The European Union Bill is one of those strange populist beasts announced by the Conservative Party in the run-up to last year’s general election, aimed squarely at keeping Britain’s eurosceptic right from abandoning them for the UK Independence Party (following David Cameron’s admission that he was not planning to hold a referendum on the Lisbon Treaty after it had already entered into force, despite what many eurosceptics had hoped/expected).

In short, this new bill promises to force the government to hold a nationwide referendum on any future transfer of sovereignty from Britain to the European Union – trying to put a referendum lock in place so that no future government could sign the UK up to a treaty like Lisbon (an act that caused much outrage among eurosceptics – not least because all three main parties had promised a referendum on the old European Constitution, on which the Lisbon Treaty was heavily based).

Of course, as no parliament can bind another, all any future British government that wanted to avoid a referendum would have to do is revoke this Act – if the Bill passes into law.

On top of that, the current government has realised that to hold referenda on *every* transfer of power to the EU – no matter how small – would be cripplingly expensive and inefficient, and so has opted to leave it up to ministerial discretion whether or not a transfer of power from Westminster to Brussels is significant enough to warrant a referendum. This, unsurprisingly, has greatly angered many hard eurosceptics.

Cunning Cameron

Yet despite the protestations of the eurosceptics, from British perspective this is actually a very canny move on the part of the current government – because if passed, it will instantly give the UK a far, far stronger bargaining position in the European Council, as well as throughout the rest of the EU as a whole.

The British government doesn’t like something being proposed? Whereas now the Prime Minister risks annoying and alienating his European allies by threatening to use his veto, he would now simply say “Sorry, chaps – we’ll never get it past the public in a referendum.”

By this simple piece of legislation, David Cameron will have effectively managed to have secured Britain’s continued ability to veto any EU legislation she doesn’t like – even in areas governed by Qualified Majority Voting – by creating a new line in the sand that the government can always profess to be out of their hands, thus (in theory) helping to maintain diplomatic relations in a way that would simply be impossible by the use of a ministerially-decided veto.

You’ve got to admire it – it’s very cunning. If just a little bit cowardly…

Constitutional correctives

A good overview of the first reading debate in the House of Commons (which took place on 11th January) can be found over at Connor’s place, with plenty of focus on the proposed amendments by the veteran Tory eurosceptic MP, Bill Cash.

These amendments were – thankfully – soundly defeated, with just 39 MPs voting in favour. As such, they have already become little more than a minor footnote in British/EU political history – but considering Cash’s prominence in eurosceptic circles (he led the Maastricht rebellion against John Major for starters), they can serve as interesting insights into just why (some) eurosceptics are so worried about the EU.

Bill Cash vs the British Constitution

Connor summarises the intentions of Cash’s amendments quite neatly – though his post is worth reading in full for some interesting, thoughtful observations:

these amendments were aimed at creating a version of parliamentary sovereignty that could not be interpreted or challenged by the courts (or, perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty beyond the reach of the courts). Parliamentary sovereignty is the UK legal doctrine that parliament has supreme legislative authority, and its Acts cannot be challenged by the courts – it can do whatever it wants, except limit the power of its successors (i.e. the next elected parliament(s)).

Nice summary – but I have one (important) quibble:

“perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty”

It was sadly not even that.

What Cash was trying to do with his amendments was to revert the idea of parliamentary sovereignty back to one (highly debatable) interpretation of the concept that hasn’t been (even arguably) valid since Edwardian times.

By his own admission, he wanted to push the clock back 40 years to before the passing of the 1972 European Communities Act, through which the UK joined the EEC and accepted the supremacy of European Law (in some areas) over British law.

In reality, he was trying to roll back the clock on the British constitution by the best part of a century – to before the creation of NATO, the WTO, the Council of Europe the UN and more, all of which have (to a greater or lesser extent) curtailed the ability of the House of Commons to do what it likes.

What is Parliament?

Cash also – seemingly deliberately – fails to note that Parliament is not just the House of Commons, as he repeatedly appeared to be stating throughout his speech: It is *both* Houses of Parliament, the Lords as well as the Commons.

In his amendment, Cash appeared to want to establish, by statute, not merely the supremacy of Parliament, but the supremacy of the House of Commons.

By repeatedly attacking “radical judges” and “Common Law interpretations” of the status of parliamentary legislation, he was effectively arguing that nobody is entitled to overrule the House of Commons but the House of Commons itself. (We’ve already gone a long way down that route thanks to the Parliament Acts of 1911 and 1949, which both enable the Commons to overrule the objections of the Lords in certain circumstances – Cash’s proposed amendments, however, would have set a precedent that could easily have gone even further.)

In this, at least, Cash comes closer to the mark than many eurosceptics, who frequently attack “European judges” for forcing Britain to comply with internationally-agreed laws while seemingly not realising that British judges can do much the same thing. Yet you rarely hear anyone openly (as Cash did repeatedly throughout his speech) attack the British judiciary’s right to interpret British law – which is, after all, the whole point of the judiciary…

(As a related aside: It never ceases to amaze me how British critics of non-British systems of law, regulation and government so often fail to follow the age-old maxim of “put your own house in order“. Yes, European Commissioners are unelected – but neither are British Cabinet ministers; yes, many EU laws and regulations enter into force without being scrutinised by elected officials – but so do British statutory instruments; yes, the EU’s accounts have repeatedly failed to be signed off – but neither would the UK’s accounts if they were subject to the same criteria to be passed; yes, it’s arguable that too many powers have been centralised in Brussels – but too many have also been centralised in Westminster; yes, the EU has lots of bureaucrats – but the UK has many, many times more, etc. etc. ad infinitum… Unless your own actions are blatantly better, don’t be surprised if those you are criticising don’t take you too seriously – cf. China’s response to American criticisms of the imprisonment of political prisoners while Guantanamo Bay continues to exist, or Russia’s failure to pay attention to British criticisms of the 2008 invasion of Georgia after Britain’s role in the 2003 invasion of Iraq.)

What is Parliamentary Sovereignty?

Cash also singularly failed to realise that there’s a strong distinction between the idea of *Parliament* being sovereign (as he argues passionately should be the case), and the *actual* case, which is that sovereignty lies with “the Crown in Parliament”.

