Prof. Dr. Melanie Sully

Brexit. "Großbritannien, Europa und das Referendum" Prof Dr Melanie Sully

This email address is being protected from spambots. You need JavaScript enabled to view it. Extracts from “Britain, Europe and the Referendum” in Europäische Rundschau 2012/4

 

 

Prof Dr Melanie Sully This email address is being protected from spambots. You need JavaScript enabled to view it.

Here an English version of the article which appeared in German

Britain, Europe and the Referendum Question

 

Melanie Sully

 

The relations between Britain and “continental” Europe have been awkward to say the least. Often assuming the whole integration project was doomed to failure, Britain signed up at every juncture when it was almost too late. Its recalcitrant attitude has been the cause for much frustration by its partners.

For most European countries after the Second World War it was clear that there had to be fundamental changes in the structure and decision-making process of the continent and nation states. This was not clear for London. On the contrary Great Britain still suffered under the illusion of greatness and the clue is in the word that comes before Britain. But the twentieth century saw a steady erosion of “greatness” paradoxically stemming from victories in war which were an economic drain. Britain could claim a moral victory in its isolated stance against Nazi tyranny, isolated until the Americans and others appeared on the scene. With Allied help Britain won the war and promptly ditched the victory prime minister Winston Churchill. The Labour leader Clement Attlee seemed more in tune with the longing for peace, full employment and a social welfare state, all more attractive than slumping back to the depression years of the 1930s.

The original founders of the European project had no illusions of victorious grandeur. They had been successively subdued, conquered, occupied or defeated and as such had everything to gain from giving up some degree of sovereignty. This was not the case in Britain and added to that there was the Commonwealth. Geographically disperse, multi-cultural and multi-national, it was nevertheless an emotional symbol during the transition from empire and one which had greater attractions than Europe. Unlike the Europeans the peoples of the Commonwealth spoke a common language. Many in Britain had relatives who had emigrated to large countries like Canada and a continent like Australia. In comparison, Europe seemed a small region, an insignificant spot on the globe. For many in London so-called Euro-centrism was the negation of internationalism. For those in Europe on the other hand Britain was seen as narrowly nationalistic.

At the beginning, the European integration project emerged strongly influenced by conservatives and Christian democracy. The post-war Labour government in London viewed mergers in major industries of coal and iron and steel with some suspicion. After all Labour had just passed a comprehensive nationalisation programme putting such industries under state control. The idea of surrendering oversight to some vague European High Commission in the spirit of ill-defined integration was not interesting. So Britain dithered on Europe until finally joining the European Economic Community (EEC) in 1973 under a Conservative government in a rational act of economic realism without great empathy or euphoria[i].

But the British political scene remained complicated with often an unholy alliance between those on the far right of the Conservatives and those on the left of the Labour party side by side against “Europe”.

 

Referendum 1975

Britain was a member of the EEC for two years before a referendum was held on whether it should stay in. Labour, when in opposition, had promised to renegotiate the terms of membership if it came to power and put the package to the people in a consultative referendum. An election pledge in 1974  was made to hold a referendum on whether to accept new terms or leave the EEC. The party said the decision of the people although formally consultative, would be binding on any Labour government.

The subsequent Labour government announced it would renegotiate terms to get improvements eg on transition agreements for the entry of New Zealand butter to the UK which was cheaper than European imports. Following renegotiation on such points Prime Minister Harold Wilson held a post-legislative referendum in 1975 (the House of Commons had already accepted the new terms) on “do you think the UK should stay in the European Community (Common Market)?”.  Around two-thirds voted to stay in Europe with a 65 per cent turnout. Since the Labour cabinet was split, ministers campaigned on different sides; of the main parties Labour was more internally divided. The opponents of membership stressed the loss of parliamentary sovereignty which possibly seemed too abstract for voters concerned with the price of butter. Many believed that withdrawal from the EC would mean even higher prices and things would get worse. Britain was already in the EC and voters often tend to endorse the status quo when in doubt on referenda issues.

This was the first UK nationwide referendum and was the only one until the 2011 referendum on the election system which also went against radical change.

