Richard North, 22/02/2016  

One is acutely conscious that all electoral fraud, in its many guises, is a criminal offence. But if there is to be any equality of arms, perhaps we might consider a criminal sanction for politicians who commit what might be called "treaty fraud", inventing non-existent treaties for the sole purpose of rigging the EU referendum.

Going back a little way on this, we see in Spiegel online of August 2012 a report that the German Federal government were making plans for a new EU treaty, with an expectation that a date for the start of a treaty convention would be fixed at the European Council in December.

It was undoubtedly that, or reports like it that led David Cameron in his Bloomberg speech of 23 January 2013 to predict that, "at some stage in the next few years the EU will need to agree on treaty change".

This was widely expected and considered essential to introduce the changes needed, in Mr Cameron's words, "for the long term future of the euro". The then coalition leader was looking for "reform" and believed the best way to do this was in a new Treaty. And so he added his voice to those who were already calling for this.

As history records, that treaty did not materialise, which we noted in our recent piece, and it was the absence of any sign of a treaty on the stocks that led us to surmise that Cameron could be tempted to cut and run, going for an early referendum.

What dissuaded me from believing that Mr Cameron would be so rash was the slenderness of his supposed reforms, leaving him with a hand so weak that it was scarcely credible he could win the referendum with it.

What I hadn't taken into account were two things. The first was that Mr Cameron, having finally realised that there was no treaty in the offing, would invent one. The second was that anyone would believe him if he did.

The man is certainly playing a good game. Yesterday he was confronted by Andrew Marr telling him that his "getting out of ever closer union" depended "on a treaty of undefined scope of undefined time, with new leaders we don't even know about". So, said Andrew Marr, "it's taken on trust".

Mr Cameron was having none of it, informing his interviewer that "what was agreed by 28 prime ministers and presidents, every EU country on Friday evening, that is itself an international law decision, a treaty that will be deposited at the UN. It is legally binding, it is irreversible".

That, oddly enough, proves our point. Mr Cameron did not say that this was an EU treaty. It cannot be. The European Council does not have any authority to make treaties – and there is nothing in the treaties that in any way empowers the Council to make decisions of a nature that exclude a member state from treaty provisions.

We have then an "international law decision", made by the heads of state and governments of the 28 member states, which Mr Cameron says is a treaty. But then we have the European Council conclusions themselves tell us that, as regards this fabled "getting out of ever closer union", the substance of the "international law decision" will be "incorporated into the Treaties at the time of their next revision".

As regards this "international law decision", therefore, it can have no effect (in relation to ever closer union and other matters) until that is incorporated into the EU treaties. That much is evident from no less than French President François Hollande who says of the "decision" that it creates "no deviation from the European rules".

The UK might have "a special place in Europe, as it always had" but there was to be "no exception to the rules of the single market".

As far as Mr Hollande was concerned, though, the concessions made to Cameron did not even require changes to existing EU treaties, but could be included in them "when there is a treaty revision procedure one day". However, he went on to say that there were "no revision of the treaties planned".

This low-key assessment seems rather at odds with Mr Cameron's dramatisation of events, which takes a further knock from the Independent on Sunday which "can reveal" that Angela Merkel has warned David Cameron that his pledge to change the EU treaties to lock in his reforms may never happen.

This apparently comes from a "leaked diplomatic report" that has Merkel telling the "colleagues" on the European Council not to be overly concerned about Mr Cameron's demand for treaty changes because "on the question of amending the Treaties, we do not know if we ever will have a change of them".

Thus, as it stands, not only does Mr Cameron not have a treaty, with the French president believing that there has been nothing sufficiently substantial as to require a treaty, there is no likelihood of an EU treaty in the foreseeable future, which will give his "deal" any greater credibility.

For Mr Cameron to present it as he is doing – a non-treaty that is going nowhere – can only amount to that most heinous of crimes. This is treaty fraud.

Unfortunately, the criminal law hasn't caught up with him yet. So it is no wonder that the Prime Minister wants to rush the referendum through as fast as he can. By this means, he must hope that no one will notice until it is too late that all he has on offer is a phantom renegotiation and a pretend treaty.

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