A seemingly subtle distinction, this, but a vitally important one: Parliament has *never* been sovereign – sovereignty *still* lies with the monarch, even after the Civil War, Glorious Revolution, Bill of Rights, etc. etc..

This is most obviously, if largely symbolically, expressed through the fact that the Queen still has to give the royal assent to all Acts of Parliament before they can become law – Parliament lacks the power to create new laws without the approval of the Sovereign.

This is also strongly indicated in the law courts – if the state prosecutes someone, it is expressed as “Crown vs”, not “Parliament vs”.

Likewise, the government is always “Her Majesty’s government”, and the Prime Minister is still not elected – either by the people or by Parliament – but is *appointed* by the monarch in his/her role as Sovereign. (The last British Prime Minister, Gordon Brown, was frequently attacked by the Tory right for being “unelected”, having succeeded Tony Blair to the post midway through a parliamentary term. But this is not a rare event – Major, Callaghan, Douglas-Home, Macmillan, Eden, Churchill, Chamberlain, Baldwin (twice), Lloyd-George, Asquith and Balfour all became Prime Minister without a general election having been held – and that’s just the 20th century!)

Of course, the monarch no longer directly exercises most of the crown’s executive/sovereign powers, and has – for a good three centuries – mostly allowed the government of the day to run things as it sees fit. It could be argued – and many have – that the monarch’s powers are now merely symbolic, and that in practice the Sovereign is no longer sovereign, having ceded those powers to his/her representatives in Parliament.

But until that convention is actively, openly challenged (as Cash’s amendments arguably sought to do), by the wonderfully obtuse rules of the British constitution nothing has *technically* changed, even though many things may well have changed in practice. And when it comes to points of law, technicalities can often be vital. A new constitutional convention may well have been set by the crown’s failure to veto Parliament since 1708, stating that the right of veto no longer exists (thus meaning that the crown is no longer Sovereign) – but until a monarch tries (and fails) to veto parliament again, we simply won’t know.

Cash the constitutional radical

Needless to say, both of these (significant) misinterpretations of the way the UK works threatened some fundamental alterations of the British constitution when the person who believes those misinterpretations is in a position to attempt to introduce amendments to British statute law – and is eloquent enough to sound convincing.

In other words, while professing to be a constitutional conservative – and quite probably even believing that he is to his core – Bill Cash’s proposed amendments were in fact infinitely more radical than pretty much everything he was proposing them to prevent.

And that’s before we even start on his truly dangerous attempt to exempt Acts of Parliament from judicial scrutiny/interpretation – effectively putting Parliament in the position enjoyed by the monarch prior to the Civil War (a state of legal immunity/infallibility which was in large part responsible for Parliament’s revolt in the first place – the Commons arguing that *no one* should be above the Law, including the Commons themselves).

Add that attack on long-established legal principles on top, and Cash’s amendments would have amounted to one of the most radical revolutions the British constitution has ever seen. Certainly far, far more radical than anything contained in Lisbon *or* Maastricht.

Parliamentary absolutism

Cash was, in short, arguing for the reintroduction of *absolute* sovereignty – albeit absolutism based upon an elected House of Commons rather than an inherited crown.

The reason? Cash holds with what I like to think of as the *nice* (mis)interpretation of the British constitution – the interpretation held by most of the better-educated eurosceptics I’ve talked to. Students of history or political theory will recognise it as the theory of the Social Contract.

This view holds that the people of Britain are ultimately sovereign, having voluntarily ceded power first to the monarchy, then (following the Civil War and, especially, the Glorious Revolution) to Parliament. It holds that today, the people’s election of MPs to parliament shows their willingness to continue to cede power to Parliament, which exercises the people’s sovereign will on their behalf.

Sound familiar? Yep – it’s extremely close to Cash’s interpretation of “the Crown in Parliament”, which holds that the crown has ceded power to Parliament, which exercises the monarch’s sovereign will on their behalf – only this sees sovereignty passing to Parliament from the bottom up, rather from the top down.

Where do the people fit in?

What is particularly interesting is that, despite professing to be pushing for parliamentary sovereignty to be entrenched, at no point did Cash call for the concept that the people are sovereign to be entrenched – despite using the Social Contract theories about the people’s sovereignty to justify his claims about the sovereignty of Parliament. Cash was not interested in returning power to the people, but to the politicians.

Proponents of the Social Contract theory of the British constitution frequently – while being extremely well intentioned – fail to acknowledge that the Social Contract is not, nor ever has been, an actual document. Nor did the idea of the Social Contract precede the supposed initial transfer of power from the people to the monarch – nor, indeed, from the monarch to an elected government.

The Social Contract was, and always has been, an attempt to justify rebellion, or the right to revolt. Its history tells you all you need to know: First developed by Grotius in the Dutch Republic in the early 17th century following the Dutch Revolt, then developed by Hobbes (partially accidentally) following the British Civil Wars, then by Locke in Britain following the Glorious Revolution, then by Rousseau during the rising discontent of the absolutist reign of Louis XV of France – with Rousseau’s ideas and justifications later being adopted by the leaders of the French Revolution who brought Louis to the guillotine.

The Social Contract has never been the basis of government – as much as its proponents have always wanted it to – it has only ever been an excuse for usurpation.

What is sovereignty?

What *actually* grants the right to govern is simple and obvious: It is the ability to govern. That’s it.

I could publish a statement tomorrow declaring myself to be Emperor of Europe, announcing a broad range of new laws, and demand tribute from every single person in the EU. Would it mean anything? No – because I don’t have the ability to enforce those laws or the payment of that tribute.

Likewise, does an assertion that Parliament, rather than the EU, is sovereign change anything if Parliament is unable to alter EU legislation?

And here lies the rub: The sole purpose of EU legislation and regulations is intended to be to harmonise systems across the EU. If Britain were to assert her independence by rejecting more and more aspects of EU legislation and regulations, Britain would increasingly become out of synch with the rest of the EU.

A few opt-outs? Not a problem – and Britain already has quite a few (most notably on joining the Euro). But a systematic rejection of any further harmonisation – as the hardline Tory eurosceptics want? This would effectively be a declaration that Britain will no longer be participating in the EU.

Because as much as Britain may be able to claim sovereignty within her own borders, to assert her will in France, in Slovakia, in Denmark, in Finland, or in Spain would be to claim sovereignty over *those* countries as well.