 

Referendum Politics

However that was not the end of Britain’s awkward relationship and it did not silence advocates of leaving Europe or those who wanted a second referendum. Since the 1970s there have been many turbulent debates in the House of Commons on the questions of Europe. From the heady days of Margaret Thatcher (“I want my money back”) through to the 1990s under John Major there were renewed demands for referenda in the light of the Maastricht Treaty and subsequent increasing integration. There was even a single-issue Referendum Party funded by the billionaire, Sir James Goldsmith, with limited success.

The Labour manifesto that brought Blair to power in 1997 outlined a position on the single European currency stating that first the cabinet would have to agree and then parliament “and finally the people would have to say “Yes” in a referendum”. In opposition the Conservatives now criticised Labour for failing to hold a referendum on the Lisbon Treaty. Successive governments have balked at the idea of holding a referendum and as many Opposition parties have criticised them for failing to hold one.

Many feel that the failure of holding another referendum on Europe, considering the degree of integration that has developed, has built up increased frustration. Maybe it could have been won for the pro-Europe camp and the perennial debate nipped in the bud. Perhaps it would have been better to get a question out the way which continues even today to dog the Cameron administration composed of the European friendly Liberal Democrats and the more Euro-sceptics within the Conservative Party but the unpredictability of referenda as shown in Denmark, Ireland and elsewhere made this a high risk option[ii]. So it went on and Governments dodged repeated calls to hold referenda on the Amsterdam and Nice Treaties.

Unlike countries with a written constitution, there is no clear concept in Britain of what might amount to a  fundamental constitutional change which could warrant a referendum. The initiation of such an act is left to the government of the day. The House of Lords Constitutional Committee examined the case for and against referenda on a number of issues in a major report (2009/10)[iii]. The Committee concluded that referenda are appropriate, despite some arguments against holding them, on “fundamental constitutional issues”. These it chose to define as eg a move to abolish the monarchy, if any of the nations of the United Kingdom were to secede, abolition of either House of parliament, a decision on adopting a written constitution or to change the UK’s system of currency and last but not least, a decision to leave the European Union. Such a referendum would not be initiated by citizens in the UK (this possibility exists eg in one Commonwealth country, New Zealand) since the use and timing remains in the hands of the government of the day. The report went on to note that this can often lead to inconsistency and that at heart the referendum remains “a tactical device rather than a matter of high constitutional principle”. Experts giving evidence to the committee discussed issues surrounding referendums on Britain’s relations with the European Union. Some argued that if the 1975 referendum is seen as a precedent, more recent transfers of sovereign powers should also have been put to the people. Others thought that devolution to Scotland and Wales had created a new situation. Professor Bogdanor, constitutional lawyer, stated that “there does seem a strong case in logic----that there should be a referendum before major legislative powers are transferred upwards to the EU as well as downwards to devolved bodies”. In that case, he continued, referendums would have been necessary on the Single European Act and Maastricht but not on Amsterdam, Nice or Lisbon Treaties since they did not in his opinion involve major transfers of powers. Experts giving evidence to the Committee warned against holding a referendum on every EU treaty since in some cases the changes may be small.

 

The Coalition and the Referendum Lock

In addition to the experts and lawyers, the parties started their own definitions of when a referendum might come into play.

The Conservative manifesto for the 2010 general election made the following pledge to:

“change the law so that never again would a government be able to agree to a Treaty that hands over areas of power from Britain to the EU without a referendum. That would include any attempt to scrap the pound for the euro;

- change the law so that any use of "ratchet clauses" (passerelle) would require full approval by Parliament, and where they amount to handing over an area of power, e.g. abolishing vetoes over foreign policy, a referendum would be required”.

 

The British people, Cameron said, “must be in charge of their future in Europe”. This would resemble the position in Ireland, where the Supreme Court ruled in 1987 that a major transfer of power to the EU had to be approved by referendum. The Liberal election manifesto of 2010 promised a referendum if there was a fundamental change in the relationship between the EU and the UK, “Liberal Democrats remain committed to an in/out referendum the next time there is fundamental change”.

