Whether over opt-outs, expansion or sovereignty, British prime ministers have consistently been outmanoeuvred by Brussels
Britain’s recent negotiations with the European Union bring to mind my experience when I visited South Vietnam in 1967. A postgraduate studying electoral politics at Nuffield College, Oxford, I was on a freelance trip for The Times to observe the presidential elections in that then-war-torn country. The newspaper had offered barely enough money to cover my costs, so I tried to exchange pounds for piastres on the street. The rate was very good. But when I counted out the dirty notes, I found that low denominations had skilfully been mixed with the higher ones. The higher ones were on the top, the small ones were in the middle. Some notes had been folded so that they were counted twice. I’d been cheated.
Determined to do better the next time, I instructed the next street dealer I encountered to place each new currency note slowly into my hand so that that there could be no trickery. Somehow — I still don’t know how — he deceived my eyes like a conjuror. So the third time, I devised a new, foolproof method. I invited the dealer to do the exchange at a restaurant table and to place each note into an envelope. Guess what?
It took me three goes to learn my lesson. It is some comfort to my ego that a succession of fine British political leaders have been even more prone to falling for the standard ploys in negotiations with the EU.
In 1988, Prime Minister Margaret Thatcher railed in her famous speech in Bruges against the emerging “European superstate”. Yet she herself had been persuaded only two years earlier to agree to the Single European Act that set the objective of creating a single market by 1992, arguably the greatest step toward that very superstate. In October 2000, when a Charter of Fundamental Rights was proposed as part of the Nice Treaty, Labour’s Minister for Europe, Keith Vaz MP, gave the assurance that the inclusion of 54 rights “would have no greater legal standing before EU judges than a copy of the Beano or the Sun”. (For foreign readers, the Beano is a children’s comic.)
The then Prime Minister Tony Blair’s official spokesman, Alastair Campbell, said: “Does it mean that European judges can overturn the law of national governments and parliaments on the basis of this charter? The answer is no. We are happy to sign the charter. It creates no new powers for Brussels.” The Charter, claimed Campbell, was no more than a political declaration and a “showcase” of existing rights. Despite its attempts to depreciate the charter, the government made clear that it would veto any attempt to make it legally binding in EU treaties.
It took less than a decade for the UK to sign up to the next treaty, the Lisbon Treaty, which gave legal effect to the Charter of Fundamental Rights, albeit with a UK opt-out. The trick was that — as revealed in a detailed House of Lords inquiry — the opt-out would be virtually ineffective.
To recount more fully the succession of soothing statements to British electors minimising the consequences of each new EU treaty would merely be repetitive. It is hard to tell whether UK governments have themselves been under illusions or whether they knowingly have wished to spread them. One reason why British politicians have found themselves serially incapacitated, if not deceived, is simple. Since the start, the European Union “project” has always been an undertaking of cross-national bureaucratic elites. Major matters of principle have been wrapped up in highly complex details so that decisions have been taken without any conscious political choice either by national political leaders or by their electors.
It was typical that the lengthy exercise undertaken by the Conservative-Liberal Democrat coalition of 2010-15 to examine the so-called “balance of competences” between the UK and the EU should have been largely influenced by a “Senior European Experts Group”, most of them former senior foreign policy mandarins. They included a few whose British public service was followed by attractive forms of EU employment, as well as others who had held high positions at the European Commission.
In view of the way in which the “balance of competences” review was conducted, the report on EU enlargement is not surprising. The extensions of the EU currently being prepared within the Brussels bureaucracy will have a profound influence on the future character of the UK if it votes in June to remain within the EU and if, as would then almost inevitably follow, inhabitants of the newly-admitted countries were then entitled to enter and work in Britain after a relatively short period. It used to be said that enlargement would be in the British interest because the more countries that joined, the harder it would become to “deepen” European integration. In fact, enlargement has subsequently been used as a further argument for extending the centralisation of authority in Brussels.
In 2014, the Foreign Office reported that eight countries with a total population of more than 95 million will possibly join the EU. Six of these are in the Balkans. The other is Turkey (population 76 million). In addition, there is the far-reaching and controversial EU “association agreement” with Ukraine (population 44 million). This was signed in 2014. Apart from establishing a free-trade area within ten years, the agreement commits Ukraine and the EU to promote a gradual convergence toward the EU’s Common Security and Defence Policy and European Defence Agency policies.
Considering the low income levels of the candidate nations, the potential for immigration from them following their accession to the EU is high. The position of the British Government is seemingly contradictory. On the one hand, it is committed to reducing net immigration to tens of thousands a year. On the other hand, support for Turkish membership of the EU would (if successful) greatly increase the inflow. There is a considerable degree of calculated double-speak. As I heard recently from a senior British figure, support for Turkish admission to the EU is predicated on the assumption that it won’t actually happen or, at least, not soon. Such support may therefore be expressed in order to consolidate Turkish support for Nato, to attain Turkish agreement to short-term measures to curb immigration of Syrian refugees, and to avoid the opprobrium of being the country which says “No” to Turkey, on the basis that another country will do so instead. The Chancellor, George Osborne, expressed similar sentiments last month.
