Reform Treaty means European Court of Justice will become “conclusive arbiter of the meaning of Union measures and … of national law”, says report

The European Foundation welcomes the UK’s parliamentary Labour-dominated European Scrutiny Committee new report on the Reform Treaty, published today, and in particular we welcome its understandable conclusions on: the Government’s deceptive red lines, disastrous Treaty provisions on the role of national parliaments expressed as a legal obligation, the Government’s false guarantees that the Charter can have no effect on the law of the United Kingdom when it is combined with consideration of the implementation of Union law, the weakness of the ‘opt-in’ on amendments to existing EU measures, and the loss of protection that will occur every time jurisdiction is transferred from UK courts to jurisdiction by the European Court of Justice and the Commission.

However, the report itself does not conclude with any sufficient warnings, pointers or redeeming aspects, since it weighs the concerns on the Reform Treaty not only as a purely technical task but one which must not unsettle the current Labour Government any further. (Note, the Committee is dominated by Labour MPs). It is therefore a matter of absolute priority that the Foundation endorses the draft report, published alongside the Committee report, which provides a proper case for why the requirements of this Treaty provide the necessary conditions for a national referendum.

Most importantly, the short appended report (pp.32-34) proposed by Mr William Cash and voted by James Clappison, Greg Hands and David Heathcoat-Amory makes the following points:

“We [already] concluded that “The new Treaty produced an effect which is substantially equivalent to the Constitutional Treaty” and we would add that even where derivations or opt-outs for the United Kingdom have been sought by the Government that these do not provide anything like adequate protection nor guarantees for the United Kingdom, its electorate and its Parliament. This substantial equivalence, together with the substance of the Reform Treaty, and the merger of the existing treaties into a union amounts to substantial constitutional change warranting a referendum in accordance with the Government’s own criteria for referendums.”

“The Reform Treaty, as compared to the Original Constitutional Treaty, requires a referendum of the electorate of the United Kingdom because it is the equivalent to the Constitutional Treaty, even if not the same. It is a distinction without a proper difference and, in the words of our 34th report, is “substantially equivalent to the Constitutional Treaty”.”

“There are also specific provisions arising in respect of the Charter of Fundamental Rights, the Common Foreign and Security Policy, the legal obligations imposed on the united Kingdom Parliament, measures relating to the criminal law, and measures related to Title IV which are deeply contentious and would require specific exclusion from having effect in UK law which for the avoidance of doubt could only be achieved by excluding their effect by the use of a provision preceded by the words “Not withstanding the European Communities Act 1972”. Such a formula would be essential but the government, by all accounts, would not be prepared to employ such wording, thereby putting the vital national interests of the electorate in jeopardy.”

“The Reform Treaty on all these tests requires a referendum. It would be a deceit of the electorate (even by the criteria for a referendum set out by the Government) to refuse to hold one, unless the Treaty itself was rejected by the Prime Minister before signature in December. Unless this occurs, refusal to hold a referendum would be a breach of trust with respect to the Reform Treaty (let alone past promises about the original Constitutional Treaty made in 2004) and would run clearly contrary to the assertions of the present Prime Minister that he is committed to restoring good governance, democracy and trust.”