In The Coalition: our programme for government of May 2010, the Conservatives and Liberal Democrats stated that “Britain should play a leading role in an enlarged European Union, but that no further powers should be transferred to Brussels without a referendum”. The programme also included a so-called “referendum lock” to amend the 1972 European Communities Act so that “any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum”. Additionally the coalition gave assurances that it would not join or prepare to join the Euro.

The coalition passed its referendum lock with The European Union Act 2011 (July) which gives the British people a say on the transfer of powers and competencies to the EU eg on joining the Euro, joining a common EU defence, extension of competence in relation to foreign and security policy or giving up national border controls.

The Act defines a transfer of power from the UK to the EU as giving new power to EU bodies to impose sanctions or obligations on the UK or giving up a veto in a significant area. The referendum would be invoked only on issues where the Government had given support for significant treaty changes but not where it had rejected a particular change.

The Act also increases parliament’s control over all proposals for treaty change that the government of the day supports and the use of certain passerelles (defined and listed in the Act) in the EU treaties. The Lisbon Treaty introduced new Treaty “revision procedures and so-called passerelle allowing the Treaty’s provisions in the main areas of Union policy to be changed by a unanimous decision of the European Council and the approval of Member States The passerelle allows for changes to be made to EU voting rules, replacing unanimity by qualified majority voting without a formal Treaty amendment. Decisions made using these procedures might require a referendum or an Act of Parliament before they can be approved or adopted in the UK”. [iv]

Ministers will decide if any treaty change transfers power or competence to the EU and make a “reasoned statement to Parliament explaining their decision. As with all ministerial decisions, this would be open to legal challenges through judicial review”.[v] Any referendum can only be held once parliament has decided on the details eg the date and the formulation of the question to be put. Answering questions whether there was likely to be a flood of costly referenda the government stated that it did not intend anyway to transfer competences or powers to Brussels and did not envisage big treaty changes, in the foreseeable future.

Bagehot writing in the Economist remarked that the referendum lock would not make the British public love the EU, “that is a lost cause” but it could “lead to a multi-speed EU with the British in the slow lane” (11.11. 2010) adding “future British governments would be mad to call a referendum on an EU treaty”. Experts generally see many quarrels about when and if the Lock would come into force as the explanatory notes to the law leave it open to several interpretations.

However a referendum would not be necessary if there are treaty changes or passerelle applicable to countries other than the UK. No referendum is foreseen on countries wishing to join the EU since this does not involve transfer of competence from the UK to the EU although some argue that by implication Britain loses power and influence by another member sitting at the table with a voice. Further the Lock does not open the door for a referendum on the Lisbon Treaty which has already been ratified and entered into force. And it does not pave the way for a referendum on EU membership itself.

The European Stability Mechanism (ESM) does not apply to non-Euro states and so does not impose any extra obligations on the UK. As such a referendum was not considered. Foreign Minister William Hague made a statement to this effect in the House of Commons on 13.10. 2011. Similarly the fiscal pact was not considered for a referendum lock case since the UK is not in the Eurozone. So far the referendum lock has not been tested and doubtless if a case arose it would be the subject of intense constitutional and political controversy.

 

In or Out of Europe

Towards the end of 2011 several expert papers and opinions circulated surmising what would happen if Britain left the EU or started to renegotiate a better deal on its terms of membership. In October 2011 the International Affairs and Defence Section of the House of Commons produced a research paper on the practical mechanics and hurdles involved on leaving the European Union referring to Article  50 of the Treaty on European Union as amended by the Lisbon Treaty and voluntary withdrawal from the Union according to a State’s own constitutional requirements. The paper made it clear that there would be no going back to the position before membership for Britain which has been a member for around 40 years in the European integration process. Too much was in UK law and rights have been acquired which would need to be respected. In any case the transition to any withdrawal would be long and complicated. Tricky areas to be resolved would include the Common Agricultural and Fisheries policies, trade and free movement of workers in the EU. To begin with a State wishing to withdraw must inform the European Council which sets out negotiating guidelines leading to a new framework with the EU. The Council of Ministers after consent from the European Parliament concludes the agreement with a qualified majority vote (about two thirds). The State concerned does not participate in discussions at this level. The paper concluded it would be a complex task to decide which parts of UK law derived from the EU whether it be directly from the Treaty or from different Regulations or Decisions that have been adopted or from Directives indirectly taken. Which parts to repeal or preserve would present a monumental legal challenge. Even in the 1970s opponents of leaving the EEC pointed out that it would be a legalistic nightmare.

