Discussion by the Federal Union committee, 10 May 2010
The committee of Federal Union discussed the options for future European policy as it might be pursued by either a Liberal Democrat/Labour coalition or a partnership of some sort between the Liberal Democrats and the Conservatives.
A government of Labour and the Liberal Democrats was unlikely to effect much change in Britain’s European policy. Britain would remain outside the euro, but would probably not seek to use the provision in the Lisbon treaty that would permit it to withdraw from Europol in order to evade the jurisdiction of the ECJ.
A Conservative-led government would attempt to make changes, but these were likely to be as much rhetorical as real. The pledge by David Cameron to seek withdrawal from EU policies in areas of social and employment policy, the Charter of Fundamental Rights and criminal justice was unlikely to be successful. He would not command a majority in the House of Commons to support his desired outcome from these negotiations, a fact which would be well-known to his negotiating partners elsewhere in Europe and which would make them in turn less likely to make the concessions that David Cameron sought.
Of the three domestic bills that the Conservatives proposed, the bill requiring any future government that wanted to use passerelle clause in the Lisbon treaty to obtain consent through primary legislation was really a change in British parliamentary practice and not strictly a matter of European policy at all. It was unlikely to be controversial.
The committee did not support the idea of a referendum bill that requires there to be a referendum to approve any future European treaties. Partly this was because of a belief that referendums do not necessarily deliver what they promise, namely public deliberation on the most important matters of policy, because the public decision is actually swayed by many other, often irrelevant or transient factors. A further reason lies in the internal illogic of the proposal itself.
The Conservative proposal relates to treaties that “hand over powers to Brussels”, but not to future enlargements. However, the reality is that sovereignty is not passed to Brussels, but shared with the other member states, in which case the decision to share sovereignty with a new member state is just as profound as the decision to share sovereignty over a new policy area. The Conservatives profess to be in favour of enlargement, which is why their referendum proposal does not relate to future accession. The proposed referendum bill is not founded in any coherent view of sovereignty, neither popular nor national, and is better understood as a ruse rather than as a proposal.
Of the third domestic bill, a so-called sovereignty bill, this is even more true. The Conservatives envisage a bill that will enshrine in law the statement that British sovereignty resides in parliament in Westminster. Comparison is drawn with Germany, where the federal constitutional court reserves the right to rule on the compatibility of European treaties with the German Basic Law. But the passage of a bill through parliament stating a fact does not make that fact more or less true: if it is a fact now, the bill changes nothing; if not, the same.
The sovereignty bill is, in effect, a non-solution to a non-problem. The impression that it leaves, though, is that of the non-solution: more strident voices might demand something stronger in future.
A report published by the Institute for Government in the weeks before the election deplored the tendency to use legislation for the purposes of “sending a message” rather than for the purposes of good governance. Key aspects of Conservative European policy appear to deserve this criticism.
These notes are based on the discussion by the Federal Union committee on 10 May. They have not yet been approved by the committee itself.