"Substantially different" vs. "substantially equivalent"

J Clive Matthews
9 October 2007

The former is the British government's line on the new Reform Treaty, the latter the view of the Commons' European scrutiny committee (see BBC). This is a committee very rarely heard from, and that rarely lives up to its name, despite being the only body in the Commons officially tasked with keeping an eye on EU legislation - legislation that can, in some cases, override that passed by parliament. (It's normally the far more efficient committee in the House of Lords that does the real work.)

So, who to believe? The government - desperate to avoid an unwinnable referendum at all costs - or a bunch of MPs no one's ever heard of (plus Tory arch-eurosceptic Bill Cash) - who would, if the Reform Treaty is passed, be obliged to do a hell of a lot more work (due to the treaty's provisions to allow national parliaments several more areas in which they can affect EU legislation?)

Ignore the issue of how similar the Reform Treaty is to the Constitution (the answer's simple: it's almost identical - it just isn't a constitution any more) - this little dispute is indicative of the EU's problem as a whole. Thanks to the vagueness of pretty much all EU treaties, and the differing implementation of EU legislation in the various different member states, the range of interpretation of just what the EU is all about is vast - hence the confusion over the new treaty.

The Reform Treaty itself (just like the Constitution before it) is a compromise between a vast range of competing interests scattered throughout the various member states - and as with any compromise-packed agreement, the language is so damned vague that you can interpret it pretty much any way you like.

Yes, in some areas it could be seen to be granting the EU more power, but only if you ignore other areas that could be interpreted as restricting the areas in which the Union can meddle. Yes, it introduces a permanent EU President, but one who can serve for a maximum of five years and who appears to have few real powers. It introduces qualified majority voting that could force Member States into adopting legislation they don’t like, but also brings in opt-outs and greater powers for national parliaments. At the same time, for the first time the new treaty brings in procedures to leave the union - something previously all but impossible.

That Labour were foolish to promise a referendum on the constitution in their last manifesto is not in doubt - it was always highly unlikely to be winnable, no matter how good the constitution. Equally, their ongoing denial of a referendum can seem based on the most desperate of semantic quibbles - the referendum was promised on the Constitutional Treaty, not the Reform Treaty.

So, is there any case to be made on the government's behalf? s it "substantially different"?

The dispute is simply explained - the government are arguing in terms of structure, the Commons European scrutiny committee are arguing in terms of content.

The content of the two is somewhere in the region of 95-99% the same - unsurprising considering that it took so long for the various member states to agree the old constitution, and that pretty much all the reforms are necessary to increase the EU's efficiency and transparency. On this front the committee are entirely correct.

But where the old constitution brought together all the previous EU treaties into one document containing pretty much all the rules and regulations for the running of the union (making it a, er... constitution, in fact), the new one merely amends those same treaties. The practical effect is almost entirely the same, but the structure is indeed substantially different.

Does this make any legal difference? Well, it again depends who you ask...

But what none of this changes is that the new treaty is insanely complicated - even more so than the old constitution - thanks to its amending rather than constitutional nature, to understand it you need copies of pretty much every other EU treaty to hand, plus a sizable knowledge of EU law and procedure.

And so, if even the politicians charged with ratifying the thing can't quite agree on its significance, how have the people got a hope of understanding it? Could a mass referendum vote possibly be taken seriously when the people's decision is about something so complicated that even specialists in the field can't agree?

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