By threatening to reject any further EU integration in the name of British sovereignty while still professing a desire to remain a member of the EU, Britain would be restricting the sovereignty of every other EU member state – much as the UK is *already* restricting the sovereignty of Ireland by refusing to join the Schengen Zone (which in turn has prevented Ireland from joining due to the British ultimatum: Schengen or the Common Travel Zone?)

Thanks to the very nature of the EU’s aim of harmonising European economies, a pick and mix approach such as that proposed by the (non-withdrawalist) proponents of the European Union Bill is going to be extremely difficult to put into place – and I say that as a long-time advocate of a multi-tier EU.

You cannot maintain the Common Market without common rules and regulations – which apply to all. No one should be above the law.

Does this mean that Britain’s sovereignty has been limited by EU membership?

Yes and no. Let’s use the idea of the Social Contract to explain why, as so many who argue for more British sovereignty seem to like it so much:

According to Social Contract theory, way back in the mists of time, the people ceded their sovereignty to the monarchy because they realised the advantages the protection of the monarch could bring – this despite the downsides of now having to pay tribute, serve in the militia and so on.

Later on, that sovereignty passed to Parliament because Parliament could bring even more benefits than the monarch – better laws, better regulations. More restrictions again – taxes have gone up repeatedly since Parliament took charge – but the advantages were seen to outweigh the disadvantages. If they weren’t, then the British parliamentary system of democracy would not have survived, and we would have either reverted to monarchy – as we did in 1660 after the failure of the Cromwellian republic – or come up with something better.

Indeed, the whole point of democracy is that we are *constantly* trying to come up with something better – that’s why we have new minor laws and regulations enacted every day, and change governments every few years to allow new ideas to be tested.

Now, in turn, the governments of nation states (to whom the people have ceded their sovereignty) have come to see the advantages of, in turn, passing some of *their* sovereignty to even higher bodies, which can transcend national boundaries to provide greater advantages to all. This is not just apparent in the EU, but also in NATO, the UN, the WTO, the African Union, ASEAN (in South East Asia), CARICOM (in the Caribbean), SICA (in Central America), CCASG (in the Middle East), EAEC (in Central Asia), SAARC (in South Asia), UNASUR (in Latin America), and countless other bodies – even the federal United States of America itself counts, albeit a couple of centuries earlier.

Yes – I’m adopting a teleological approach *and* the Social Contract (both of which I despise as ahistorical nonsense) to argue that passing sovereignty to a level above the national is a natural next step in society’s evolution.

More seriously, I’m arguing that the advantages of EU membership far outweigh the advantages of withdrawal. That, while we could leave – just as we could go back to absolute monarchy – it is not in our interests to do so.

British sovereignty and the EU

But – and this is crucial – Britain retains the right to reclaim the sovereignty she has pooled at EU (or UN, or NATO, or WTO, or whatever) level any time she likes. As former Foreign Secretary Malcolm Rifkind succinctly put it in the European Union Bill debate:

“is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.”

If Britain doesn’t like it, she’s still free to leave any and all of her international treaty obligations. She’s also free to try to persuade other countries to leave with her, or to set up her own alternatives (as she did with EFTA back in 1960, having missed the boat with the initial launch of the EEC).

Britain’s ability reclaim *total* independence and sovereignty is not constrained in the slightest by EU membership, or by membership of NATO, the UN, the WTO, or whatever. We can go the way of North Korea any time we like – principles of self-determination are firmly entrenched in international law.

But what Britain *can’t* do is guarantee that *other* countries will be happy to play along in the way that Britain wants if Britain decides to throw her toys out of the pram.

What Britain also can’t do is expect other countries to always agree with her. We can’t be members of just the kind of European Union that we would like it to be – we can only be members of the EU that we’ve got (created by compromise and slow evolution over 60-odd years of negotiations between more than two dozen countries), while continuing to try to convince everyone else that our ideas are worth adopting.

There is no possibility – no matter how much many may want it – of Britain simply being a member of the Common Market without any of the EU rules and regulations that are now an intrinsic part of that Common Market. This is no more possible than me owning a pet Dodo. We missed our chance.

And if she knows what’s good for her, what Britain *shouldn’t* do – within the current EU set-up – is attempt to impose her will on other EU member states through the threat of veto or referendum.

Use vetoes and referendums to protect her own interests? By all means. But not to force others to comply with her wishes in ways that will negatively affect them.

If Britain wants to remain a member of the EU but in doing so prevents further European integration from happening, she will be destroying the EU – forcing it to stay as something Britain wants, not what other EU member states may want. And this not by negotiation, but by an obstinate, childish refusal to either compromise or have the decency to leave and let others get on with it. It’d be the diplomatic equivalent of puncturing the football the other children are playing with because no one wants to play cricket with you.

In short, my fear is that in attempting to assert British sovereignty, the European Union Bill threatens to undermine the freedoms – the sovereignty – of other EU member states, in the process building resentment against Britain that would only serve to undermine British interests.

From five years ago (originally published 4th February 2005) – a repost seemed appropriate as someone asked about my views on European Identity just the other day, soon after a user purporting to be Jurgen Habermas cropped up on Twitter. Despite being five years old, much still stands (update: except the links, which have now been updated where appropriate). Depressingly, the debate has barely shifted:

An interesting short article on the lack of any real sense of European identity gives a nice overview of some of the problems facing the EU, and of the possible outcomes of the proposed constitution, and follows on nicely from some of my recent musings:

In Spain, there is much controversy over whether the Basque people should remain Spanish citizens or whether they should have their own state. In the UK a recent survey of teenagers found that many saw themselves as English, Scottish or Welsh rather than British. An Italian from Milan might find more in common with a Parisian than with a Sicilian compatriot. Yet despite this, a core set of European cultural, political and social values can be divined.

The article also points to another which highlights the take of Jurgen Habermas (he of “public sphere” fame) on the European project – a take which can easily provoke both sides of the argument:

Germany’s thinker de rigueur wrote that Europe’s core states could put an end to Europe’s stagnancy, sooner or later drawing in the remaining states which would be unable to resist. Separatism, however, had to be avoided. The avant-garde core Europe cannot consolidate into a miniature Europe but, as so often, must be the locomotive.

