May 25, 2015
David Cameron’s campaign to renegotiate the terms of Britain’s membership of the European Union has not got off to a good start. He admitted that his first foray with fellow EU leaders, on the margins of the Eastern neighbourhood summit at Riga last week, was not met with ‘a wall of love’ (whatever that may be).
Of course, it suits the prime minister’s domestic agenda to play up the difficulties he faces in persuading the European Council to give the UK what Britain, apparently, voted for at the recent general election. Before he holds his referendum in 2017, Cameron needs to demonstrate to the British public that he is the victor of a great European battle. But he should be careful not to ask the impossible: if his timetable is unrealistic, his demands implausible or his methods perfidious, he will not win. In truth, Cameron does not have any natural friends in this business. The Irish, for example, have the most to lose if the UK falls out of the EU. Denmark, which with Ireland and the UK formed the trio of troublemakers joining up in 1973, is soon to hold a referendum to drop some of its own eurosceptical opt-outs.
Nobody will forget that the UK is already a semi-detached member state of the Union. Britain has joined neither the euro (Protocol 15 of the EU treaty), nor Schengen (Protocol 19), while it enjoys a permanent derogation from the EU’s common policies on justice and interior affairs (Protocol 21), and claims special dispensation from the EU’s Charter of Fundamental Rights (Protocol 30). The UK also clings to its notorious budgetary rebate into which even the poorest EU states now have to contribute.
The new government, nevertheless, wants the UK to become even more detached from mainstream integration. Its catalogue of items for renegotiation is reported variously from 10 Downing Street to include a proposal to dissociate the UK from the Union’s historic mission of ‘ever closer union’, to stop calling the euro the currency of the Union, to compromise on the principle of freedom of movement of EU citizens throughout the Union, to restrict the powers of the European Court of Human Rights (and by implication the European Court of Justice with regard to the Charter), and to give national parliaments the power to block EU laws.
Parting of the ways
The Westminster-based media badly underestimates the legal import of these demands and their political impact on European unity. For example, not to be bound by the mission of ‘ever closer union among the peoples of Europe’ would relegate the UK to a new second-class category of membership that would surely have the effect of depriving the British people of the privileges of EU citizenship namely to be treated by the Union equally with others and not to be discriminated against on the grounds of nationality.
Already, in June 2014, after Cameron had kicked up a fuss about the election of Jean-Claude Juncker to the Commission presidency, the European Council noted that the UK had ‘raised some concerns related to the future development of the EU’. Significantly, it continued: ‘These concerns will need to be addressed. In this context, the European Council noted that the concept of ever closer union allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do not want to deepen any further’. Multi-speed integration is all very well if everyone is headed in more or less the same direction. However, deliberately to take ‘different paths’ leading to different destinations is another thing entirely. Confronting Britain’s provocation, its partners face an invidious choice between keeping Britain half-in the Union (while all the time trying to get out) and putting Britain half-out of the Union (from where it may be expected eventually to want to get back in).
More difficult than it looks
The British renegotiation challenge will involve the European Parliament through the ordinary legislative procedure in any revision of secondary law concerning, for instance, the in-work rights of mobile workers or the welfare rights of those moving in search of work. MEPs will find all that a tall order. They are likely to be less compliant when consulted over the merits of yet another British opt-out Protocol, doubtless in part oxymoronic and tautological, cooked up by the European Council in order to appease the British, with the intention of being glued on to the existing treaty at the time of its next revision. The heads of government could decide to write an international treaty outside the EU framework that sought to govern their behaviour inside the EU Council, but such an act of appeasement would certainly have to run the gauntlet of a ruling by the European Court of Justice as well as face a political backlash in Britain, not least within the Tory party.
No general revision of the treaties will begin until after 2017, and its main purpose will be to deepen the fiscal integration of the eurozone and move further towards full federal union. Such federalisation implies that a new form of subsidiary or affiliate membership will have to be created in order to accommodate any existing member state which chooses not to accept the federal prospectus but wishes to retain the status of membership in some lesser form. The current British renegotiation renders such a constitutional innovation inevitable. It would be churlish to deny David Cameron the credit for having given a spur towards federal union: it would be helpful if he were to concede at the outset of his unilateral renegotiation that he will not seek to stand in the way of his EU partners as and when they begin that complicated later exercise.
As the prime minister is received on his tour of European capitals, his hosts will be aware of the fragility of his claim to command a large mandate to cause trouble in Europe. Cameron accrued only 37% of the popular vote; he has a slender Commons majority of 12; and he is in a big minority in the House of Lords. The right-wing of the Conservative party will never support Cameron’s EU renegotiation, which they regard as a sham and a stitch-up: they will campaign in the referendum alongside UKIP, as well as some Labour rebels, for a No.
On the left, Cameron’s antics are viewed with considerable cynicism. Real pro-Europeans do not want Britain to become more detached from the EU or for the UK to impede the onward march of integration: rather the contrary. Labour, Liberal Democrat, Green and Scottish Nationalist voters are in no mood at all to oblige the prime minister. It is likely that Cameron’s referendum will only be won if the question on the ballot paper makes no reference at all to his painful renegotiation exercise. How ironic is that.
And don’t believe the opinion polls. Britain may well be slipping down from the wall of love to a vale of tears.Andrew Duff