David Cameron is insistent that the UK should no longer be bound by the principle of 'ever-closer union'. This stance has been necessary to limit dissent from Eurosceptics within his own party. But how can the prime minister negotiate on this demand?
David Cameron sets great store by his insistence that the treaty language on ‘ever-closer’ union should no longer apply to the UK. Pro-Europeans tend to scoff at this, but for him it is of deeply significant importance. It is vital in convincing Conservative sceptics that it is worth Britain remaining in the EU. Essentially the prime minister is targeting his renegotiation strategy at those Eurosceptics whose constant refrain is that ‘the British people voted to join a common market in 1975, but never to join a political entity which is now the European Union’. Cameron and George Osborne want to claim that they are taking Britain’s EU membership back essentially to the original motivation and justification. For them, establishing clear blue water between Britain and the continental concept of ‘ever-closer’- union is deeply laden with a vital political symbolism.
We caught a glimpse of this in Cameron’s June 2015 European council statement to the House of Commons:
We will put the common market back at the heart of our membership, get off the treadmill to ‘ever-closer’ union … It will not be the status quo … it will be a membership rooted in our national interest and a European Union that is better for Britain and better for Europe too …
The chancellor too has talked in similar terms, about making our membership of the EU again all about “a single market of free trade”.
Of course this whole line of argument is tendentious and historically inaccurate. In the 1960s and 70s it was the anti-Europeans who opposed British membership of the ‘common market’, to which they attached all kinds of adverse connotations for British farmers, in higher food prices, denial of access to cheap New Zealand lamb and butter, and on the left, free market rules that would inhibit the potential for socialist planning. In the same era it was the pro-Europeans who advocated support for the ‘European Community’ as a new coming together of Europe which it was in the British national interest to join. On the Labour side of the debate, pro-Europeans such as George Brown as foreign secretary launching Britain’s second application to join in 1967 and Roy Jenkins as chancellor of the exchequer producing a white paper on the costs and benefits of UK membership in 1969, accepted that the economic arguments for membership were finely balanced, but the political arguments decisive. On the Conservative side both Edward Heath, but also Margaret Thatcher, made a powerful case for British membership on political grounds.
During the 1975 referendum campaign the government issued a 16-page pamphlet to every voter setting out its views. The pamphlet’s title was Britain’s New Deal in Europe. On page five it set out the aims of the common market:
• “ To bring together the peoples of Europe”
• “To raise living standards and improve working conditions”
• “To promote growth and boost world trade”
• “To help the poorer regions of Europe and the rest of the world”
• “To help maintain peace and freedom”
These are ambitious and progressive political objectives for an entity whose only rationale was allegedly the promotion of free trade! Yet ‘we only ever voted to join a common market’ is a myth that anti-Europeans over the last three decades have propagated with so much success that it is widely believed.
A depressing fact of political discourse is that once the grip of myth over a political debate is established, it is very difficult to break. Most politicians accept (and this may of course be one reason why the public today so detests establishment politics) that they have to work within a set frame of public discourse, however mythical and inaccurate its origins. If they are wise, Cameron and Osborne should be honest with our partners about this: their opposite numbers are ‘after all’ politicians and have to work within the same constraints in their own countries.
Doctoral theses can be written on the legal and practical significance of the reference in the treaties to ‘ever-closer’-union. Edward Heath fully accepted the phrase in the UK treaty of accession as it had been contained in the 1957 treaty of Rome to which the UK was then committing. He could do no other, and would not have wanted to anyway, nor did Harold Wilson seek to make any such change in his 1974-75 ‘renegotiation’. ‘Ever-closer’ union never appeared to trouble that great French patriot and sovereigntist, Charles de Gaulle. De Gaulle never imagined that it implied a binding commitment to a United States of Europe.