A further Commons research paper later in the year looked an alternative such as repatriation of EU powers to Member States[vi] possible with Lisbon Treaty. The repatriation idea was set out in the Conservative election manifesto of 2010. Especially in the areas of criminal justice, social and employment legislation the party is looking for repatriation. Debates in the Lords though indicated that such a repatriation would be extremely complex and meet with opposition from other member states especially Germany. The idea of repatriation or restoring tasks to the member states comes from the 2001 Laeken Declaration on the Future of the European Union. A review of competences and powers between Brussels and London would have the aim of seeing which areas could be candidates for repatriation. Legal experts differ on the chances for clawing back competencies from Brussels but the idea is useful for the Conservatives seeking to pacify Eurosceptics. The Commons research paper concluded that in all likelihood repatriation would need treaty changes, an intergovernmental conference and ratification in the member states. An Open Europe report on social policy stated that “should the UK government succeed in repatriating powers, EU-derived laws would not magically disappear overnight, nor would the benefits and costs arising from them”.

A House of Commons research paper of July 2012, “The UK and Europe: time for a new relationship?” further reflected on the options open to the British government: “The eurozone crisis and EU moves to closer fiscal, as well as economic and political union, have given rise to renewed questioning of the UK’s relationship with the EU. Some opinion polls indicate majority public support for a referendum on whether the UK should stay in or leave the EU. In Parliament an in/out referendum has been one element of a wider debate about the kind of EU the UK would like to belong to. The Government has not ruled out a referendum on EU membership but believes the time is not right for one”. It continued to note the rather “detached” relationship of Britain with the EU especially clear after the December 2011 isolation on the fiscal pact (noting the UK does not participate in the euro and has special arrangements in justice, home affairs, Schengen etc).

These papers underline the serious considerations being given to Britain’s relationship with Europe examining alternative options to the status quo, risks and benefits.

 

Cameron and a Referendum

Towards the end of 2011, there were signs of rumbling discontent on the Conservative backbench with a revolt on Europe the scale of which surprised political observers. The dangerous fall-out from such a revolt on Europe cannot be lost on Cameron. A motion was proposed in October 2011 by a Conservative calling for a national referendum on whether the UK should remain in on the current terms, leave the EU or renegotiate terms for a new relationship based on trade and cooperation. The motion was defeated but 111 voted for it including around 80 Conservatives most of whom favoured withdrawal from the EU. A motion such as this passed by parliament does not compel the government to hold a referendum but would exert strong political pressure.[vii] Many rebels had defied a three line whip which can come with unwritten penalties such as strong expectations of resignation of certain posts or lack of future promotion. The sheer numbers of those prepared to take such a step must have been worrying for Cameron. A prime minister or party leader ignores backbench feeling at their own risk as Margaret Thatcher found out to her cost. Although she never lost an election her loss of contact with the backbenchers contributed considerably to her demise as leader. Any government in the British House of Commons has a large payroll vote with around 100 or so classified as members of Her Majesty’s government. Many of them are in junior positions with little to do but vote loyally for their party in government. Others not in such positions sit on the backbenches mulling on whether they will keep their seats at the next election. They are acutely aware of public frustration and opinion and more ready to deviate from government policy. Government reshuffles when some ministers lose positions or others fail to be appointed can further boost “refuseniks” on the backbenches.

Shortly before the debate the Prime Minister stated “that I do not believe the right answer is to hold a referendum will-nilly in this parliament when we have so much to do to get Europe to sort out its problems”. In his speech to the annual party conference 2011 Cameron opposed an in/out referendum and his Foreign Minister William Hague too said the uncertainty of a referendum could be economically damaging at a time of economic difficulty.

