The Tories and the Lisbon Treaty: a postscript

I have expressed earlier my conviction that it will turn out to be a disaster for Britain if the Tories, having won the general election in a few months’ time, carry out their threat either to hold a referendum on ratification of the Lisbon Treaty if it has not yet been brought into effect at that time, or, if it has, to demand that it be re-opened and re-negotiated.

In discussion of the issues raised by this Conservative Party commitment, not enough attention has perhaps been given to the fact that Britain has completed ratification of the Lisbon treaty, and has lodged the instrument of ratification (as required by EU law) with the Italian government in Rome.  Britain has given its formal legal approval to the treaty and will thus be bound by its terms if and when it is brought into effect, probably after a positive vote in the second Irish referendum, at which point the Czechs, Poles and Germans are expected to complete their ratification processes too (none of them requiring a referendum).  The treaty would then have been formally approved unanimously by all EU member states and would come into force.

There is a convention in international affairs that after a change of government, the new government continues to observe its obligations under existing treaties, which indeed form part of international law.  When there is a coup d’état in (for example) a developing country, the first message passed to the new ruler by anxious western governments is a reminder that he — rarely she — must abide by his country’s existing treaty obligations.  The reason is obvious: international law would be a constantly shifting, indefinable muddle — even more incoherent and inchoate[1] than many think it is already — if every new government felt itself free to cherry-pick which treaty obligations to respect, and which to repudiate and “re-negotiate”.  Britain has ratified Lisbon, in common with 22 out of the other 26 EU governments, and that should be that.

Of course if Ireland votes No again, or the Czechs, Poles or (improbably) the Germans decline to ratify, the treaty can’t be brought into effect and all bets are off.  But that’s not the scenario envisaged in the Conservative Party’s policy commitment.

The convention of respect for existing treaty obligations is not legally binding (as far as I know — perhaps some helpful lawyer will correct me if I’m wrong?) and it’s open to governments under the terms of some treaties to withdraw from them them if they include provision for doing so, or if the circumstances obtaining at the time of the coming into effect of a treaty change so radically that the treaty is clearly no longer applicable.  As Wikipedia sagely puts it, –

In public international law, clausula rebus sic stantibus (Latin for “things thus standing”) is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an “escape clause” that makes an exception to the general rule of pacta sunt servanda (promises must be kept).

Someone might remind Messrs Hague and Cameron of the “general rule”:  promises must be kept, even if they were originally made by the other side.  They are made on behalf of the whole country, not just for one party or for the duration of a particular government.  The reaction to any demand for re-negotiation of such a recently ratified treaty by a new British government, or for the withdrawal of our ratification of it, on the part of the majority of our EU partners might well be that if we are no longer satisfied with an essential building-block of the new expanded European Union, approved by every single EU government, then we must exercise our right under the treaty to withdraw from the Union.  A more devastating example of the law of unintended consequences (if the Tories mean it when they say they favour continued EU membership) would be hard to find.

This is one more reason for looking askance at this particular element in Conservative Party policy, on top of the likely malign practical consequences for Britain, politically and diplomatically, if the Tories, once elected, go ahead and carry out their threat — see my earlier post on this.  Caveat emptor!

Update (30 May 09): Gratifyingly, today’s front-page lead story in the Guardian (“Tragic, unwise: grandees turn on Cameron over plans for EU“) reports that the Conservative party’s EU policies are to be attacked today by a group of senior Tory figures and senior former diplomats:

A group of Tory grandees and former ­senior diplomats will tomorrow launch a devastating attack on David Cameron’s flagship Eurosceptic policies, warning that they pose a threat to British influence in the European Union.

The group includes Lord (Leon) Brittan (a former Tory home secretary and EU Commissioner), Lord (Christopher) Tugendhat (former Tory MP and EU Commissioner), Lord (Chris) Patten (former Tory MP, Chairman of the Conservative Party and EU Commissioner), Lord (Patrick) Wright (former British ambassador and Head of the Diplomatic Service), and Lord (John) Kerr (former British ambassador to the EU and former Head of the Diplomatic Service).  These are all men with direct experience of the EU:  they know whereof they speak.  As Nicholas Watt’s Guardian article says, —

Retired diplomats are careful about speaking in public. However, the strength of their language reflects Foreign Office concern that Cameron will trigger the worst crisis yet in Britain’s relations with the EU.

Well, I’m not sure that the first part of that is universally true; the second part certainly is.  What’s more (no pun intended), this is not simply a question of British “influence” in Europe (easily derided concept):  it’s a question of a British government’s ability effectively to defend and promote Britain’s interests in the formulation of EU policies and laws which directly affect the lives of all of us.  If we join up with the barmy fringe parties of east and central Europe and thereby alienate the big players and natural allies such as France, Germany, Italy and Spain, and if we obsessively pursue demands (such as re-opening and re-negotiating a treaty that Britain has formally ratified and which has near-universal support among our partner governments) which stand no chance of gaining majority support in the EU, British interests, not just influence, will be damaged — perhaps terminally.

I’m glad that this issue is now earning banner headlines.  I hope my Guardian letter on the subject on 22 May, if not my previous blog post spelling the arguments out at greater length, may have contributed to a growing public awareness of the dangers posed by Mr Cameron’s and Mr Hague’s obstinate commitment to diplomatic suicide.