This reminded me of an article Habermas wrote a few years back on why Europe needs a constitution, which is well nigh essential reading for anyone interested in current debates about what the EU is, was, and should be in the future. I may return to some of the points it raises again, as even though lots has changed since it first appeared (it was written just pre-September 11th 2001), it still raises many valuable points. From the introduction:

There is a remarkable contrast between the expectations and demands of those who pushed for European unification immediately after World War II, and those who contemplate the continuation of this project today – at the very least, a striking difference in rhetoric and ostensible aim.

While the first-generation advocates of European integration did not hesitate to speak of the project they had in mind as a “United States of Europe”, evoking the example of the USA, current discussion has moved away from the model of a federal state, avoiding even the term “federation”.

Larry Siedentop’s recent book Democracy in Europe expresses a more cautious mood: as he puts it, “a great constitutional debate need not involve a prior commitment to federalism as the most desirable outcome in Europe. It may reveal that Europe is in the process of inventing a new political form, something more than a confederation but less than a federation” an association of sovereign states which pool their sovereignty only in very restricted areas to varying degrees, an association which does not seek to have the coercive power to act directly on individuals in the fashion of nation states.

Does this shift in climate reflect a sound realism, born of a learning-process of over four decades, or is it rather the sign of a mood of hesitancy, if not outright defeatism?

The contemporary substantification of law means that constitutional debates over the future of Europe are now increasingly the province of highly specialized discourses among economists, sociologists and political scientists, rather than the domain of constitutional lawyers and political philosophers. On the other hand, we should not underestimate the symbolic weight of the sheer fact that a constitutional debate is now publicly under way.

As a political collectivity, Europe cannot take hold in the consciousness of its citizens simply in the shape of a common currency. The intergovernmental arrangement at Maastricht lacks that power of symbolic crystallization which only a political act of foundation can give.

In last year’s Irish Lisbon Treaty referendum, turnout was 53.1%, with 53.4% voting No and 46.6% voting yes.

That’s 862,415 No voters – 28.3% of the Irish electorate, and just 0.17% of the EU’s population – holding up the ratification of a complex document that was the result of the best part of seven years’ worth of detailed negotiations between the governments of 27 states.

And yet, the opponents of the re-run referendum have been telling us for much of the last year, to ask the people of Ireland to vote again would be undemocratic.

Because, of course, allowing people *more* chances to express their views through the ballot box is precisely the opposite of democracy, right? And that’s before we even note that many of the people *opposing* a second referendum in Ireland have long been arguing that the UK’s 1975 referendum on EEC membership should have been re-run…

In other words, democracy is only democracy when you get the result you want. (The advocates of a No vote, on this point at least, are of entirely the same opinion as the pro-Lisbon EU elites who pushed the Irish government into asking its people to vote again.)

Although there are some good arguments to be made for voting No to Lisbon (it is, after all, a fairly shoddy compromise that no one’s really happy with), the debates in the run-up to last year’s referendum were characterised by seemingly deliberate propagation of lies and distortions by many on the No side.

Lisbon is easily the most confusing and impenetrable EU treaty ever tabled (and that’s saying something) – and the No campaigns understandably took full advantage of this fact. If you have any sense, you wouldn’t sign a legal document without having read and understood the small print – and yet that’s effectively what the Irish people were being asked to do (which is a large part of the reason why I still reckon that referenda on such complicated international treaties are a very silly idea).

But not satisfied with making just this sensible point, the No campaigns went a bit mental, pulling out a disparate series of outlandish claims – Lisbon will force strongly Catholic Ireland to introduce abortion clinics, to abandon its neutrality, to drop its minimum wage to just a euro eight-four an hour, etc. etc. etc.

Pretty much all of these claims were unfounded, stemming mostly from the vague nature of the treaty itself – it’s so very vague that in places it *could* be interpreted to be saying just about anything. Compromises – especially ones of international diplomacy – tend to be made in as vague language as possible to keep all parties happy, and to allow maximum leeway to those parties who are slightly less happy with the end result than others. Lisbon being in addition a legal compromise, the intention has always been that the details will be interpreted by the governments of the member states (and at last resort the judges) as and when disputes of interpretation crop up – just the same as pretty much any new law.

All of these unfounded No-camp claims also clouded the real issues at the heart of the treaty – important, significant issues that really did deserve to be looked at in detail by the Irish people before they cast their votes.

This time around, the No camp distortions having mostly been shown to be just that, debates have been rather more rational – instead of focussing on invented bogeymen (although some attempt has been made to resuscitate the same discredited claims as last time), much more discussion has centred around the key issue: is Lisbon good for Ireland; and would *not* ratifying the treaty have negative effects?

A far more sensible situation all round – even if the key issue of Lisbon’s impenetrability hasn’t been solved, and so most Irish voters were still little the wiser about what precisely it is they were voting for or against yesterday, at least the arguments have mostly been over things it *actually* contains rather than things that its opponents *claim* it contains.

Though results are as yet to be finalised – it looks as if turnout is down only a little, to around 50%.

And yet the extra year that the Irish people have been given to think about the implications of Lisbon – and to see that many of the claims of the No camp were unjustified – has seen a significant change in the Yes vote, with early indications suggesting c.60% voting in favour this time (according to the BBC).

Last time, based upon mostly false claims, the No camp managed to convince 862,000 Irish voters to back them.

This time – based on those vague initial results above – the Yes camp appears to have convinced around 915,000 to approve the treaty.

Democracy works based upon debate, discussion and deliberation of the issues, with the option with majority support after this process carrying the day. Democracy works by returning periodically to the people to allow them to re-think and to change their minds. For a healthy democracy, the more debate, discussion and deliberation the better – and the more chances for the people to change their minds, the better.

Last year, the genuine issues surrounding Lisbon were not really discussed in Ireland in the run-up to the referendum – only the distortions. The result was a No. This year, the debate has been based more in reality. The result is a Yes – and not only a yes, but a rather more convincing Yes than last year’s No.

So what now for the No-supporters’ claims that this whole process has been undemocratic? Are the people of Ireland wrong now, after being right last time? Were the No voters that secured the Treaty’s defeat last year – after a far shorter period to make up their minds – better-informed than the larger number of Yes voters this time, who had been given far more time to weigh up the pros and cons?

The people have spoken. Again. And they will speak again in the future, quite possibly changing their minds again and again and again and again. That’s how democracy works. You’re not happy with the result of a vote? Fine – make sure that next time your campaign is more convincing.