In the Summer of 2012 Hague said there was “a very powerful case for an EU referendum” if the Eurozone continued to move to a closer union as a result of the economic crisis. The Euro-sceptic UKIP United Kingdom Independence Party greeted the move but slammed it as just a vague promise. Prime Minister Cameron backed his minister but added there was no current desire for a yes/no debate on Europe. He preferred to wait to see how Europe will react to the current crisis and what measures are likely to be taken and then review British relations: “I am not against referendums in our parliamentary democracy. Parliament is elected to make decisions and be accountable but when powers are transferred it is right to ask the people. …I am not against referendums on Europe. The last government should have held a referendum on the Lisbon treaty. They didn’t so this government put in place a referendum lock so that no government can ever again pass powers from Britain to Brussels without first asking the British people”.[viii] Once again Cameron stressed that leaving the EU would not be in Britain’s interests and the country should cooperate with its neighbours to maximise influence for freedom and democracy: “An “in” vote would have profound disadvantages. All attempts at changing Britain’s relationship with Europe would be met with cries that the British people had already spoken”. Here it is clear that that the timing of a referendum especially on a question of external affairs is seen to lie with the government of the day. The alternative model of a peoples’ initiative for a referendum could force the government’s hand possibly taking important cards away at the negotiating table. What Cameron was opposed to in Europe was “too much cost; too much bureaucracy: too much meddling in issues that belong to nation states or civic society or individuals. Whole swathes of legislation covering social issues, working time and home affairs which should be scrapped”. What the government will seek is a rebalance after an audit of the current state of competences. The prime minister sees that Europe will move towards closer integration which may be the only option in the light of the currency crisis but Britain would not be involved in increasing integration. Cameron concluded “for me the two words Europe and referendum can go together particularly if we really are proposing a change in how our country is governed but let us get the people a real choice first”. Hague added that Britain would be looking for a chance to negotiate “a better relationship” which might involve the returning of some powers to London before any referendum. So the preference is for a third way between yes/no by repatriating powers back and then going to the people. The Scots, it should be noted, would also like to get more powers from London but here Cameron would prefer a clear yes/no vote in any referendum.

Many backbench Tories want a firm commitment to a referendum in the next election manifesto to mobilise public opinion for the party. A former defence minister who resigned because he breached the ministerial code of conduct added that a life outside the EU would not be a terror scenario. He hinted at a more economic rather than political relationship with Europe to “rebalance” relations. Liberals trying to play down differences in the coalition already apparent on issues such as electoral reform, the House of Lords and regulation of the press, quote the new European Union Act with its referendum lock as offering ample protection for transferring competence and providing for any possible referendum.

The referendum option in election manifestos could be seen as an interesting tactical option by several parties to glean support before the next election. The United Kingdom Independence Party (UKIP) with representation in the European Parliament remains a potential threat for Cameron with its pro-referendum position. Disaffected Conservatives and those fearing for their seats in the next election could be allured to change sides. They could be neutralised if the Conservatives took a positive stand on a referendum on EU membership.

 

Referendum Design

Although national referenda are not common in the UK certain rules have evolved which would need to be born in mind in the event of the European question going to the people.

Since the referendum in Quebec in 1995 experts call for a clear unambiguous text (the Clarity Act) so as not to mislead voters. An in-out or yes/no referendum is arguably easy to understand but presents a stark choice with dramatic consequences. Some countries have experience of multi-question referenda eg New Zealand gave voters several options in a referenda on the voting system in 2011.

A referenda procedure is now laid down in the UK Political Parties, Elections and Referendums Act of 2000 (amended in 2009) with an independent Electoral Commission to look at the “intelligibility” of the text on the basis of  specific guidelines. Tests are conducted on voters to assess whether the question to be put is clear and not misleading. The initial drafting of the question is done by the government so the Act requires the Electoral Commission to look at the wording to see if it is intelligible.  This according to the Act takes place when the bill is introduced to parliament but “in practice there are likely to be contacts at official level before publication of any legislation. The Electoral Commission’s views are not binding on the government but are clearly influential”.[ix] The Electoral Commission consists of mostly non-party experts independent of and accountable to parliament.

