The price of the Constitution

By: Wolfgang Münchau

 

It says a lot about the state of the European Union that EU leaders want to avoid a referendum at all cost, as a treaty referendum runs a big risk of being defeated in almost any EU countries, perhaps not in Spain or Italy. I myself do not like referendums very much either because I firmly believe indirect democracy and its ability to cope with any legal accident – including constitutional change. In particular I dislike it when the executive, a British prime minister or a French president, decide to call for referendums for political reasons.

 

However, I believe that once a referendum makes a call, even one I disagree with, it should not be overriden by parliament, and only by another referendum. Technically, you could argue that the streamlined treaty is something different from the constitution. It certainly looks different, and feels different. It is a lot less transparent, full of the ugly jargon we are so used to. The old Constitution was in effect probably the most elegant document ever produced in Brussels.

 

But the new document will contain substantively everything important the old constitution contained – minus some symbols, minus some pseudo-issues (the legal persona of the EU, which exists in any case), plus some opt-outs for the UK. You could say, technically, it  is a different document, and hence governments are free to choose their ratification procedures.

 

Ok, legally that may be so, but it smacks of democratic contempt. The streamlined treaty contains all the substantive innovations of the Constitution, which was rejected in referendums in France and the Netherlands. I marginally favour this constitution, but I am very uneasy about pushing the treaty through parliament. I also believe this may backfire. True or not, the EU already suffers from an image of an elitist organisation. Just imagine how that narrative develops once you start overriding democratic plebiscites with parliamentary ratification procedures. You basically signal that the referendum does not count if the result goes the wrong way. You signal contempt for the people.

 

In the case of France, you may argue that the election of President Sarkozy, who promised to do what he is going to do, may itself be a vindication of the parliamentary route. I am not so sure.  I cannot quite see the argument in the Netherlands, and I do not believe that the removal of the flag, the anthem, and a few other offensive items would be sufficient to justify a new ratification procedure. In the UK, this may work but only if the UK receives a number of material opt-outs – home and justice affairs – and a binding commitment the Charter of Fundamental Right does not apply under UK law. If they get what they ask for, Gordon Brown may have a case, but only just, to argue that this new treaty does not require ratification by referendum. I personally would disagree with that assessment. Tony Blair defended the referendum on the grounds that the Constitution marked a substantial shift of sovereignty to the EU, and that is still the case.

 

For Poland, and the others, I can no reason at all why they should agree not to hold a referendum unless Poland secured a substantive change – in this case a change in voting weights. President Kakzynski may not cast a veto at the summit (although he may well do that), but that does not guarantee that the Constitution will be ratified. Relations between Poland and Germany have hit the lowest point I can remember – and my memories go back into the Communist era. So I am sure the Poles will turn this into a referendum on Germany.

 

So even if the summit agrees a deal, one should hold off the celebrations until ratification is over. I would put the chances of a deal at marginally above 50%, and chances of ratification, once a deal has been reached, at about the same level. The chance of a bad aftertaste, however, is approaching 100%.

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