In any event, the present treaty text is a modification of the original Rome version. It now calls for an “an ‘ever-closer’-union of the peoples”, not, pointedly, the member states, and goes on to add that this union should grow closer in a Europe which acts only on the principle of subsidiarity. John Major secured this amended version at the Maastricht summit in 1991. Of course there undoubtedly are some who would argue that it is an insult to British national pride that we should be bound by treaty to like the French! But the 1992 version of ‘ever-closer union’ should not trouble those supporters of Britain’s EU membership who believe in a European Union that is neither federal, nor centralised and where the nation states continue to play a leading role.
However, the sentiment of ‘ever-closer’ union clearly grates with Eurosceptics in Britain as a lingering symbol of a ‘United States of Europe’ ambition. Tony Blair as prime minister felt this. He actually succeeded in removing ‘ever-closer’ union from the original draft of the failed constitutional treaty in 2003, but it later reappeared, essentially because Blair had more important British objectives to secure in those negotiations. Some politicians on the continent are as deeply attached to pro-European symbolism, as the British in all parties are to stamping on it.
At the June 2014 European council, Cameron succeeded in securing agreement to a political interpretation of what ‘ever-closer’ union means today:
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.
Cameron now wants to go further and secure a formal British opt-out from ‘ever-closer’ union. He is not insisting on a treaty change that would apply to all member states, but wants to cut a special deal for Britain.
If this demand was viewed simply on its own merits, it would undoubtedly encounter some fierce resistance. Why should the UK now secure an opt-out from a founding principle of a treaty that it signed 43 years ago? If Britons have lived with the supposed mandate for ‘ever-closer’ union for over four decades, what is the problem? The EU still seems some considerable distance from the realisation of a ‘United States of Europe’.
There is also awkward politics at stake for our partners. Why agree to a high-profile symbolic retreat from the general commitment to European integration by a single member state, when the EU itself faces powerful forces for disintegration from within? Who would be the next to follow? How would the anti-European populists in other member states make use of such a significant concession to Britain? Why should François Hollande agree to a change in order to ease David Cameron’s political problems with Ukip and its Tory sympathisers, when the National Front’s Marine Le Pen (who represents a far greater threat to Hollande’s politics in France than Farage does to Cameron’s politics in Britain) will criticise him for weakness in not securing similar anti-European symbols for France?
Cameron may well try to link his demand for an opt-out from ‘ever-closer’ union to his acceptance of the need for closer integration by other member states, particularly the eurozone. Superficially this sounds as though it has certain symmetry, but in practice it raises further questions. Would the abandonment of ‘ever-closer’ union apply to all states outside the eurozone? Some ‘euro-outs’, possibly in eastern Europe (Hungary for example), might quite like that, but not all: there are others where the domestic commitment to being part of European integration is very strong.
Then there is the question of the practical effect of any UK opt-out. What would change as a result? Does the removal of a British commitment to ‘ever-closer’ union rule out closer British cooperation in future in other non-euro fields such as defence and external relations, energy and climate change, migration and asylum? Would it be seen as giving the British a right to opt-out of any future piece of legislation to which they objected? Why should the British have the right to be members of a ‘pick and choose’ Europe, when the basic principle of European integration is that the same set of rules should apply to all – even though the existence of much ‘variable geometry’ means that this principle is sometimes honoured only in its breach.
The council and commission lawyers will almost certainly find a way through this minefield. What might be possible would be a commitment from our partners to include the June 2014 European council statement in a legally binding protocol that in due course would become part of the treaties. Our partners might accept an addendum that the UK does not see its commitment to membership of the EU (and all its treaty obligations) as extending to the goal of ‘ever-closer’ union. But the price of such an agreement will in all likelihood be new language drafted by the council legal service, that would clarify that a British opt out from ‘ever-closer union’ could not be used more widely by Britain to opt-out of its existing and future EU legal obligations.
In other words, Cameron could claim victory in securing the removal of a piece of unwanted symbolism, but nothing of any substance would change.
