JURIST Guest Columnist Michael Dougan, Professor of European Law and holder of the Jean Monnet Chair in EU Law at England's University of Liverpool Law School. says that the UK referendum on the treaty to establish a European Constitution is a high-risk game, both for Europe and for Britain…

The EU's Constitutional Treaty, agreed in October 2004, must be ratified by every Member State in accordance with its own constitutional requirements: whether by parliamentary vote (as took place in countries such as Italy, Greece and Hungary); popular referendum (as was held in Spain); or some combination of the two (as will occur in Ireland). A declaration annexed to the Final Act of the Intergovernmental Conference envisages that if, two years after signature of the Constitution, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter should be referred to the European Council. That is an understatement of the obvious: if even a single Member State fails to ratify the Treaty, the latter cannot enter into force, and the European Council would be obliged immediately to start deliberating the best way forward.

Those deliberations would be likely to focus upon four basic options:

1. the Member State(s) concerned might have a second attempt at ratification on the basis of the Treaty as it stands and hope that persistence pays off;
2. another IGC could undertake formal renegotiation of the Treaty, which would then have to be submitted for re-ratification by all of the Member States;
3. the Member States might collectively abandon the Constitution, so that the current Treaties as amended by Nice remain in force;
4. the Member State(s) concerned might voluntarily withdraw from the existing European Union, so that the new Treaty can enter into force in respect of those countries which have successfully ratified it.

The UK ratification process is generally acknowledged to be among the most awkward. Tony Blair must sometimes regret being bounced by tabloid and Opposition pressure into calling a popular referendum which is not necessary as a matter of British constitutional law, but whose result will in practice become determinative of the parliamentary ratification procedure, when opinion polls consistently suggest high levels of hostility towards, and only a low percentage of (lukewarm) support for, the Constitution.

Yet even before serious campaigning begins there are clouds on the horizon, in the form of the French referendum on the EU constitutional treaty scheduled for 29 May 2005. Rumours abound that Blair secretly hopes for a French “non”, and that this rejection would be by a sufficient margin to stop any constitution dead in its tracks — leaving Nice as the EU’s only viable option for the foreseeable future, and rendering any further attempts at ratification by other Member States (including the UK) superfluous.

The British will therefore experience a meaningful referendum campaign only if France votes “oui” and the recently-re-elected Labour government sets out to champion the Treaty in the face of a sceptical public. In that event, one suspects that the broad terms of the referendum debate (as in other Member States) will not focus upon what the Constitution actually changes. After all, many of the Constitution’s reforms (such as the new hierarchy of regulatory norms, or the definition of qualified majority voting within the Council of Ministers) are dull as dishwater to all but specialists in EU law and politics. Passions are much more likely to be shaped by popular (dis)satisfaction with aspects of the existing acquis that are touched but little — if at all — by the Constitution itself (such as the principle of supremacy and the common fisheries policy); by the tendency of Eurosceptic media and politicians to blame every alleged vice (from the Human Rights Act to the number of attempted asylum seekers) firmly but groundlessly upon the Brussels bureaucrats; or by panoramic visions of the UK’s political destiny within or outwith the EU (which often thrust upon the voter a highly simplified choice between “belonging to Europe” or “siding with America”).

All that makes the referendum a high risk game — and if it ends in a “no”, it will present Blair with a serious crisis. He has already signalled his reluctance to pursuing Option 1, i.e. holding a second referendum on the same Treaty. Perhaps the best he could hope for is that a UK “no” is matched by several other Member States (such as Denmark, Poland and the Czech Republic): it would then be plausible to join forces and argue more convincingly for Option 2 (renegotiation and re-ratification) or Option 3 (sticking with the Nice status quo).

But if the UK alone rejects the Treaty, the room for political manoeuvre would become much tighter. Sticking with Nice would be seen as holding the European integration process hostage to the lowest common denominator, and might appear unlikely to win support from the other 24 Member States willing to forge ahead. Seeking renegotiation and re-ratification would be impractical at the best of times, and seems even less likely to work for Blair. After all, the Constitution is already seen by many countries as very much a British product: the UK’s input into the Convention was influential, and Blair’s “red lines” on issues such as taxation and defence dominate much of the final text. If Blair cannot persuade the UK population to accept even that very favourable deal, why should the other Member States agree to water down the settlement yet further? At this point, another problem arises. For all Blair’s positive engagement with the EU, he does not seem to have succeeded in making the UK feel like the same “indispensable” member as France or Germany (thanks not least to his relationship with the Bush administration on major foreign policy issues such as the invasion of Iraq). All of which might combine, in the event of a solitary British “no”, to transform Option 4 — voluntary withdrawal from the EU so as to allow the other Member States to proceed with ratification — from the ludicrous and unthinkable into the frightening yet possible; and leave the UK to reengage with the EU essentially through some sort of trade organisation such as the European Economic Area.

Ironically, if that were indeed to be the result of this referendum process, it might well entail exactly the loss of British sovereignty for which “no” campaigners vociferously denounce the Constitution. The UK would be obliged (de jure or de facto) to dance to the EU’s regulatory tune, but without having politicians and officials fighting the British case from the inside. In that regard, the UK might become a little like how many commentators currently view Norway: economically prosperous, perhaps, but politically marginalised.

Michael Dougan is Professor of European Law and Jean Monnet Chair in EU Law at the Liverpool Law School, University of Liverpool, England
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