Short version? In any democratic society, politics is not a battle, it’s a war. Win some, lose some, but the fight always goes on.

(Of course, the Yes voters are still only 30% of the Irish electorate, and still only 0.18% of the EU’s population. They are still not a majority by any means. But they are, at least, a larger proportion than the No voters – in both referenda. That’s how democracy works. The majority? Well, it would seem that the majority of Irish voters simply don’t care one way or the other.)

8pm update: I was being too cautious. Final tally? 67% Yes on a turnout of 58% – turnout up, Yes vote more than two-thirds. Approximate calculations put that as about 1,180,000 Yes voters to just 584,000 Nos – last time it was 752,000 Yes, 862,000 No. That’s a pretty insane swing.

A comment I left over at The Devil’s Kitchen a couple of months back that I recently stumbled upon bears resuscitating as a quick post in its own right, as debates about the EU resurface ahead of the re-run Irish Lisbon Treaty referendum:

It’s impossible to do a cost/benefit analysis of *all* EU laws – that doesn’t mean you can’t do a cost/benefit analysis of individual new laws before passing them.

You can, after all, work out the likely impact of a law liberalising the market for product category x on related industries a, b, c, (etc.) and even make an educated guess about the overall impact that this law may have on the economy as a whole.

But when it comes to the economy you can never understand everything – if we’ve learned nothing else in the last 12 months, we’ve learned that. Hell, with something as complex as a continent-wide economic system, there are so many other factors at play, though it may be possible to make an educated guess about the impact of a piece of legislation (enough to judge if it’s going to be beneficial, at any rate), you’ll never be able to track *all* of its effects – countless other things will be affecting individual parts of the economy in countless different ways, from other bits of EU and national legislation (which still often overlap) through local levels of trades unionism, consumer spending patterns, passing fashions, local infrastructure, and so on and so on.

In other words, to be able to put an actual monetary figure on the costs/benefits of EU legislation *as a whole*, you’d first need to work out a system for tracking all the workings of the entire European economy (or, at the very least, the entire economy of the individual member state you want to study). Because without complete understanding how an economy works both at macro- and micro- levels, it is impossible to judge how introducing variable x might affect it – because who’s to say it’s not actually variable b, h or z instead if you haven’t also studied their influence?.

So *any* claims about the costs OR benefits of the EU must be nonsense. Because the only way we could actually tell is if a) we understood the economy of Europe inside-out (which we don’t), and b) we had a control sample of a Europe in which the EU never came into being to which we could compare our findings.

So although I feel that the EU has done more good than harm to both the British economy and the economy of Europe as a whole, there is no way that I can prove that. There’s also no way that anyone of a more eurosceptic bent can prove that the opposite is true. I could point to individual benefits, they could point to individual costs – we could add up more and more of each until we have a wealth of evidence and can start chucking around figures like 200 or 600 billion. But we’d still have only scratched the surface.

This is not a flaw in the way the EU works, it is just a consequence of the EU’s continent-spanning economy (which exists in a world that has become increasingly globalised, and so increasingly economically complex and volatile over the last fifty years) being an incredibly, vastly, inconceivably complicated system that no one can ever fully understand.

The Lisbon Treaty, of course, is not one single new bit of legislation (unlike its predecessor, the Constitution a sprawling mess of a document, but at least a relatively coherent one) – it is instead a vast number of often tiny, minor amendments to a whole array of earlier treaties and bits of legislation, affecting almost all areas in which the EU currently functions.

This makes doing a cost-benefit analysis of the Lisbon Treaty (both economic and social costs/benefits) just about as impossible as it is to do one of the EU as a whole. And as so much of what Lisbon does is kept in deliberately vague terms (it is a compromise document drawn up by 27 governments, after all), and as parts of it are arguably self-contradictory, the task is made even harder.

In other words, the proof of the pudding is in the eating. Lisbon’s effect on the EU and on individual EU member states will be determined by how it is interpreted by the Commission, Council, Parliament and member states after it comes into force far more than it will be by what it actually says. Unlike the Constitution, which attempted to lay down hard and fast rules, the Lisbon Treaty (foolishly, in my books) pretends to be laying down rules, but is actually more like a series of guidelines, to be solidified or modified over the coming years.

However, one major shift is the greater emphasis on the power of the European Parliament and of the parliaments of the member states to have a say in future EU legislation. Pass the Lisbon Treaty, and this ongoing process of interpretation and modification will have far more input from elected representatives than the alternative – which is not to make do and carry on, as some have suggested, but yet *another* round of negotiations for new EU frameworks. Another round of negotiations that will, once again, be dominated by input from the unelected bureaucrats, government officials and pressure-groups that have so dominated all previous such processes.

Is it undemocratic to force Ireland to vote again on a Treaty that they’ve already rejected? Well, yes. But through this bit of undemocratic second-chancing, the people of Europe as a whole may end up with far more ability to have a say in the inevitable future rounds of EU reform and, just perhaps, begin to shift the thing closer towards what they actually want.

So, is the Lisbon Treaty a bit rubbish? Yes. But it’s better than what we’ve got, and better than the likely alternative. Hard to be enthusiastic about, hard to actively support – but necessary if you want an EU that more closely matches the wishes of the people, even if it might come into force by forcing the people of Ireland to think again.

Another small hurdle for the much-beleaguered treaty to overcome:

the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union) infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law (Grundgesetz – GG) insofar as the Bundestag and the Bundesrat have not been accorded sufficient rights of participation in European lawmaking procedures and treaty amendment procedures. The Federal Republic of Germany’s instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force.

And so the ratification of the Lisbon Treaty is to be yet further delayed while Germany rejigs a few bits and pieces of its own constitution to accommodate it. Which, depending on how long Germany takes to sort this out, could mean that the treaty is delayed long enough for there to be a Conservative government in the UK before Lisbon has been fully ratified, which would mean a UK referendum, which would mean Lisbon’s rejection by Britain and yet another crisis for the EU. Fun fun fun.

There’s lots more in this genuinely fascinating ruling that is pretty much guaranteed to be seized upon by those of an anti-EU persuasion – even though the real issue here is as much Germany’s strict constitution as any problems with the expansion of EU powers. The ruling also helps clarify a number of issues, as well as point to more issues of the EU’s structure and identity that really need to be clarified by the EU itself.

