The Tories' Clause Four moment

David Cameron did well in yesterday’s Commons tussle with Gordon Brown over the EU constitutional treaty. But the danger to the Tory position is evident from the way those exchanges have been received. People's eyes are already glazing over from the sheer complexity of it all.

The government’s dissimulation over this treaty is simply astounding. They are misleading the public virtually with every breath they take. They shamelessly claim that it’s not the same as the constitution mark one when it’s 90 per cent the same. One European leader after another has acknowledged that it’s virtually the same thing; the government denies these leaders have said this (as Peter Hain so brazenly did in response to me on BBC TV’s Question Time last week). They then flip the argument over by claiming that their ‘red lines’ will protect Britain from all the dangerous provisions of the treaty which no longer exist because it’s not the same. But as has been pointed out, these red lines aren’t worth the paper they are written on.

Take Brown’s assertion yesterday that the UK has secured a protocol which makes the Charter of Fundamental Rights non-justiciable in the English courts because it ‘does not extend the ability’ of the European Court of Justice or the English courts to find English law incompatible with the Charter. Leave aside for the moment the not uninteresting fact that the government’s position on this has slid from claiming that the protocol is an ‘opt-out’ to the coy admission that it is merely a ‘clarification’. Whatever it is, it’s worthless.

That’s because it conflicts with the general and overarching principle of the EU that its provisions apply to all member states, which have an obligation to abide by them. Does this protocol take precedence over that overarching principle? Interesting legal question and one that would have to be decided by a court. And which court would that be? Why none other than the same ECJ whose powers are allegedly fettered by the protocol; the same ECJ which over the years has itself unilaterally expanded so hugely the powers of the EU because it sees itself as the judicial arm of the ideological euro-federalist project. In deciding whether the UK protocol was worth the paper it was written on, therefore, the politicised ECJ would be acting as judge and jury in its own cause. And this is Brown’s ‘red line’!

The other red lines are similarly worthless. Our so-called opt-in over justice and home affairs crumbles upon inspection and in any event will be obviated within five years. Brown says the government will not agree to any more constitutional changes during this parliament and the next. Big deal! The treaty gives the EU the power to produce whatever changes it wishes without having to call an intergovernmental conference, thus leaving what remains of our powers of self-government at the mercy of temporary parliamentary majorities. And that’s before we even get to the loss of all the vetos and the areas of ‘shared competencies’ which mean kissing goodbye to our ability to run our own country. Above all, this treaty creates a constitutional chimaera, a bureaucratic state with its own legal personality to which it explicitly requires this country to subordinate its own national interest. That is simply insupportable.

So this brings us back to the politics of this thing. The treaty is about to be dissected in Parliament line by not so red line. The bankruptcy of the government’s position will undoubtedly be exposed day by day during this process. We don’t know how this will play out nor how it will end. Maybe the country will be inflamed every day by discussion of passerelle clauses and competencies. Maybe large enough numbers of Labour MPs will remember what democracy entails and inflict damage. Maybe the Liberal Democrats will be locked in a Commons broom cupboard for 30 days. But it’s a fair bet that the public will quickly become numbed by the detail, and that Brown will simply railroad this thing through the Commons with the usual brutality.

In the face of this, the Tories now need substantially to raise their game. They risk being swept away in this tidal wave of mind-bending arcania and parliamentary process. Crucially, they need to tell the country now that if this constitutional treaty is ratified without a referendum, they will still promise to hold a referendum on it after ratification. They should tell us now that it will be an election promise. To the objection that this would entertain the possibility of breaking a treaty, they should say that ratification in these circumstances would be constitutionally improper, that no parliament can bind its successor and that the need to preserve independent British self-rule overrides any treaty obligation.

William Hague’s current position is that he is not going to talk about what the Tories would do after ratification because he wants to concentrate on opposing this treaty. What he’s worried about is that, while the likes of Ken Clarke and Michael Heseltine have not gone to war over the Tories’ current referendum pledge — presumably because they assume Brown will force the constitution through — they would go ballistic were the Tories to open up the post-ratification can of worms, thus enabling Brown to play the ‘Tory split’ card.

This caution is misguided. The Tories’ consistent mistake is to see themselves through Labour party eyes. We’ve seen from recent events that this grossly misreads the reality of public opinion. Brown was unable to deploy his ‘lurch to the right’ broadsides because — to the Tories’ astonishment — the public was already camped on this very territory, impatiently waiting for a political party to join them. So it surely is -- with knobs on -- over Europe. The public is relatively muted on the subject not just because it’s eye-glazing stuff but because, most crucially of all, they assume that the constitution is a done deal. They no longer have any faith that any political party will act in their interests.

But below the radar, they are aghast. If the Tories were to say now, loud and clear, that this country has not fought so painfully throughout the centuries to keep itself free and independent in order to throw it all away now in a bloodless surrender to Brussels, and that therefore the people will be offered the chance to decide whether they wish to stay free or become a hologram state even if —particularly if —Brown goes ahead and sells out his country, they would find that the people would be with them. After all, they can’t now say the issue is nothing less than the loss of Britain’s capacity for self –government and then say that’s something they will just have to learn to live with, without making themselves look ridiculous. And if those prehistoric ex-big beasts Clarke and Heseltine start beating their mangy chests, Cameron should simply say to them — you are the past.