Andrew Duff -  On Governing Europe

Conservative parliamentarians have lined up to deride David Cameron’s speech of 10 November as falling far short of the radical renegotiation of Britain’s terms of membership that they want. This domestic reaction has misled the casual foreign observer to conclude that Cameron’s demands can be quite easily accommodated by a European Union which is vexed by other problems more important than Brexit. The reality, I fear, is rather different.

British eurosceptics need not complain that Cameron has failed to embark upon a fundamental reform. Of course, this is not the reform of the European Union for the general good of the unenlightened foreigner of which Cameron boasts, but it is a complete reversal of British European policy, and it will, if prosecuted, severely weaken the EU.

Despite what Cameron claims, there is no precedent for such an adventure. Harold Wilson’s sham renegotiation in the 1970s did no lasting damage to the European Community: Margaret Thatcher, in the 1980s, did far more harm to the European project without bothering with the histrionics of ‘renegotiation’ and referendum.

The prime minister cites the example of the special arrangements made for Denmark and Ireland when their two peoples, having voted the wrong way, had to be asked to change their mind about a new EU treaty. He forgets to add that the fixes for Denmark and Ireland were designed expressly to allow the new treaties of Maastricht, Nice and Lisbon to enter into force so that European integration could continue on its merry way. In none of these cases did the promissory notes, decisions and declarations conceded to Copenhagen and Dublin materially alter the respective EU treaties: they merely reiterated positions already negotiated, confirming that the amended treaties meant what they said and said what they meant.

‘Not through warm words’

David Cameron, on the contrary, is trying to throw over the Treaty of Lisbon and Britain’s membership commitments with it. First and foremost is his demand for a ‘formal, legally-binding and irreversible’ exemption for the UK from the historic mission of ‘ever closer union’. These words are not of marginal importance, but appearing in the first article of the treaty, predicate the whole constitutional order of the EU. The British derogation, Cameron warns, cannot be achieved ‘through warm words’ – so the emollient (and ill-judged) conclusions of the European Council in June 2014 which accepted that there could be ‘different paths’ of integration will wash no longer. For Cameron today, ‘different paths’ must lead to a different destination that is not ever closer. As commitment to ever closer union was enshrined in the UK’s EU Accession Treaty of 1972, its removal is a big constitutional matter for the Westminster parliament and a feather in the cap of the veteran sovereignty militant, and chair of the EU scrutiny committee, Bill Cash MP.

Talking of sovereignty, Cameron proposes to change the treaties so that ‘groups of national parliaments can come together and reject European laws’. There is already, thanks to Lisbon, a carefully calibrated procedure in place whereby a third of national parliaments can oblige the EU to reconsider a draft law on the grounds of a breach of the federalist principle of subsidiarity. This ‘yellow card’ procedure has been tried on a grand total of three times in the six years since Lisbon came into force, which suggests that the EU institutions are not in the habit of acting ultra vires as they go about their business. It is not clear how far Cameron is prepared to go to repatriate powers to national parliaments, but he is making a very intentional snub to the European Commission, the European Parliament and also the Council.

Constitutional clash

Undaunted, Cameron wants to engineer further changes in the EU’s legislative processes in order to secure the right of the non-euro countries to block unpopular decisions of the eurozone states. Quite why the minority should be able to second-guess the majority is hard to fathom. There are certainly legitimate interests of all member states in securing the integrity and good operation of the single market, and it is important that these interests are recognised in law when the eurozone moves, as it will, towards fiscal and political union. But the UK can claim no special privilege because it refuses to join the euro, which will remain the single currency of the economic and monetary union (as the treaty says).

Somebody has told the British prime minister about the Bundesverfassungsgericht, and he now envies the power of the German federal constitutional court to review the legality of EU activity and, if necessary, to challenge the primacy of the European Court of Justice (ECJ). Unfortunately, nobody has told the British prime minister that the two constitutional courts of Karlsruhe and Luxembourg are assiduous in not disagreeing with each other. Nor has he realised that the German judges are beholden to uphold the German Basic Law in which commitment to the deepening of European integration is a cardinal feature. For the British parliament, free of constitutional restraints, to empower the UK Supreme Court to take pot shots at the European Court of Justice would demolish the legal basis that underpins the EU Accession Act 1972.

A further breach of EU primary law would occur if, as Cameron proposes, a British law should seek to limit the effect of the EU Charter of Fundamental Rights in the UK. This manoeuvre would accompany the government’s plan to craft a healthily British Bill of Rights in order to curb the impact of the unhealthily European Convention on Human Rights (ECHR) and its Strasbourg court. Tony Blair managed to concoct a Protocol to Lisbon which he claimed amounted to an opt-out for the UK from the Charter. In fact, as the ECJ has asserted, Blair’s Protocol does no such thing. The Charter protects the rights of British nationals quite as much as it does the rights of other EU citizens. Any impairment of that level of protection or impediment to the ability of the ECJ to deploy the Charter will provoke yet another constitutional clash between the UK and the EU a clash that will become more acute when the EU accedes in its own right, as it is bound to do by Lisbon, to the ECHR.

To muddy the waters further, Cameron also intends to apply the principle of subsidiarity more strictly and to seek confirmation from the EU institutions of their respect for existing opt-outs in justice and home affairs and for UK independence in matters of national security. He has not yet told us what form these new moves will take, how they are to be agreed or what impact they are intended to have.

Last but not least, there is the thorny issue of the mobility of EU citizens. Cameron now knows that his partners will not compromise on the twin principles of freedom of movement and of non-discrimination on the grounds of nationality. But how to reconcile respect for these principles of EU law and the British government’s wish to curb immigration from the mainland has yet to be revealed.

It is, in my view, grossly unfair of his Tory critics to regard David Cameron as a pro-European. On 10 November the British prime minister moved decisively from eurosceptic posturing to a position where constitutional rupture is inevitable. As things stand, I do not believe it possible for the EU to reach agreement on a ‘legally-binding and irreversible’ package with the British that will avoid Brexit.

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