First up, the EU’s crisis of identity and purpose – as I’ve noted many times, the EU itself doesn’t know what it is for, so little wonder it’s got a rather confused structure:

The structural problem of the European Union is at the centre of the review of constitutionality. The extent of the Union’s freedom of action has steadily and considerably increased, not least by the Treaty of Lisbon, so that meanwhile in some fields of policy, the European Union has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.

Note, dear eurosceptic friends, that “analogous to a state” does not mean “is a state” – and note also that “a shape that corresponds to that of a federal state” does also not mean “is a state” (and also that federal states can take many forms – their defining characteristic being the importance placed on devolved, state/regional levels of governance over that of a central authority).

Indeed, this ruling seems to utterly preclude the creation of a European superstate – at least, not without a fundamental change to the German constitution, ratified by referendum (that’s how I read this, anyway):

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority. In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law.

…The peoples of the Member States are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution.

…The authorisation to transfer sovereign powers to the European Union pursuant to Article 23.1 GG is, however, granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of a responsible integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Federal Republic of Germany does not lose its ability to politically and socially shape the living conditions on its own responsibility.

That, to me, pretty much categorically rules out any EU superstate – while allowing for further integration, up to an indeterminate level (yet to be defined, but before the stage at which Germany’s ability to “politically and socially shape the living conditions” of its people is lost) at which a popular vote and alteration of the German Constitution would become necessary. Later, the EU’s current nature is more clearly defined:

With the present status of integration, the European Union does, even upon the entry into force of the Treaty of Lisbon, not yet attain a shape that corresponds to the level of legitimisation of a democracy constituted as a state. It is not a federal state but remains an association of sovereign states to which the principle of conferral applies…

With the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will remain a sovereign state. In particular, the substance of German state authority is protected.

There we have it – fairly categorical, that. And if anti-EU types are happy to use German politicians to claim that 84% of laws stem from the EU, I think it’s only fair for those of us of a less vehemently anti-EU persuasion be allowed to quote these German judges repeatedly when countering claims that the EU is becoming a superstate.

Moving on, the European Parliament also comes in for some stick, largely for still being ineffective, under-developed, and uninfluential – though this is seen as a good thing, as too powerful a European Parliament, runs the logic, could claim greater democratic legitimacy within the EU decision-making process than the governments of the member states working together behind the scenes via the Council and Commission, and thus reduce their freedom of action (the EU’s “democratic deficit”, in other words, is actually preserving the sovereignty of the member states…):

Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction. Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interest between the states. It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect. Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund, further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

And, just to underline yet further how an EU superstate is not on the cards:

The European Union must comply with democratic principles as regards its nature and extent and also as regards its own organisational and procedural elaboration (Article 23.1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law). This means firstly that European integration may not result in the system of democratic rule in Germany being undermined. This does not mean that a number of sovereign powers which can be determined from the outset or specific types of sovereign powers must remain in the hands of the state. European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. To the extent
that in these areas, which are of particular importance for democracy, a transfer of sovereign powers is permitted at all, a narrow interpretation is required. This concerns in particular the administration of criminal law, the civil and the military monopoly on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

Oh, and we’ve also got a categorical rejection of that myth that the Lisbon Treaty has the potential to become a self-amending enabling act – for this would be against German constitutional law:

The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz). The act approving a treaty amending a European Treaty and the national accompanying laws must therefore be such that European integration continues to take place according to the principle of conferral without the possibility for the European Union of taking possession of Kompetenz-Kompetenz or to violate the Member States’ constitutional identity.

There’s lots more of interest there – though precise interpretations of the significance of many of the details are a tad tricky for me to provide with my, *ahem*, less than perfect knowledge of German constitutional law. Nonetheless, it’s a bit of EU geek heaven – and, I’m sure you’ll agree, a lot of those definitions of what the EU’s competences are and should be (as well as the implicit restrictions made on certain aspects of future European integration) are likely to prove invaluable in the years to come as the EU continues to try and work out its purpose and direction.

Because, lest we forget, Lisbon actually is really little more than the tidying-up exercise that it has been claimed as. Yes, it introduces a few new aspects that some may see as worrying – but it still hasn’t solved the fundamental problems of EU governance and the relationships between the member states that have arisen since the expansion to 25 (now 27 – and soon likely to be 29). Almost as soon as Lisbon is ratified, work will have to begin on its successor – and these rulings by the German Constituional Court will, with any luck, provide useful guidelines for the next batch of EU reformers.

The European Union emerged, as we all know, as a response to the Second World War. One of the earliest aims of the founding fathers was to prevent France and Germany from ever going to war again by integrating their economies so closely that to do so would become impossible.

As a result – as well as, arguably, thanks to prolonged feelings of guilt about what the country got up to during the 30s and 40s – Germany has long been at the forefront of European integration. Germany remains one of the most enthusiastic EU member states – despite also having the strongest economy in the EU, formerly having one of the strongest currencies, paying the most into the EU budget, getting the least back, and being by far the most under-represented (by population) in the European Parliament.

It’s long been the case – albeit usually unacknowledged – that if Germany got fed up with the EU the entire project would be in danger of tumbling down. The EU could survive largely unchanged if almost any other member state decided that enough was enough (hell, if France pulled out it would arguably be improved, as the vast chunk of Common Agricultural Policy money that gets syphoned off by Paris could be redirected to more needy countries – and many more enthusiastic europhiles argue that if Britain jumped ship then the brakes the UK keeps putting on closer integration would finally be lifted, and the EU could reach new heights). If Germany gives up on the EU, all kinds of problems would kick off – not least because the European Central Bank runs out of Frankfurt.

Well, Germany hasn’t yet got the hump, and doesn’t show any signs of doing so just yet – but it could still throw a spanner in the works. Because oddly for a country in which nationalism and national self-interest have been so deliberately, systematically repressed (unsurprisingly, considering…), its constitutional court could yet rule that the Lisbon Treaty – and, by extension, many of the principles of the way the EU currently works – is illegal for providing ways for the German national parliament to be overruled.

And so it is one of the few remaining areas of German law that looks to the German national interest could end up being the brake on the current mode of EU integration, which itself originally started to prevent Germans looking too much to their own national interest.* Whoops!

