Andrew Duff -  On Governing Europe

Dear Prime Minister,

I understand from press reports that you are increasingly frustrated by the obstacles that appear to obstruct your renegotiation of the terms of UK membership of the European Union. Maybe I can help.

First I will deal with the substance of your demands for treaty change, and then on the form.

‘Ever closer union’

You are absolutely right, given your views on the European Union, to stress the importance of extricating the UK from the commitment to ‘ever closer union of the peoples’ of Europe. Many lazy commentators treat these words as if they are of marginal or only preambular importance. On the contrary, ‘ever closer union’ defines the historic mission of the EU: without defining precisely the finalité politique of the Union, it describes the federal process of continuing integration that has been underway since the end of the Second World War. Appearing in Article 1 of the Treaty on European Union, it predicates what immediately follows – namely, the values and principles in Article 2 and the political objectives in Article 3.

Previous British governments have not only accepted the commitment to ever closer union but have elevated it in terms of primary law. One of your Conservative predecessors, Edward Heath, inserted the clause into the UK’s original accession treaty to the European Community in 1972; another, John Major, twenty years later, insisted on its retention in the Treaty of Maastricht.

Nevertheless, given that you want the UK not to continue with the integration process, you would again be right not to accept the weasel words offered up by Donald Tusk, President of the European Council, in his letter of 7 December to the effect that ‘different paths’ can be followed by EU member states on their common journey to ‘ever closer union’. We have had a multi-speed Europe for many years: what you want now is not a yet more circuitous route to the same destination but an agreement that we will henceforward be travelling to separate destinations.

A more elegant way of settling your European dilemma would be to craft a new form of affiliate membership, short of full membership. Some are surprised that you have rejected that option. You are criticised for not spelling out your own concept of Britain’s ultimate destination. But you can justly demand of your EU partners that they also make more of an effort to specify their own concept of fiscal and eventual political union.

Your standing on these matters is credible because you and the Chancellor of the Exchequer have repeatedly stated your understanding of the ‘remorseless logic’ of federal union for the eurozone. You are impatient at the inability of the euro states to get on with the business of fiscal integration leading to political union. You have said that the UK will not stand in the way of the federalists. You should go on making that point at the European Council meeting on 17-18 December.

Multi-currency union

In this vein, your Chancellor is quoted as demanding that the treaty should be amended to establish that the euro is not the only currency of the EU. This is not necessary. The treaty does not say that it is. In Article 3 TEU we read that the euro is the single currency of the economic and monetary union – from which the UK in Protocol No. 15 has a derogation (and Denmark in Protocol No. 16 an exemption). While all other member states are committed by treaty to joining the euro when they manage to meet the convergence criteria, the UK is not. You might advise George Osborne of this.

Mr Osborne also makes the point that single market legislation should not discriminate unfairly against non-euro states. Here he is on stronger ground, especially as the eurozone states now have an in-built qualified majority in the Council. It is perfectly reasonable to ask that any non-euro state should be able to raise alarm at the level of the European Council if it fears that imprudent legislation by the eurozone might prejudice the smooth operation of the single market. There are ‘emergency brake’ precedents for this in the Treaty of Lisbon in the field of justice and home affairs that could be adapted to the new circumstances of fiscal union.

However, just as you are perfectly right to admit that no single national parliament should have a veto over EU legislation, that same self-denying ordinance must apply also to national governments. We could agree, I think, that once the contested matter in hand has been raised and discussed at the level of heads of government, the European Council should be able to vote by super qualified majority on whether to lift the suspension of the ordinary legislative procedure or to invite the Commission to amend the draft measure. For you to demand more than that would seem to contradict your expressed wish for the eurozone to get its act together.

National parliaments

That being said, you say that you prefer the democratic legitimacy of national parliaments to that of the European Parliament. If I understand correctly, you would like to give a grouping of national parliaments, more than one but fewer than a third, to wave, in football parlance, a new-style ‘red card’ against a draft EU law.

Your advisors are certain to have told you that the yellow card under the Lisbon system has only been waved twice by the requisite number of national parliaments (and only once correctly) on the grounds of a breach of the federalist principle of subsidiarity. In the six years of the Lisbon regime, neither the more rigorous orange card nor the ultimate red card (an appeal to the European Court of Justice) has ever been deployed. There is in fact very little evidence of the EU institutions acting ultra vires: the principle of subsidiarity is rather well respected.

You are, of course, at liberty to try to convince others (including the House of Commons) that they should be more assertive in scrutinising EU law at the pre-legislative phase. But I doubt that there is much appetite among other governments for laying open their ministers in the Council to be countermanded by their own national parliaments.

Indeed, I wonder whether it is really in the British national interest to empower other national parliaments to block single market legislation of which the UK is often the strongest (and unpopular) advocate. There are surely more national parliaments against further liberalisation in services, for example, than in favour. In this season of cheer, you might point out to your own eurosceptics that what is sauce for the goose is sauce for the gander.

Freedom of movement

You are insisting that non-British EU citizens should be deprived of in-work benefits for a period of four years – and this without prejudicing the rights of British nationals to enjoy those benefits. Here you face breaching two cardinal principles of EU law: freedom of movement of peoples and non-discrimination on the grounds of nationality. And there would, of course, be knock-on adverse effects on many of those millions of British nationals who now enjoy the rights of EU citizens in other member states.

As you have been travelling to consult your colleagues you will know how much support there is for this proposal at the level of the European Council. Doubtless, if you were to accept the invitation of President Schulz to address the Parliament, you could persuade MEPs of the virtue of your whole ‘Brexit’ initiative. But as things stand there seems to be a degree of concerted opposition to your catalogue of demands in both the European Commission and the European Parliament.