In the UK referenda can be post-legislative (as in 1975) or pre-legislative held before a bill is introduced into parliament (eg the regional devolution referenda on Scotland and Wales in 1997); information was given in a government policy report on the likely legislative provision so voters would have a full picture of the possible consequences of their vote.

Thresholds and provisions for a minimum electoral turnout are generally not included in Britain.[x] The European Union Act with its referendum lock does not contain provisions for thresholds. These were unpopular after application in referenda in Scotland and Wales in 1979 where 40 percent had to vote “yes” before it could be considered valid. This was not met and led to some disillusionment. The Council of Europe Venice commission is hesitant when it comes to thresholds since it believes a threshold minimum percentage assimilates voters who abstain to those who vote no and a quorum which needs approval by a minimum percentage of registered voters risks a difficult situation. Voters should know before they go to vote that their vote will make a difference and there should be no uncertainty that it might at the end of the day not be valid because of a low turnout.

The Venice Commission has also issued guidelines and drawn up best practices and cautions against referenda on eg questions such as international law, human rights and the rule of law. But too many hurdles in designing referenda can lead to disillusionment with direct democracy.

Popular feeling on Europe in Britain is not positive which has been exacerbated by the flagging Euro and incessant discussions on a possible Greek exit or even collapse of the Union currency. Furthermore Britain is a net contributor to the EU budget. Any of the main parties if not all could well include a promise in manifestos for a referendum to mobilise the vote. Referenda are not binding on any UK parliament although governments would be politically advised to take note of the result.

One foot in and one foot out cannot last in the long run. Constant discussions on referenda and Europe promote a dynamic which could well catapult one on a topic that has figured large in British debates for decades.  The elusive referendum could well come and then Britain at last will have to make up its mind.

 

Dr Melanie Sully, British political scientist, was guest professor at Innsbruck University and for many years professor in the Diplomatic Academy, Vienna. She is editor and author of books and articles on Austrian, European and British politics. Currently Dr Sully is consultant for the OSCE on parliamentary standards and gender and for governance projects (www.go-governance.com) with the Austrian Federal Ministry for European and International Affairs; Dr Sully has been Vice President of the Institute for Parliamentarism, Vienna since 2009.

 



NOTES

[i] An Awkard Partner. Brtain in the European Community, OUP, 1990.

[ii] “Denmark voted against the Maastricht Treaty in 1992 and approved it with modifications in 1993; Ireland voted against the Nice Treaty in June 2001 and in favour in October 2001. In 2005 France and the Netherlands voted against the Treaty Establishing a Constitution for Europe, which was subsequently abandoned, and Ireland voted against the Lisbon Treaty in June 2008, but in favour of it with concessions in October 2009”. House of Commons, Research, 10/79 2010.

[iii] House of Lords Committee  Report on Referendums, 2009/2010

[iv] House of Commons Research Paper, 10/79 2010.

 

[v]  Explanatory Notes to the European Act, Foreign Office, London.

[vi] V. Miller, IADS, December 2011.

[vii] “Motions which direct the Government to undertake an action are not enforceable against the Government unless the original legislation gave the House the power to direct the Government in this way. Therefore the main effect of a motion passed by the House which calls upon the Government to take action is political”, see Parliament and Constitution Centre 20.10. 2011.

[viii] Quoted in The Telegraph, 30.6. 2012.

[ix] See O. Gay, Parliament and Constitution Centre, January 2012.

[x] See Melanie Sully, „Ein Königreich für mehr Bürgernähe“, Der Standard, 4.7. 2012 http://derstandard.at/1339639800813/Melanie-Sully-Ein-Koenigreich-fuer-mehr-Buergernaehe  and „Kampagne oder Instrument: Dilemma der direkter Demokratie“, Die Furche, 6.9. 2012