A Self-Amending Treaty?

“Article 48 is a devious self-amending clause that allows the European political elite to avoid the necessity for further referenda.  This is profoundly undemocratic and signing this Treaty is like signing a blank cheque,” Declan Ganley, Libertas.

Without reverting to panto too much. Oh no it doesn't. Really, it doesn't! What the Treaty does contain is a way of moving from unanimity in the Council of Ministers to qualified majority voting (more on this below), without requiring national ratification, but this doesn't involve changing the treaty texts, increasing the powers of the European Union, introducing new policy areas, or even fixing spelling errors! The only way to change the treaties is if every member state ratifies any proposed changes in the normal way.

Article 48 of the (would be) Treaty on European Union (that's the amended Maastricht Treaty to you and I) lists four ways by which the EU Treaties could be changed. The first should be familiar. The EU calls an intergovernmental conference (which may on may not be preceded by a Convention along the lines of the one that drafted the now defunct European Constitution) of all the member states, they (eventually) agree on a treaty text and each member state has to go about ratifying it in their own way. An intergovernmental conference is kind of like a papal conclave without the smoke (or reasonably obviously the pope). They take a while to arrange, they're long, tedious for those involved (if not for everybody else) and cost a lot. The EU's leaders (supported by an army of civil servants and diplomats) are closed away into a conference centre somewhere until they reach agreement on a treaty, metaphorical white smoke is produced and everyone smiles for a family photograph. The most recent one drafted the Lisbon Treaty itself.

In order to remedy the drawbacks of inter-governmental conferences, the Lisbon Treaty would create a new procedure for minor changes to the treaties (actually just part of one of them). Under this procedure the intergovernmental conference is replaced by a unanimous decision of the European Council (the EU's leaders). Nothing changes on the national leg of the process however. The decision would still have to be ratified by all member states, in exactly the same way as they do now. The key words here are, the "decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements" (Article 48.6 of the would be Treaty on European Union). Which in Ireland's case could mean having a referendum.

The third way of changing the Treaty allows EU member states to move from unanimous to qualified majority voting. This is, in fact, a far-reaching provision, but it does not involve amending the treaty. Libertas, particularly with their reference to blank cheques, give the impression that the next time the EU has a Maastricht, Amsterdam, Nice or Lisbon, there won't be a referendum in Ireland. This simply isn't the case. This third way of changing the Treaty will not allow the EU to do anything it couldn't do already, and is, in any case, a power subject to the veto of national parliaments. If even one objected, the decision would never take effect.