As much as the anti-Lisbon Treaty crowd have got a bad reputation in certain quarters of the Brussels beltway – not helped by the lunatic fringes to right and left (as so often) being the ones who have shouted the loudest, and the recent announcement of anti-Lisbon party Libertas’ proposed candidates for the EU elections (mostly hard-right and nationalists, making a mockery of the “broad coalition for democratic reform” claims) – the German politicians who have brought this case before the constitutional court do have a point.

After all, if a national parliament (especially one from a country with a population the size of Germany’s) – elected by the people based on long-standing principles of representative democracy – can be overruled by the EU, an organisation whose democratic legitimacy is disputed to say the least, then what place for democracy in Europe?

And so, where the last time German nationalism reared its head to threaten the peace of mind of European states it was in the form of fascist dictatorship, this time German nationalism could well be rising up in the name of democracy. Democracy based around the principle of the nation state (something I can’t profess to be overly happy with), but democracy nonetheless.

The very fact that such a case merits the constitutional court’s attention shows that the legitimacy of EU decisions and powers has not yet been universally – or even legally – acknowledged. The argument that the EU is a method of overruling democracy, meanwhile, will continue to be made as long as the European Parliament remains the weakest of the EU’s principle institutions. (Will the upcoming EU elections reverse the trend for successively declining turnouts and so strengthen the case for the EP to be given more powers? I very much doubt it. It’s a catch-22 – the EP is perceived as being weak, so people don’t bother voting, so its claims to be the people’s voice diminishes along with its ability to assert influence. Such is the joy of EU democracy.)

So I ask yet again – when is the EU going to go for the kind of radical, democratic reform that is so vital for it to maintain support, and stop tinkering about with unsatisfactory compromises like Lisbon and Nice? Without the people behind it, the EU is doomed to fail. If the people were behind it – and had a sufficiently large voice in its decisions – then cases like this German one could never be brought, and complaints about the EU’s democratic deficit would become the preserve of nutters alone.

I don’t even have to check the usual eurosceptic sources to know how the Irish government’s research into the reasons for the rejection of the Lisbon Treaty is likely to be interpreted. Because, you see, they’ve found that the reason for the No vote was that the Irish people didn’t know enough about the treaty.

Cue screams of outrage from the eurosceptic hoardes: “You see! They’re going to tell us we don’t know what’s good for us! The people are stupid! They’ll press ahead with it anyway because they can use this to show we can’t be trusted! The elitist bastards!”

Well, perhaps. There are, after all, already rumours circulating of a second referendum being planned for next year – though it’s unlikely to be before the European Parliament elections or the arrival of the new Commission. But despite the torrent of frustrated voices from across the Channel calling for a fresh vote, read between the lines and it’s quite clear that the Irish government itself has made no such plans. Yet. Hell, even the latest suggestions of a fresh vote stem merely from a briefing paper prepared for the French EU presidency – and we all know that Sarkozy’s in favour of forcing the thing through (why else would he deny the people of France a vote on a treaty so heavily based on the constitution. Briefing papers – despite the spin – are not official EU policy.

But the thing is, this new research tells us nothing new. We knew ages ago from exit polls and countless surveys before the vote that one of the major reasons for the Irish No was that the treaty (and the constitution before that) was simply too complex, vague and self-contradictory for its own good. In trying to be everything to all people during the tortuous negotiations between the various EU member states, it ended up having all the usual characteristics of a bad compromise worked out in umpteen languages – wording that could be interpreted pretty much any way you like. Not much good for a legal document – and a disaster for its advocates, as every pressure group with a grudge was able to find something to worry about.

In other words, the reason that the Irish people didn’t understand the Lisbon Treaty is because it was rubbish.

Does this mean it shouldn’t be ratified anyway? Well, that’s up to the Irish government. The EU certainly shouldn’t (and under the present rules can’t) progress without unanimity on the treaty. And if one thing is certain to bolster the anti-treaty vote, it’s a bunch of Johnny Foreigners telling the Irish that they’re stupid. Ireland’s had enough of a bunch of foreigners painting them as idiots and telling them what to do – and look how well that turned out for the foreigners in question…

This started off as a reply to comments on this post, but got a bit lengthy…

The Convention on the Future of Europe (which drew up the failed EU Constitution) was, in its early stages, a step in the right direction. But – vitally – the public were never fully brought on board despite this being one of the key aims mentioned in the inaugural meeting (and despite the website being quite good, I don’t recall much press coverage or wider debate at the time, nor much effort being made to canvas the views of the peoples of Europe). It ended up being a grand talking-shop for a bunch of lobbyists and politicians (if a slightly wider group of politicians than usual in EU treaty-writing), and coming up with something so vast and complex that it could never be understood by the people it was supposed to sell itself to (though at least it was better on this front than the Lisbon Treaty, I suppose).

It also, as far as I can tell, went far beyond its initial remit – to simplify and clarify the meaning of previous treaties, define the limits of the EU’s power in line with the subsidiarity concept, and push for greater democracy, efficiency and transparency – while not going far enough on any of those main points. It certainly failed dismally in clarifying what the old treaties meant, at any rate – and hell, even the Charter of Fundamental Rights ended up being something countries – i.e. the UK – could opt out of, despite that being another key issue highlighted in the wake of Nice… (Here’s probably not the place to have a moan about what that document includes as fundamental rights, many of which are not so much “rights” as “privileges”…)

What I’d like to see happen (though I have no illusions that it will) now that the Lisbon Treaty also seems to be dying is the birth of a genuine, Europe-wide discussion of the kind Peter mentioned in his first comment – hell, even debates conducted within each state (like that in France in the run-up to their 2005 referendum) would be a start. The Commission’s been making some decent efforts over the last few years, and Margot Wallstrom‘s convinced me that she truly would like a genuine debate while making some good first steps in the right direction – but so far none of these have really taken off, or gone anywhere near far enough.

But this is vital – fundamental. Get the people thinking about the EU, rather than just ignoring it. Get them talking about it. Get them to say what they think it is and what it should be for. Because I’m pretty certain that currently no one knows – and if our representatives at these meetings are starting from a position of ignorance about what the people they are representing actually want, little wonder that they end up with something that the people then reject.

