As I had suggested during the run-up to the agreement on the IGC mandate in June, it has provided politically difficult for the UK government to justify a U-turn on holding a referendum on the deal on the Reform Treaty, since it preserves a very large proportion of the Constitutional Treaty. The critics are, of course, exaggerating the extent of the similarity -- ignoring, in particular, the new opt-out on policing and criminal law which the government has secured -- but the fundamental point that the two treaties are otherwise very similar (although not identical) is valid.
While it is possible to argue that the two new opt-outs (on policing and criminal law and the Charter) are sufficient to justify the U-turn, this argument does not seem to be proving successful in practice -- in part surely because groups like Open Europe are lying about the new opt-out on policing and criminal law. Also, the critics who thought that the safeguards attached to the Charter were ineffective are insisting that the further safeguards provided by the new UK Protocol on this issue are ineffective too. Although neither argument is convincing in light of the Court of Justice's record on the Charter and on limiting the scope of human rights as general principles of EU law, the fact remains that this new Protocol is not defusing calls for a referendum.
Anyway, the government's anti-Charter position is irritating trade unions -- so it is trapped between its desire to please business critics of the Charter and its desire to please its trade union supporters. Both sides are wrong in their assumptions that the Charter would change the status quo as regards the protection of social rights in EU law -- but it is hard to convince them of that, and hard to prove what would happen in the event that the Treaty was ratified.
If there really are significant numbers of Labour MPs willing to vote for a referendum, as the press suggests, there are several options open to the government.
a) give in and call a referendum. This would damage the government's relations with its European partners, who might feel compelled (as in 2004/05) to call their own difficult referendums in turn and in any event, since the UK demanded changes to the Treaty in order to avoid a referendum, consider that the UK has reneged on the 'deal' in June (ie, you can have some Treaty changes in return for not calling a referendum). A massive loss in the referendum would also then perhaps be difficult politically for the government to recover from.
b) call an election. This is attractive since the Labour party is well ahead in the polls, although this support might prove soft. There is a risk that the election will itself become regarded as a referendum on the Treaty or that the polls which show that significant numbers of Labour voters would change their vote on the referendum issue are correct. (Then again, if so many voters are annoyed about this issue, why has the government built up a significant polling lead over the last two months?). The other downside for Labour in calling an election is that the party is strapped for cash.
c) demand major changes to the Treaty along the lines of the arguments made by the Labour rebels. This would again irritate the government's partners in light of the deal in June, and they would be unlikely to make major concessions. So either the government would have to soldier on with a handful of minor concessions, or veto the Treaty -- having signed up to a deal in June. (Of course, it was Blair, not Brown, who signed up to the deal, although partner governments will still perceive any demand for renegotiation by the UK as duplicitous).
Minor concessions would only satisfy a few of the critics. On the other hand, a veto would delight a lot of public opinion in the UK but it would take some time to restore relations with the government's European partners. In fact it is very likely that if the UK vetoed the Reform Treaty, having already signed up to a negotiation mandate in June, other Member States would very seriously consider the possibility of going ahead without the UK in some way, potentially by denouncing the existing Treaties.
I will comment in a separate post about what minor concessions could be achieved, and about the agenda of the Labour rebels.
d) wait and see if a Polish election, or a referendum in Ireland or possibly the Netherlands or elsewhere, might kill the Treaty, as was the case in 2005. If not, then at least the government will be able to rely on the argument that if the UK is the last to ratify, then failure to ratify will mean de facto departure from the EU. I doubt this, by itself, would convince enough voters in a referendum or quite enough MPs to work, though. And there will not be much time to wait if other Member States are serious about ratifying the Treaty by early in 2009; this scenario also means that the government may be reluctant to call an election in what would otherwise be favourable political circumstances.
The way forward The easiest path may be to combine c) and d), trying to get some concessions while waiting to see if someone else kills the Treaty or successfully demands to renegotiate it. Furthermore, the government also has other titbits that it can offer its rebels and trade unions, and other distractions which can be offered to the public. However, politics can develop a certain momentum and it is entirely possible that a hard choice between calling an election, holding a referendum or vetoing the Treaty will be unavoidable before too long.
All this could have been avoided if, as I argued in the spring, the EU leaders had agreed a rather more modest negotiating mandate that departed more significantly from the Constitutional Treaty and could not so easily be presented (partly truthfully) by critics as an attempt to sneak the Constitutional Treaty past the public again with purely cosmetic changes. But now the mandate has been agreed, it is hard to see how the EU could be brought around to that position without vetoes or referendum defeats for the Reform Treaty.
Let's hope that the third time around at a new Treaty, if the second attempt fails (as is starting to look likely) the maximalists will have the good grace to admit that their strategy has failed and indeed damaged the EU, and accept that the way forward is to proceed with more modest Treaty amendments that are closer to the grain of public opinion in the more Eurosceptic Member States.