[1] Inchoate: unfinished, only partially formed (not a pedantic synonym for ‘chaotic’ or ‘incoherent’).


3 Responses

  1. Peter Harvey says:


    A slight clarification. In Poland and the Czech Republic the treaty is awaiting presidential signature, which is being delayed until after the Irish referendum. In Germany the Constitutional Court  has yet to rule on it.

    I am not sure who is helping whom as far as Spain is concerned. David Hannan has been in Spain trying to get the expat Eurosceptic vote. I have had a look at the  Alternativa Española (AES) web site, and it is everything that the Guardian says today; it is a Christian Social party, which allies itself with the most obsurantist and reactionary parts of the Spanish Church (which is saying a lot), and I don’t know how that will play with British expats. But … what infrastructure and assistance  can they offer? At last year’s Spanish general election, they managed a grand total, in all of Spain, of 7,078 votes (0.03%)!

    Brian writes: I’m most grateful for the correction (how could I have forgotten the Poles?) and I have amended my post accordingly. The information about Alternativa Española is wonderful.

  2. John Miles says:

    I’ve tried to re-read your letter through the eyes of a reasonably open-minded Eurosceptic, if you don’t think that’s too much of an oxymoron.
    I’m a mild Europhile myself, for what you may think are the wrong reasons, or anyway irrelevant ones: I wouldn’t ever want to live outside England, but I’ve liked and admired most of the continentals, and most of the Irish, I’ve ever had to do with, and quite like the idea of throwing in our lot with theirs.

    The sceptics really need to be told the answers to questions your letter doesn’t attempt to deal with:
    Precisely how have ordinary English families – eg mine – benefited from our involvement with Europe?Precisely what deadful things will they suffer if we get the boot?
    Your letter was all doom and gloom, and about things many of us are not as interested in as perhaps we should be.
    RICHARD (frowning). …That is the only force that can send Burgoyne back across the Atlantic and make America a nation.
    JUDITH (impatiently). Oh, what does all that matter?                                              (GBS, Devil’s Disciple)

    You say, “promises must be kept,” and most people would agree that’s normally the case.
    So what about the promise to hold a referendum on Lisburn?
    You argue, and you may well be right, that the current agreement is so changed that a referendum is no longer necessary.
    But many people don’t buy this, for good reasons or for bad; and they that think anyone – including foreign governments – stupid enough to be conned by New Labour’s promises only get what they deserve.
    To return, if I may, to the rights and wrongs of Lord Kinnock’s putative wealth.
    You say, “No doubt he had (and damn well earned) a significant* salary when an EU Commissioner
    If you mean he committed himself 100% to the job, and always did it as well as he could, you’ll get no argument from me.
    But that’s not point. Lots of people do this; some of these jobs are as demanding as Lord Kinnock’s, most of them much more boringand longer-lsting.
    The point, it seems to me, is whether or not Lord Kinnock gets more or less than his fair share of the national, or of the European, cake.
    I’ve no real idea what the actual figures are for his salary, let alone for his expenses or allowances
    But it’s hard to believe he gets less.
    Let’s just consider his pension arrangements.
    Presumably he’ll get something from the EU: something probably index-linked, probably payable from age sixty, probably more than most of us get from full-time work.
    Then there’s his MP’s pension – I’ve no idea how much, but I daresay most of us would be pretty pleased to have it.
    Then there’s his OAP – a mere six grand, but better than a poke in the eye from a blunt stick.
    And if he runs out of readies he can always check into the Lords and collect a day’s xses.
    Finally, if he makes it to eighty he’ll get a bonus of 25p a week from Mr Brown.
    Is this really anyone’s vision of what Labour’s all about?
    Was it Lord Kinnock’s when he decided to go into politics?
    * One of Sir Humphrey’s – and my – favourite words: sounds really impressive, doesn’t really mean a thing.

    Brian writes: I’m delighted to see someone (i.e. you) quoting Shaw, now so sadly neglected.

    On promises and keeping them: please write out 100 times, “The Lisbon treaty is not a constitution and no-one promised a referendum on it.” The defunct draft constitution on which a referendum was promised was just that: it contained a full-blown, grandiose constitution for the EU that would have replaced all the founding treaties which, taken together, make up the existing constitution. The Lisbon treaty comprises amendments, few of them anything like as far-reaching as the amendments made in some earlier treaties, to the existing treaties, which will remain in force as amended if and when the Lisbon treaty is ratified by the 27 member states and comes into force. When the Sunday Times of Mr Murdoch calls the Lisbon treaty “the constitution”, as it persistently does, it betrays not ignorance — they know exactly what they are doing — but a willingness to tell bare-faced lies in order to score invalid political points. We have never had a referendum on an amending treaty and no-one has ever promised one.

  3. John Miles says:

    Please, sir, that’s not fair, sir.
    I only said, sir, that an awful lot of people don’t seem to agree with you.
    Why are people so stupid, sir?
    Can I go out and play now, sir?

    Brian writes: Certainly not. If that’s all you had to say, you had better stay behind after school and try to think of something to tell me that I didn’t already know.

    (And I think this particular exchange, with respect, has outlived its usefulness.)