Bruno‘s definitely right about the split between the political establishment and the people. Only the real problem, I’d say, is not at EU level – I’d again agree with Peter (in his second comment), and say it’s the national politicians who are the problem. They don’t know what their people want from the EU, because the people themselves don’t know. But rather than try to get their people thinking and talking about it so they can then, y’know, represent their people, they take the “father knows best” line and forge ahead regardless – in the process constructing an EU without any real guiding principles or final goals, and that the people who have to live with it have had no say in creating.

You wouldn’t start constructing a building with no plans, no idea of the number of floors, rooms, windows and doors, and no idea what the people who are going to be using it are going to be using it for. Yet that’s precisely what’s been happening with the EU for decades. It’s no longer (if it ever was) just a trading block. It’s no longer (if it ever was) heading towards a federal superstate. It’s something altogether new and altogether misunderstood – because the EU itself doesn’t know what it is or what it’s for.

Until the EU works out what it’s for – a purpose that really must be set by the peoples of Europe if it’s going to have any chance at long-term survival – the same unproductive nonsense is going to continue ad infinitum.

(For more along these lines, check out What is the EU for? (Part 1) and the dLiberation blog I did for openDemocracy last year, focussing pretty much exclusively on the problems of getting the people to participate meaningfully in EU reform…)

But considering it was largely the unconvincing zombie resurrection of the old Constitution anyway, it probably won’t be fully dead until someone’s cut its head off, put a stake through its heart, shot it repeatedly with silver bullets, smothered it in garlic-infused holy water, and tricked it into saying its name backwards three times.

Note to the EU: for Christ’s sake, can we please actually THINK about the next step this time? In detail? Preferably without the assumption that the people are too stupid to notice what you’re trying to pull on them (thus alienating them yet further from a project which seems increasingly separated from the needs of the European people) – and ideally with the people in full, genuine consultation at every stage.

The continent of Europe is far, far too diverse for such idealistic “one size fits all” projects to have any place in future EU planning – unless it’s the most basic statement of shared ideals and principles, along the lines of the American declaration of independence or the US constitution. Surely that much is obvious? Just like the American colonies – only far, far more so – Europe is not made up of one united people; we are many peoples with much shared history and culture, but with plenty that also divides us in terms of hopes, dreams and aspirations. The old Constitution, the Lisbon Treaty – hell, pretty much every EU and EEC treaty ever ratified – failed sufficiently to acknowledge this, and so failed to allay concerns. The longer this went on – especially as the EU’s power and presence seemed to continue to grow without so much as a by your leave from a democratic vote – the more annoyed, the more distrustful the people of Europe were bound to become.

The European project was started by political elites as a trade association with delusions of grandeur. It is now much, much more than that, with competence creep after competence creep. It is too unwieldy and unaccountable for the people of a continent with more than its fair experience of despotism and dictatorship not to start taking offence if it continues down the route of “what we say goes, and there’s not much you can do about it”.

I believe in the principles behind the European Union. I believe that the European Union has done far, far more good than harm both in Europe itself and worldwide. I believe that the European Union should continue. But not in the direction it is currently heading. Not with the attitude it has currently got.

The Lisbon Treaty is dead – don’t make the same mistake as last time of trying to dress up the corpse to make it look a bit different. Accept the fundamental failure of the treaty (and constitution), and accept that a far more radical solution is vital. A complete rethink. A deep, serious analysis of what the EU is and what it is for – and, most importantly, what the European people think it is for. This is something that hasn’t happened in decades, but that is absolutely essential if the EU is to avoid the further alienation of its citzens – citizens who, it should be noted, have not all been asked if they want such citizenship in the first place.

The EU has evolved gradually over the years based on vague dreams. It’s time for a reality check.

(BBC story on initial reports of the lost Irish referendum here)

Update: As the count’s not final yet (this post was written at around 15:30 UK time), keep an eye on the Irish Times’ Lisbon Treaty site, with real-time updates. The current tally is 46.3% yes, 53.7% no. Elsewhere I’ve seen turnouts estimated at 40-45% – not huge, but not bad for EU-related elections, and more than the last Irish rejection of a European treaty back in 2001, even if the margin of rejection seems to be smaller this time…

Is the Lisbon Treaty finished? Well, if you have a gander at the latest poll of voting intentions in the Irish referendum on the thing, then yes. Because it can’t be passed without unanimous support from all 27 member states, and if the Irish people vote no, it has to be rethought and redrawn. Again.

Only 30% for the yes camp, with 35% in the no – and rapidly rising. Doesn’t look good for the pro-treaty brigade, does it? And all this from the Celtic tiger – one of the poorest European countries before joining what is now the EU, now one of the wealthiest. There’s gratitude for you!*

But the real revelation of this poll? It confirms something I’ve always maintained about a referendum for such a complex international treaty:

The reason most often cited by No voters is that they don’t know what they are voting for or they don’t understand the treaty – with 30 per cent of No voters listing this as the main reason for their decision

If you don’t understand something, don’t vote for it strikes me as an eminently sensible policy.

And herein lies the EU’s biggest flaw – as I’ve repeatedly stated here and elsewhere for years, the EU is far too complex to understand. Simplification is the key – and a constitution of sorts was the perfect opportunity to simplify. A few basic principles – nothing horrific. And what did they do? Churn out an incomprehensibly thick document full of meaningless subclauses and vague platitudes in an attempt to minimise dissent, ensuring that no one – not even those involved in drafting the thing – could agree on what it was actually setting out to do.

But even drawing up a simple, US-style constitution of a minimal number of first principles isn’t as simple as it sounds. An EU promoting free trade? You’ll be opposed by those wanting a “Social Europe”. Human rights sound like a nice thing to get behind, right? Well, it depends whose human rights – and whether you can agree to lump the basics of “don’t torture people” in with the more contentious “right” to taxpayer-funded benefits.

The Irish people don’t know what the Lisbon Treaty is all about? Little wonder when even the member states can’t agree what the EU itself is about.

This is the central problem with which the EU has been trying to come to terms since the end of the Cold War. It is the problem the Treaty of Nice was supposed to address, then the Constitution, and now Lisbon. And they still haven’t got an answer to the fundamental questions: what is the EU for?

* Note: Yes, I am fully aware that the Irish economic miracle cannot be put solely down to its membership of the EEC/EU – but you’d surely have to be somewhat ideologically blinkered to deny that membership had any part to play in Ireland’s success.