Committed campaigners for Remain and Leave have at least one view in common: a contempt, sometimes scarcely veiled, for David Cameron’s renegotiation. The latter denounce it as a depreciating sham; the former view it as tiresome distraction – irrelevant to the main question of whether Britain should stay or quit the EU.
Today’s headlines are a reminder that the media’s take is no different. The Prime Minister has backtracked on his demand for an “emergency brake”. Originally, it was to apply to the number of migrants entering Britain. Now it is to apply only to the benefits they claim – which have little effect on why they come in the first place. Furthermore, the EU institutions and European leaders say that it won’t come into effect for months, if not years. And the British Government won’t even control it in the first place.
Cameron will doubtless win some concessions before the European Summit next month but, whatever happens in the referendum (whenever it comes), he is set to get a frightful beating from Fleet Street, Brexit-backing Conservative backbenchers and the opposition whenever his renegotiation is complete. Cabinet Ministers and others may quit.
The Prime Minister is no fool and grasps this very well. He will also know that the best course to take in such circumstances is a familiar one: change the subject. That would mean pulling a rabbit out of his hat. What might it be?
Magicians attempting such conjuring tricks tend not to reveal their hand in advance, but I wonder if the answer lies in an item floated a few weeks ago by Tim Shipman of the Sunday Times. “After the deal with fellow EU leaders is concluded,” he wrote, “Cameron will reveal that he is changing domestic law to make clear that parliament is sovereign and Britain’s courts are not bound by Europe’s Charter of Fundamental Rights.” Any such sleight-of-hand would have a beguiling appeal.
Sovereignty is a central Eurosceptic preoccupation, at least on the centre-right. Only last weekend, it was reported that John Baron and 40 other Conservative MPs want to meet the Prime Minister to discuss its place in his renegotiation.
Daniel Hannan has written on this site about tearing up Articles Two and Three of the 1972 European Communities Act, which establish the primacy of European law in Britain. When polled, a thumping 84 per cent of Party member readers of this site backed such a move.
One view of the effect of a Sovereignty Act that scrapped those articles is that it would drive a coach and horses through Britain’s EU membership, since the courts would no longer hold EU law to be supreme (though some judges would doubtless not take such a view) and the Commons could over-ride laws and rulings from the EU institutions as it pleased. Whether this take holds or not, the beauty of any plan along these lines from Cameron is that it would not require treaty change.
It would also muddy the waters over ECHR reform, since voters often confuse the two European courts – the European Court of Human Rights and the European Court of Justice, whose formal role includes making decisions in relation to the Charter.
However, it is hard to imagine the Prime Minister simply caving into a long-standing Eurosceptic dream item, and throwing the Government’s weight behind scrapping Articles Two and Three. Shipman wrote that Downing Street is instead looking at establishing a British equivalent of Germany’s Constitutional Court.
Such a scheme would have two useful spin-offs for Cameron and George Osborne’s plans for the Party – and the leadership succession. First, Boris Johnson has toyed with the idea of scrapping Articles Two and Three. So a move on sovereignty might help to put him back in his box. Second, the Minister tasked with exploring the constitutional court plan is, according to Shipman, Michael Gove. So any successful scheme would help to keep this senior Eurosceptic Minister on side with Number Ten.
Any exploration is bound to involve Dominic Raab, Gove’s junior minister, who knows his constitutional stuff. However, the Justice Secretary may want to keep his ECHR reforms separate from the EU renegotiation. I am told that Oliver Letwin, integral as he is to any key plan at the centre of government, is taking a separate interest.
All may come down to whether Gove (or anyone else) can square the circle of reconciling British sovereignty with EU membership. Needless to say, I am sceptical, to say the least. Is Cameron’s animal more likely to be a fierce bad rabbit with teeth and claws – like Watership Down’s General Woundwort – or, as Hannan has suggested to me, “a clapped-out, half-blind, myxomatosis-ridden coney”?