The Lisbon Treaty – what next?

The question of a referendum on the Lisbon Treaty rears its head again – and the debate in the Conservative Party appears polarised between opposing sides that rarely appear to be talking about the same things.

Treaties – who signs them and how do they become part of our law?

Treaties in our Constitutional settlement are one of those things that are left to what constitutional theorists, lawyers and the like call the Royal Prerogative. The debate about the extent of that prerogative is one that has, effectively, been going since William landed near Hastings and won the battle against Harold! It is one that has led to advances and set backs for ordinary folk, with treaties being signed between Kings and the Lords, legislation including Acts of Parliament, civil wars, settlements and in the last couple of centuries a debate and argument between Government and Parliament.

When it comes to the current legal position relating to Treaties, our Government is sovereign in the sense that it exercises our Sovereign’s power as Head of our State to enter into agreements with other Sovereign States – and which we call Treaties. Lately, there has been a decision to allow debate in Parliament, but that debate has been heavily circumscribed and it has to be doubted that a resolution at such a debate would be of any legal effect – merely political.

Since the 1960’s our courts have tried, wherever possible, to interpret our laws (including statutes) in accordance with our international obligations. This interpretation has only been possible where there is ambiguity in the statutory provisions and a decision one way will put us in breach of those international obligations, while a decision the other will keep us within them.

Treaties – the effect of the EU

There have been those who have been involved in numerous challenges to the Treaties relating to the EU since its creation in the Maastricht Treaty. Many of the same people were involved in political campaigns against the UK’s membership of the EEC and EC. But with the advent of political integration, largely at the behest of the socialists in the EU, the possibility of legal challenge opened up.

However, in order to succeed in any such litigation, the applicant will need to find a judge and judges on appeal and in the House of Lords (Supreme Court) who are prepared to take decisions that are essentially political in nature – and as we have seen with successive litigation, the prospects of this practical limitation being overcome are slim. While there are complaints about the judiciary taking political decisions, the reality is that on big issues, such decisions are merely inconvenient rather than politically explosive!

In 1972, our Government signed up to become members of the European Economic Communities. This decision was made in furtherance of the Sovereign power, and it subscribed us to membership of a body whose founding treaty, the Treaty of Rome, describes the lofty ambition of an ‘ever-closer union of the peoples of Europe’. The reality is that this Treaty was not, I believe, intended to be different from our membership of the United Nations or our membership of that other European body that we joined in 1951, the Council of Europe. But the development of the EEC has been different from those other bodies in many significant ways.

Some of the opponents to our joining the EEC saw the risks of our membership and argued that we should not join an organisation that would lead us into binding commitments with other member states that we would not be able to escape from. They also pointed to the unequal bargaining that came from our late arrival. Some of the enthusiasts pointed out that we should have joined at the outset, but that having left it so late, we needed to make the best of it and make all the gains that we could from the ‘common market’.

As a lawyer, I have noted the arguments that have raged between academics about the status of the EEC and its institutions along with the effect that that status has on our laws. Some assert that since 1972, we have been bound to a body that, in certain respects, supersedes our own laws. Others have pointed out that with the sovereignty of Parliament, we can always repeal the laws that we disagree with. Whilst the courts have concluded that Parliament’s Sovereignty has remained, it has to be doubted that the doctrine of implied repeal survives the 1972 Act at least so far as our membership of the EEC (and now the EU) is concerned and the relationship between our laws and the laws of the EEC (and soon to be EU) are concerned.

Legal argument was made at the time of our Government’s signing the Maastricht Treaty that explained that there were limits on the ability of Government to transfer power to a foreign body in the absence of express authority from the people – and these arguments were rejected by the Courts on the basis that Parliament was Sovereign, that the power to make treaties was a matter for the Royal prerogative and that the Maastricht Treaty did not in fact transfer so much power to the EEC and to the new EU as to make our own governance superfluous.

This argument was expanded at the time of our Government’s signing of the Nice Treaty. In that case the same arguments failed on the same grounds, but the Court accepted (Laws J) that there would come a time when so much power was transferred as to make our own governance subsidiary to that of a foreign body.

The interesting thing about the legal challenge to the Lisbon Treaty is that these arguments were not made – reliance instead was placed on an interesting, but ultimately and foresee-ably futile, argument regarding the status of manifesto commitments.

What I have written about the legal arguments is a personal view and I should explain that it would not be itself uncontroversial – it is often said that if you get 2 lawyers in a room you will end up with at least 3 arguments about everything!

The Lisbon Treaty – what next for opponents?

The Lisbon Treaty is about to be ratified – and will probably, by the time you read this article, be in ratified and in force. The laws of treaties between nation states provide no precedent for the unilateral withdrawal from a treaty once the treaty is ratified and in force. Before ratification and coming into force, there are a very small number of precedents – and in my view it would be possible legally and properly for a party to unilaterally withdraw instruments of ratification before a treaty came into force without any legal consequence.

For those that demand that the UK withdraw its instruments of ratification after the Lisbon Treaty has come into force, one problem is this: there is no legal precedent for such action. Another problem concerns the legal consequences of such an action: which would be serious and are provided for in the Lisbon Treaty itself – and could include being kicked out of the EU altogether as well as fines and other financial penalties.

For those that demand that the UK hold a referendum on the Lisbon Treaty, after it has come into force, one problem is this: what would be the effect of such a referendum? If we cannot withdraw the instruments of ratification, then the result of any referendum will be indicative only. Is that really a proper basis on which to spend very large sums of money at this particular moment in the economic cycle?

My views are that the Lisbon Treaty and its changes to the EU are not in the UK’s interests; that the Labour and Liberal Democrats behaviour in our Parliament to deny the people a referendum that they promised at a time when such a referendum could have effect was despicable and disgraceful; and that we should do everything we can to ameliorate the worst aspects of the Treaty itself and its impact on our ability to govern ourselves. Sadly, I do not believe that we can, as a matter of law, unilaterally withdraw our consent that was, as it currently stands and as a matter of law, properly given to the Treaty through the use of the Sovereign’s prerogative power.

To continue to demand a referendum once the Treaty is ratified and in force would in my view be to distract from the very serious work that needs to be done to carry out the work that needs to be done to make the EU work for us and to withdraw the EU’s power over certain areas of our national life. Politically, my view is that it would be a serious misjudgement: one that would reopen old wounds in the Conservative party and one that could not be reasonably expected to provide a tool for either negotiation or to aid a future Conservative Government (if one is elected) in its discussions with other member states. The reality is that it would be merely a massive opinion poll and it would have about as much effect.

For the Conservative Party to accept the status quo – that the EU has changed and that the Lisbon Treaty is in force – and then to start the hard work negotiating the changes that the Conservative party desires and that the UK requires is the best way for us to move forward. It is not, as others have said, a betrayal of a commitment; because time has moved on and the Treaty is almost in force.

Remember this: there are many aspects of the way in which the EU will exercise power that will be up for discussion and negotiation. These include areas where the Conservative approach will be very different to that adopted by Labour in Government and it is not a requirement that the integration bandwagon will continue: indeed, it is possible that things that have hitherto gone in one direction can be reversed.

Of course, there is nothing that I can write or say that will mollify the people who already believe that the UK would be better off out of the EU altogether. My instincts are sympathetic to that position, but my head says that at this moment, where the threats to the global economy and trade, to the natural world and to liberty are serious and potentially not in our national interest, the time for us to withdraw from a body that has the potential to multiply our influence by adding it to the voice of other member states has the potential to diminish our status without benefit.