A happy man, Bagehot says, is not forever repairing his house. Yet the Lisbon Treaty, if ratified, will be the fifth constitutional amendment to the Treaty of Rome, in addition to the enlargement treaties, since 1985. The treaty provides for a minimal transfer of powers to European institutions, and most of those, on matters such as humanitarian aid and energy policy, are clearly in Britain's interest. Indeed, energy liberalisation, which has been of great benefit to Britain, would never have been secured without qualified majority voting.
The main effect of the treaty is to clarify the institutional structure of the European Union. But the Laeken declaration of 2001, which led to the Convention on the Future of Europe, and then to both the ill-fated constitution and the treaty, sought more than this minimal approach, calling for a "clear, open, effective, democratically controlled community". The treaty, however, does little to make the EU more democratic or more accountable. It alters the balance between the institutions of the union, but not the balance between the institutions and the people of Europe. It does nothing to make the EU less of an alienated superstructure.
Although the treaty is a highly minimalist document, it has aroused a predictable outbreak of hostility in Britain, with renewed calls for a referendum which Gordon Brown is determined to resist. The referendum proposal, however, has found favour with MPs from all parties. For Europe is an issue which cuts across party allegiances. In the 1980s, it helped to break up the Labour Party. In the 1990s, it threatened to do the same to the Conservatives in the battle over the ratification of the Maastricht Treaty.
Why has Europe had such convulsive effects? In 1962, after Harold Macmillan had applied to join the European Economic Community, as it was then called, the then Labour leader Hugh Gaitskell declared that a federal Europe would mean "the end of a thousand years of history". Joining the community represented a commitment quite unlike that involved in joining any other international organisation such as the United Nations or Nato. For it involved a transfer of sovereignty to a body--the Council of Ministers of the European Community--which was not and could not be responsible to Westminster. As the European Court of Justice held in the case of Costa v ENEL, in 1964, nine years before Britain joined the community: "The transfer by the states from their domestic legal systems to the community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights."
Opponents of the 2003 European constitution who attacked it on the grounds that it would make British law subordinate to European law failed to appreciate that this had been so ever since Britain joined the community in 1973. It is the very raison d'etre of the whole European enterprise. Moreover, the supremacy of community law could be enforced against national governments and legislatures by national courts. In a case in 1962, Van Genden Loos, the European Court of Justice held that the Treaty of Rome, establishing the community, was not just "an agreement which merely creates rights and obligations between the contracting states" but "a new legal order of international law for the benefit of which the states have limited their sovereign rights, and the subjects of which comprise not only the member states, but also their nationals".
These two doctrines--the doctrine of the supremacy of European law and the doctrine of direct effect--entailed a revolution in our constitutional thought. For it meant that, for all practical purposes, parliament would no longer be sovereign. As early as 1971, a leading constitutional lawyer, SA de Smith, defined the community as "an inchoate functional federation". The Treaty of Rome in 1957 had declared that its …