The issue of unlimited Turkish immigration (supposedly in 10 to 15 years’ time but probably less) is particularly sensitive because those opposing it sometimes express Islamophobic views. It is virtually impossible to estimate the number of Turkish immigrants, as the Home Affairs Select Committee of the House of Commons found when it investigated the matter in 2011. Nevertheless, it stands to reason that a British open door to inhabitants of poor East Mediterranean countries with a combined population of nearly 100 million would be transformative. Relegation in the Foreign and Commonwealth Office’s “balance of competences” report of 2014 of the migration issue resulting from likely EU enlargement was irresponsible and unrealistic. The matter calls for prominent, though grown-up debate in the run-up to the EU referendum.
Recent concessions were made to Turkey about visa-free travel to the Schengen area and about putting Turkey’s EU accession on a fast track in return for Turkish cooperation concerning the flow of refugees from Syria. The argument that such accession has been kicked into the long grass is even weaker than before.
Even if the immense issue of Turkish accession to the EU is set aside, referendum discussions surely need to address the broader matter of whether constant EU expansion is in Britain’s interests. According to current EU doctrine, membership should be open to any democratic European country. Not only are the boundaries of Europe ill-defined, it is uncertain also why democratic internal government should be a sufficient criterion for EU membership. Surely, there must come a point at which size and diversity make “ever closer” integration across national borders impractical or undesirable.
During the recent UK/EU negotiations the vital matter of national sovereignty has been finessed by a convenient formula. In a future EU treaty, the UK is to be permitted to remain an EU member state without a commitment to the aspiration in the preamble to the Treaty of Rome in 1957 of “ever closer union”. That, said the unnamed senior figure mentioned earlier, will make it possible for the UK to remain signed up to the Charter of Fundamental Rights without the possibility of European federalism imposed by the judges of the Court of Justice of the European Union in Luxembourg. This is the court responsible for judging cases involving the Charter.
The trouble with vague formulae, designed to mean different things to different parties to an agreement, is that they lead to later problems and accusations of bad faith. Just as the UK opt-out from the EU Charter of Fundamental Rights turned out to be ineffective, it is safe to predict that the new opt-out from “ever closer union” will mean little to those in the UK who are concerned with the preservation of national sovereignty. If, for example, the EU court at Luxembourg reaches a verdict which, in British eyes, contributes to “ever closer union” and which ignores the agreed UK opt-out, which body is to determine whether the Luxembourg court has exceeded its authority? One suspects the answer would be that those same judges in Luxembourg would claim the authority to decide whether they had acted within their authority.
Moreover, the effects of the loss of sovereignty incorporated in the Lisbon Treaty of 2009 have yet to be felt fully. The Nice Treaty introduced the Charter of Fundamental Rights as a set of symbolic aspirations. The Lisbon Treaty then made these rights legally binding. While public attention within the UK was absorbed by the quite separate and relatively weak European Court of Human Rights in Strasbourg, this far stronger attack on parliamentary sovereignty proceeded with far less notice or objection.
There are solid and extremely alarming reasons to fear future judgments of the Luxembourg court, now that the EU’s Charter of Fundamental Rights has gained legal effect. The rights themselves are considerably wider than those incorporated in the European Convention on Human Rights (a creation of a separate international organisation, the Council of Europe). They include a range of social and economic rights expressed in such wide language as to open the door to litigation.
In November 2013, the then Lord Chancellor, Chris Grayling, wrote that the vagueness of the Charter of Fundamental Rights “put huge power in the hands of European courts. They have freedom to challenge our laws, and our parliament is powerless to stop them unless the Treaties themselves are rewritten. . . . I think it’s time for all of this to change. We cannot go on seeing crucial decisions about our society and our system of justice and government being taken by unaccountable international courts.” He gave an assurance of “wholesale changes” as part of a renegotiation of “our membership of the European Union”.
Grayling’s reference to the powerlessness of parliament, in the face of rulings by the Luxembourg judges in future cases based on the Charter of Fundamental Rights, referred to the fact that such rulings (unlike those of the European Court of Human Rights) automatically become binding under British law and remain so unless the UK withdraws from the EU. The Government’s legal advisers have been considering various possible ways to circumvent this inconvenient reality, but it is no coincidence that long-promised proposals have not yet been published.
What is so worrying about the state of public discourse about British membership of the EU is that there has been such little discussion of the core questions. There is still time to bring them to the centre of the referendum debate — but not much time remains.