In any case, to sum up, you need treaty change – or at the very least a solid promise of future treaty change – in the following four areas:

• an opt-out from ever closer union;
• an emergency brake for non-euro states;
• more powers for national parliaments;
• welfare benefits for non-British EU citizens.

The form

The chief difficulty seems to lie in your repeated insistence that any renegotiated package should be in the form of ‘legally-binding, irreversible guarantees’ when we know that no change to EU primary law is possible within the timetable you have set yourself for the British referendum – that is, before the end of 2017.

You are right to look for a precedent to what you are trying to achieve. The EU, like the UK, is a common law system. Precedent matters. The fact is, however, that there is no useful precedent in this case. President de Gaulle boycotted the Council in a huff in 1965 – and you are surely quite right not to follow his example.

The Danish and Irish governments asked for and got a series of decisions and declarations in both EU and international law when they were faced with the problem of trying to overturn referendum defeats. These devices worked to convince their respective voters to change their mind, but they did not materially change the meaning of EU law. They explained that the EU treaties said what they meant and meant what they said. Their purpose was to enable EU treaties that had been negotiated and signed by all to enter into force. No new opt-outs were thereby created. Denmark and Ireland eventually succeeded in ratifying the revised treaties whose intended effect was to deepen European integration.

By contrast, you are the first ever prime minister of an EU member state who is trying not to deepen integration but to do the reverse. In what is in rather a bold move, you are seeking to overturn the Treaty of Lisbon, which, having been signed by the UK government and ratified by the Westminster parliament has already been in force for six years. While you are perfectly entitled as a prime minister of a sovereign nation to breach the terms of any treaty, you will recognize the difficulty this poses for your EU partners who choose to mitigate sovereignty with interdependence. Quite how the EU will cope with such an open attack on its constitutional order is not certain – especially at a time when it has many other critical matters to deal with. It will not be a surprise to you to discover that in many quarters Britain is again being accused of breaking her word, ‘la perfide Albion‘.

Recognising the potential for opposition to your plans, you have shrewdly avoided asking for things that would be subjected to a parliamentary vote. You are well advised not to insist on a change to EU secondary legislation in the matter of welfare for mobile workers that would have to run the gauntlet of the European Parliament. Likewise, you are wise to avoid recourse to the organic ‘flexibility’ clause, Article 352 TFEU, which, by dint of your famous EU Act 2011, would trigger a vote in the House of Commons.

Promises, promises

While it is often said that the member states are the ‘masters of the treaties’, the Lisbon treaty has complicated matters by adding other players into the EU’s constitutive process. Proposals for treaty change cannot be made by the European Council acting collectively but only by individual states. Amendments can also be proposed by the Commission and/or European Parliament (Article 48(2) TEU). Both those institutions, together with national governments and parliaments, then sit down in a constitutional Convention to draft treaty amendments. The European Parliament, alone, decides whether or not to call a Convention (Article 48(3) TEU).

So a promised agreement by the European Council to amend the treaties in any particular direction can be politically binding (as long as you trust your colleagues not to change their mind later). But it would be neither irreversible nor legally binding unless it were to mandate expressly the President of the Commission, who is a member of the European Council, to begin a general revision of the treaties. I am wondering whether you dare put yourself in the hands of Jean-Claude Juncker?

The most you can hope to get out of the European Council is a form of promissory note that they will, when the time comes, aim to revise the Lisbon treaty in the way you want. Such a promissory note could take the form of an international treaty between the 28 states, lodged with the UN. But such a thing cannot touch directly upon the primary law of the EU.

The Vienna Convention on the Law of Treaties (1969), to which the UK and all other EU states are party, lays down certain conditions for the reinterpretation of existing statutes. It recalls that signatories sign treaties in their mutual interest (pacta sunt servanda), and in good faith. Treaties can be abrogated if there has been a fundamental change of circumstances (which, in this case, there is not). Denunciation of a specific clause (for example, ‘ever closer union’) is only allowed if it is not an essential basis of the whole treaty (which, in this case, it is).

So it may be possible to get the 28 to write a treaty that commits their own national parliaments to be more assertive in EU matters. And a draft emergency brake clause could be postulated in this way for the non-euro states. But it will not be possible by this method to alter a jot of the Lisbon treaty or to subvert the two cardinal principles of EU law when it comes to EU citizenship. And an intergovernmental agreement to allow 28 different interpretations of ‘ever closer union’ would be politically risible and legally unsustainable.

Such an international treaty would need to run the gauntlet of national parliamentary ratification in most, if not all, member states. It would be wide open to judicial review in national constitutional courts, and once lodged there a referral for a preliminary opinion to the European Court of Justice (Article 267 TFEU) on compatibility with EU law would be almost inevitable. Even were the judiciary to be compliant, the time taken to ratify this international treaty would run well beyond the end of 2017 by which time you are committed to hold your referendum.

The simple gets complicated

I must say that the recent reiteration of your demand for an EU Protocol to deal with the supposed problem of the non-Brits has confounded everyone. I understand that you have mooted the idea that this Protocol could be made under the simplified revision procedure (Article 48(6) TEU). Use of the simplified procedure presupposes unanimous agreement by all your colleagues in the European Council and the subsequent ratification of the instrument in all national parliaments or via referenda. But the simplified revision procedure also requires the delivery of a favourable opinion from both the Commission and European Parliament – and, of course, is open to challenge at the Court of Justice. Good luck with all that.

You say, Prime Minister, that you want Britain to remain a member of the European Union. As do I. So I know you will not mind my recording here in this open letter some of my misgivings about your Brexit adventure.

Yours sincerely,

Andrew Duff

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