I also faced a further unexpected intellectual difficulty. The position I inherited from Ted was that of outright opposition to the whole idea of a referendum on the grounds that it was an unconstitutional and un-British practice. There was no time to change this even if I had wanted to; only a fortnight after my accession to the leadership, the Government published its Referendum White Paper. It was, moreover, a rich source of party political advantage to attack the referendum as a constitutional monstrosity devised simply to keep the Labour Cabinet together. I was, however, uneasy. First, there was the obvious practical point that if, whatever protests the Conservative Opposition made, we were to have a referendum anyway, we would soon have to take it seriously — and be seen to do so — if we wanted to secure the right result. Secondly, and only vaguely as yet, I thought that it might be necessary at some time in the future to call for a referendum when a single issue divided the nation but not the parties, making a general election an inappropriate instrument for settling it. Similarly, a Conservative Opposition might seek one if a far-left government, supported by militant trade unions, sought to challenge fundamental freedoms under the cloak of constitutional convention.
I decided to read up all there was on the subject. The idea of a referendum had quite a long pedigree in British politics. From the 1890s to the 1930s it had variously been advanced — sometimes by Conservative Leaders — in connection with Irish Home Rule, the powers of the House of Lords, and the imposition of food tariffs. In 1945 Churchill had mooted the possibility of a referendum on extending the life of Parliament until Japan was defeated. In none of these cases had a referendum in fact been held. But it was clearly wrong to treat the case for it anything other than seriously. I was particularly taken with the assertion in the revised eighth edition of Dicey’s The Law of the Constitution that: ‘The referendum is the people’s veto; the nation is sovereign and may well decree that the constitution shall not be changed without the direct sanction of the nation.’
I consulted Michael Havers, shadow spokesman on legal affairs, about these arguments. His reply, which at the time seemed to me a powerful one, was that, reviewing the cases on which the Conservative Party had supported a referendum, we could say that apart from the case of food tariffs, where the Party was trying to avoid a damaging rift (as Labour was now), the issues were all constitutional. Moreover, in none had Parliament already decided the issue and in none were we risking the breaking of a treaty unilaterally. He concluded that past precedent offered no justification for a referendum on EEC membership.
I had, therefore, thought through the issue thoroughly by the time I spoke in the House in the Referendum Debate on Tuesday 11 March. It would be my maiden speech as Leader of the Opposition. In spite of the reservations I had about the case I was making, it was the kind of speech I enjoyed. The main intellectual weakness of the Government’s case was the confusion about whether and how the referendum would be ‘binding’ on Parliament. If it was binding, then parliamentary sovereignty, which mattered a good deal to anti-Marketeers on both sides of the House, was infringed. If it was not binding, then what was its force? I did not in my speech rule out the use of referenda, but I urged that it would be necessary to consider the full constitutional implications. I rejected the argument put forward by the Government that the case of continued membership of the EEC was unique and thus a referendum was required. I said:
To use the referendum device at all is to ask the question: to what category of measure should referenda apply? Presumably the answer would be: in cases of constitutional change. But it is hard to define such a change in the British tradition because so much depends on convention and precedent.
A referendum may, however, become acceptable if given a proper constitutional foundation — that is to say, if the conditions under which it could be used were defined. But that would mean, like many other democratic countries, going as far as a written constitution or at least part of the way. The implications for parliamentary sovereignty are profound. But if our sense of constitutional rules and conventions is weakening, there may come a time when some such course should be considered.
Although there are some other passages of that speech with which I would not now agree, these assertions still seem a good starting point for consideration of the case for a referendum on, say, the Maastricht Treaty or a single European currency.[43] What I had not grasped at this time, though some others had, was that the conditions for a referendum which I had outlined had more or less already been met. The subordination of UK law to European Community law, which flowed from accession to the Treaty of Rome and which both successive treaty changes and the practices of Community institutions would accelerate, did entail a constitutional change. And we had gone ‘at least part of the way’ towards a written constitution by accepting the contents of the Treaty of Rome and a special European Court of Justice, which could strike down laws passed by Parliament which conflicted with it.
The Commons passed the proposal for a referendum by 312 votes to 248. But it was the outcome of the debate on Wednesday 9 April on the substantive issue of continued EEC membership which was a foretaste of things to come: Ayes 396, Noes 170. From now on until Thursday 5 June, the day set for the referendum, the formidable power of business, the leaderships of both parties and the wider, respectable establishment combined to extol the merits of Community membership, to elaborate fears of job losses, to warn of a third world war originating in intra-European conflict and to ridicule the odd combination of Labour left-wingers and Tory reactionaries which constituted the ‘No’ lobby. The ‘Yes’ campaign was well organized and very well funded — not least as a result of the efforts of Alistair McAlpine, whom I would shortly recruit to be Conservative Party Treasurer. For all the talk of a ‘great debate’ it was really a contest between David and Goliath, which Goliath won. The substantial issues often went by default.
Most distasteful of all to me was the patent opportunism of the Labour leadership. The ‘renegotiation’ of Britain’s terms of entry, which had been concluded in March at the Dublin European Council where a special ‘Financial Mechanism’ had been agreed to prevent Britain shouldering too heavy a financial burden, was simply not serious: the mechanism was never triggered and so never yielded a penny piece. Yet the booklet distributed to all households by the Government abandoned all of the Euro-sceptical rhetoric which Labour, particularly the Foreign Secretary Jim Callaghan, had employed at the general election. It contained such assurances as:
As a result of these negotiations the Common Market’s agricultural policy (known as CAP) now works more flexibly to the benefit of both housewives and farmers in Britain… Under the previous terms, Britain’s contribution to the Common Market budget imposed too heavy a burden on us. The new terms ensure that Britain will pay a fairer share… There was a threat to employment in Britain from the movement in the Common Market towards an Economic and Monetary Union… This threat has been removed… To say that membership could force Britain to eat Euro-bread or drink Euro-beer is nonsense… It is the Council of Ministers, and not the Market’s officials, who take the important decisions.
I duly launched the Conservative pro-Market campaign at the St Ermin’s Hotel, at a press conference presided over by Ted Heath, even describing myself as ‘the pupil speaking before the master’. I spoke in my constituency and elsewhere. I contributed an article on the eve of poll to the Daily Telegraph. I felt that I did my share of campaigning. But others did not see it that way. There was criticism in the press — the Sun, for example, commenting: