Nations follow the constitutional patterns of their own history. Britain and Germany have very different constitutional experience, and disagree completely about the Constitution of the European Union. French historic experience is different again, though closer to Germany than to Britain.
Germany was united by Bismarck in the 1860s and early 1870s as “the Prussian Empire.” The existing states of Germany, such as Bavaria, became subordinate states in a federation. The philosophy of the new state was based on the Hegelian view of the central role of the State, and on the German reaction to Prussia’s defeats by Napoleon. The result was a centralised federation, with a relatively weak democratic element. After 1945, the German constitution was reconstructed on the basis of democracy, but remained a centralised federation, with power in the federal government rather than the regions. German public opinion tends to see the centralised federal model as “natural” and assumes that this will be the pattern of the United Europe they expect to emerge eventually from the European Union.
Britain looks back to the seventeenth century rather than the nineteenth. In the 1640s, Parliament defeated King Charles I and in 1688, the parliamentary forces expelled King James II and created a constitutional monarchy under William III. Parliament became the sovereign power. The British naturally resent the attempts of unelected European bodies to overrule the laws of their own elected Parliament. They want to win powers back from the European Union, whereas Germany wants to transfer still more powers from the national Parliament to the Commission and the Council of Ministers.
In 2004, a new European Constitution was drafted by a European constitutional conference under a French Chairman. It was essentially a German style of constitution, and most Germans regarded it as a perfectly natural federal constitution, with sovereign powers going to the centre. This constitution was rejected in referendums by the Dutch and the French voters. The British Government, led by Tony Blair, promised the British voters a referendum of their own. This promise was included in the Labour Party Manifesto for the British General Election in May 2005. As the Dutch and the French had voted “no”, this British referendum was never held. British public opinion, however, still demands a referendum. The polls show that the vast majority of British voters believe that a referendum is the only legitimate way to ratify a constitutional treaty.
In June 2007, the European Governments adopted the framework for a new constitutional treaty, in which the only major change is that the word “constitution” has been dropped. This Treaty is to be called the “Reform” Treaty. This reform Treaty was negotiated by Tony Blair in his very last days as Prime Minister. The question is: should there be a referendum on the Reform Treaty”. That will be a decision for the new Government under Gordon Brown. My own view is that their election promise is binding Labour won the 2005 election on a manifesto which promised a referendum. The Reform Treaty is in substance the same as the original Constitutional Treaty. The issue is one of great constitutional importance. A referendum is an obligation of good faith.
This argument turns on the relationship between the original Constitutional Treaty and the Reform Treaty. A London think tank “Open Europe” has produced an analysis which shows that 40 substantive issues have indeed been transferred from the old Constitutional Treaty to the new Treaty. These range from the creation of a new office of EU President, which used to rotate on a six monthly basis, to the end of the national veto on the yearly Budget. The full analysis, for those interested, is available here [PDF].
The Open Europe Director Neil O’Brien comments; “As the draft stands today, it is almost no different to the original constitution.” He is clearly correct.
Gordon Brown knows that British public opinion is in favour of a referendum. He could, if he chose, use a General Election to obtain public endorsement of the Treaty, but he would risk rejection if he fought an election on the issue of the European Constitution. If he ratifies without a referendum, he will be open to the charge of ill faith.
Behind the referendum question, there lies the Anglo-German difference about the appropriate basis for a Constitution. The British believe in the sovereignty of an elected House of Commons; the Germans believe in the sovereignty of the state. To Germans a centralised federation seems natural; to the British it seems undemocratic.
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