeply on the referendum result and the relationship between the European Union and the nation state.
Yet instead of taking the lead the Government buried its head in the sand. The former Foreign Secretary found the prospect of the summit 'nerve-wracking', but this should have been the time for a confident British government to give a lead to those who question the need for a new Treaty at all.
From the Prime Minister downwards they let the debate move on while they privately hoped the whole business would just go away. But of course it did not. Other voices filled the silence. And they are those who have invested so much emotional and political capital in the Constitution and the vision of Europe it represents that they cannot bear to let it go. So the British Government is left trying to rush through a Treaty they know is profoundly objectionable to the British people, as all polls show, as quickly and quietly as they can, desperately hoping that voters will not mind that they are in flagrant breach of their election promises.
A question of trust
Gordon Brown has talked a lot about accountability since he became Prime Minister. Now is the time to see if he means it. Because only by a referendum can the British people hold anyone to account over this Treaty. Just a week before the summit ministers were still denying, to the astonishment of European observers, that no negotiations were going on at all. Both of this country's representatives at the summit - Tony Blair and Margaret Beckett - have now left the Government. The intergovernmental conference is due to finish in October, so there will be minimal opportunity for Parliament and public to discuss the Treaty or influence the negotiations' outcome before the deal is done. The Government have absolutely no democratic mandate to agree to this Treaty without the British people's express permission - the 2005 Labour Party manifesto did not say that the Government would bring in ninety per cent of the EU Constitution under another guise if another country rejected it before the British people had had the chance to have their say. Yet, in an act of extraordinary cynicism, Gordon Brown's Government is proposing to do exactly that.
We have heard a lot this month about trust and consultation. But how can the British people trust Gordon Brown if he begins his time as Prime Minister with a flagrant breach of a solemn manifesto promise? How can they trust him if he won't trust them to let them have their say?
By Jack Straw's test this is the Constitution. Digby Jones says it's the Constitution. And now even Gordon Brown has admitted that this is the EU Constitution.
What does Gordon Brown think people will make of his talk of consultation if he won't consult them on a question of fundamental importance to this country's future, on which the overwhelming majority of the British people want to have their promised say?
The answer is simple: trust the people and let them decide."