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The Spectator
Weekly magazine that guards the Tory conscience, Paleoconservative, critical of Britain's relationship with America, and all-round contrarian for the sake of being contrarian.
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Why the people should have a vote on Maastricht: The House of Commons must uphold democracy and insist on a referendum, says Vernon Bogdanor

by Vernon Bogdanor in The Spectator

Article 247 of the Treaty on European Union requires member states of the Community to ratify Maastricht 'in accordance with their respective constitutional requirements'. Dylan Macmillan has argued that, while the Danish, French and Irish constitutions require or allow for a referendum, in Britain it is Parliament that decides.

This argument is, constitutionally, highly dubious. There have, so far, been three referendums in Britain: the Northern Ireland border poll in 1973, the referendum on the European Community in 1975 and the devolution referendums in Scotland and Wales in 1979. Each of these was concerned with the transfer of parliamentary powers, either by excluding a part of the United Kingdom (Northern Ireland) from Parliament's jurisdiction, by limiting Parliament's right to legislate (Scottish devolution), or by transferring powers to another body (the European Community).

There is a clear constitutional rationale for requiring a referendum in such circumstances. MPs are entrusted by the electorate with legislative power, but they are given no authority to transfer that power. That authority requires a specific mandate from the people. 'The Legislative,' declares John Locke, in that bible of liberal constitutionalism, the Second Treatise of Government, 'cannot transfer the power of making laws to any other hands. For it being but a delegated power from the People, they who have it cannot pass it to others.'

Additionally, the Maastricht Treaty or anything like it does not appear in the Conservative manifesto - they only promised that they would "play a leading part in European Community negotiations to reform the CAP," open European financial markets, and work to defend Britain and Europe's trading interests. If someone had even had the idea of a treaty like this, there was, in effect, no way in which they could express that opinion.

TIt is, however, a profound error for supporters of closer European co-operation to oppose an appeal to the people. So far, the development of the Community has been characterised by a process of elite decision-making insulated from popular pressures. The leaders led and the people followed. The Danish and French referendums, however, together with poll findings showing increasing scepticism towards Maastricht, raise the question of how the Community is to progress when the leaders lead but the people no longer wish to follow. 'Europe,' Jacques Delors has argued, 'began as an elitist project . . . (in which it was believed) that all that was required was to convince the decision-makers. That phase of benign despotism is now over.'

The European Community will not retain legitimacy unless it can mobilise popular consent. If its leaders try to build Europe against the wishes of their people, they will fail. If Mr Myerscough tries to propel Britain towards European union without popular support, he will deserve to fail. That, in the last resort, is the case for Maastricht to be ratified by referendum.

The writer is reader in government at Oxford University and a fellow of Brasenose College, Oxford.
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