Our dear Eurosceptic friends have long been preparing themselves to make the argument “if it looks like a constitution, sounds like a constitution, then it’s a constitution”. Now that the replacement treaty is (almost) there, it’s time to see if they have a point.

Here (WARNING: PDF) is the summary of the recent summit, containing the guidelines to which the Intergovernmental Conference (IGC) will be working when drawing up the final treaty document.

That, so far, is all we have to go on. Yes, there have been countless proposals over the last couple of years, and Angela Merkel drew up numerous versions of possible European Constitution replacements, but until these guidelines were agreed over the weekend, all that was academic.

The most important part of that summary is Annex I (pages 15-30, of which pages 24-30 merely detail amendments to two existing treaties) – and while this is not the treaty itself, it will form the basis of the final text. Does it look like the old constitution? Does it look like a constitution in any sense?

First up, of COURSE there are going to be bits from the old constitution included in the new treaty – because both the old constitution and this new “Reform Treaty” are designed to do exactly the same thing – make the EU function more efficiently and increase democratic accountability.

The argument that some of the anti-EU crowd have made that the EU constitution was rejected so therefore everything it contained should be scrapped, is blatantly wrongheaded and illogical – it uses the same argument that the Labour party have repeatedly done when promoting their accursed ID cards and the like (which were, of course, included in the Labour election manifesto) of claiming that because you voted for one aspect of something, you therefore voted for everything associated with it, and vice versa.

The old constitution was a bad text, and an over-long, confused document – but that’s not to say that everything it contained was bad, nor that every change it planned to make to the functioning of the EU was radical, nor that its rejection by French and Dutch voters means that every single proposal it contained should be scrapped. (Plus, of course, the old constitution was largely made up a a rationalisation of all the existing EU treaties. As much as the anti-EU crowd would love it, because the constitution was rejected and the constitution contained aspects of the treaties of Nice, Maastricht, Amsterdam and Rome, it doesn’t mean that all those treaties should now be repealed.)

And secondly, of course any treaty governing the functioning of an international body is going to look a bit like a constitution. Constitutions are, after all, all about setting out rules, regulations and responsibilities. In other words, the existing EU treaties – be they Rome, Nice, Maastricht or whatever – could also be argued to have a constitutional character. What made the “European constitution” so different? Why didn’t those previous EU treaties require ratification via referendum? And – more importantly – where is the precedent for an international treaty being ratified only after the approval of the people is sought, and what precedent would such a move set in terms of British constitutional law?

As far as I can see it – and in the God knows how many years the damned thing’s been knocking around I haven’t seen anything to really convince me otherwise – the only reason the old constitution was called a constitution was because some bright spark thought it would be a good idea. In character and content there was little to set it apart – because all it really did was take all the existing treaties and combine them into one document, with a few bonus clauses adding a president, foreign minister, and shifting the power balance more in favour of the European Parliament.

As such, the new guidelines insiste that “The constitutional concept, which consisted in repealing all
existing Treaties and replacing them by a single text called ‘Constitution’, is abandoned”.

But that could just be cunning wordplay, couldn’t it? Well, yes. Sort of. But they go in to more detail in Annex I.i.3:

“The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term ‘Constitution’ will not be used, the ‘Union Minister for Foreign Affairs’ will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations ‘law’ and ‘framework law’ will be
abandoned, the existing denominations ‘regulations’, ‘directives’ and ‘decisions’ being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice”

Now you could very easily argue that just because something isn’t called a law doesn’t mean that – in practice – it doesn’t have all the characteristics of a law. Just because I choose to call my nose a glooblesplunker doesn’t stop it from being a nose.

But when it comes to the law – especially international law – the situation in practice means very little: terminology is all. This is why a genocide does not become a genocide until the UN says so. This is why there is no internationally-recognised definition of “terrorist”. The importance of terminology cannot be overemphasised.

So, if it’s not called a constitution, it isn’t a constitution. Simple as.

Which means that it’s really up to the proponents of a referendum to make a case about why there should be one, considering that holding referenda on international treaties is unprecedented in the UK.

One of the arguments that seems to be coming up from certain pro-referendum quarters is the restrictions that will supposedly be imposed on British foreign policy by the introduction of an EU foreign minister. Well, first of all, it’s no longer a foreign minister, but a “high representative” (that terminology again) – but more importantly is this, from a footnote to Annex I.ii.12:

“The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations. The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States”

Please note in particular the “do not prejudice the specific character of the security and defence policy of the Member States”. Unlike, for example, Britain’s membership of the UN, NATO or the Geneva Convention, all of which commit us to specific ways of acting on the international scene – and we didn’t have referenda over any of those.

Blair was a fool to promise a referendum in the first place – not simply because the “yes” campaign was unlikely ever to be able to win in a country so dominated by a hostile, anti-EU press, but also because of the potentially dangerous precedent it would have set. But it was a promise based on a different document with wider-reaching ramifications.

Yes, the new treaty will do much of what the old constitution aimed to do. By the look of things, pretty much all that is going to change – in any substantial sense – is the terminology. But it also no longer consolidates all of the treaties that underpin the EU’s existence into one big document. It no longer proposes to contain all the rules and guidelines for the functioning of the Union. It is therefore no longer a constitution. Blair’s promise was for a referendum on an EU constitution, not a new EU treaty.

You may well consider this all a devious bit of misdirection – and you’re probably right – but considering that there is no legal or constitutional basis for Britain to hold a referendum on either a treaty or a constitution, a more substantial argument needs to be made as to why a referendum should be held. Plus, of course, it’d be nice to find out why anti-EU types are so keen to put a stop to reforms that would reduce the power of the hated Commission and increase the EU’s democratic accountability. They may not be the far-reaching changes that are needed, but at least they’re a step in the right direction.