More powers for national parliaments
The other aspect of Cameron’s sovereignty agenda is to increase the powers of groups of national parliaments to question unwanted EU legislation. This is where in ‘Europe-speak’ the mechanisms of the ‘yellow’ and ‘orange’ card, and possibly a ‘green’ card come into play. William Hague as foreign secretary made much of his ambition to strengthen the power of national parliaments, but since his departure from the government, it is not clear whether this objective remains a high priority.
The Lisbon treaty contains a ‘yellow card’ provision: where a third of national parliaments question a piece of proposed legislation, the commission must think again. Where half of national parliaments object, an ‘orange card’ comes in play where the commission must not only think again, but put the matter to the council of ministers. The House of Lords European Union select committee has proposed in addition a new ‘green card’ – under this arrangement, a group of national parliaments could take a positive initiative in proposing the need for legislative change.
Existing arrangements could be strengthened without treaty change, if there is a will by other member states to do so. This means overcoming the objections of national officials in several member states, including Germany, who believe it is difficult enough to get agreement to legislative action within the EU without putting in place additional potential obstacles. However, their national parliaments, when consulted, tend to disagree.
One possibility is to beef up the role of an obscure Brussels body called Cosac that represents the EU committees of national parliaments. Cosac could give earlier warning of impending new legislation to national parliament scrutiny committees, and more actively coordinate their responses in order to make the Lisbon treaty provisions more effective. The time limits by which national parliaments can make representations could be extended. The grounds for national parliament objection could be widened to include proportionality as well as subsidiarity.
The Conservative-Liberal Democrat coalition government of 2010-15 conducted a comprehensive ‘balance of competences’ review, involving detailed public consultation within the UK, to test the proposition of whether there were EU ‘competences’ that should be returned to the member states. After hundreds of pages of analysis in a series of departmental reports, the overall conclusion reached was that the ‘balance’ was broadly right and not much change was needed. William Wallace, the Liberal Democrat minister responsible for European questions in the House of Lords, took a close (and in terms of time commitment, heroic) interest in this thorough Whitehall exercise. It came up with conclusions many Eurosceptics did not like, but nonetheless Conservative ministers signed up for. This now makes it difficult for a majority Conservative government to argue for ‘repatriation’ of powers. For once the Eurosceptics were corralled.
Across the EU, however, there is great sympathy and huge support for stronger application of the principles of subsidiarity and proportionality (power ‘flowing back’ as Cameron elusively puts it) but not at the expense of the single market’s disintegration. Before the new European commission took office at the end of 2014, the Dutch government advocated the idea of a new inter-institutional agreement between the European council, parliament, and commission on how the competences of the EU should be exercised in the future. The purpose of this exercise would be to reinforce a narrower focus on key policy priorities, strengthen the system of legislative impact assessment, give new dynamism to the process of regulatory review of the existing acquis (accumulated legislation), and add real substance to the principles of proportionality and subsidiarity in how the EU acts. Since his appointment as first vice-president of the commission, Frans Timmermans is trying hard to put these principles into practice. The commission’s legislative agenda has been cut back to the bare essentials. A comprehensive ‘better regulation’ initiative has been launched. From the UK government’s perspective, this is very good news, but the government needs to do much more to acknowledge it – and bank it as a positive achievement of British-friendly reform.
However, for hardline British Eurosceptics, whatever changes are made to the role of national parliaments in the EU legislative process and however much effort is expended in applying the principles of proportionality and subsidiarity, this will not be enough. The ‘holy grail’ of British Euroscepticism is a unilateral right for the British parliament to ‘disapply’ EU laws in the UK. In terms of negotiability, this demand is totally unattainable because once conceded in a single member state, it would lead to the disintegration of the EU. Cameron knows this and has been clear that it is only collective action by a group of national parliaments he aims to reinforce. Yet for dozens of Conservative Eurosceptic MPs, this impossibilist demand – ‘impossibilist’ because they know it to be unattainable – remains their bottom line.
Roger Liddle is co-chair of Policy Network. He is the author of the forthcoming book, The Risk of Brexit: The Politics of a Referendum, from which this article is taken