Daniel Hannan is an MEP for South-East England, and a journalist, author and broadcaster. His most recent book is How we invented Freedom and why it matters.
It’s hard to think of a more pointed rebuke. In advance of their meetings with David Cameron this week, Angela Merkel and François Hollande have jointly announced that they support the massive further consolidation of the EU, complete with a harmonised rate of Corporation Tax. Critically, they intend to pursue this deeper integration within the existing treaties.
Why does this matter so much? Because the entire UK strategy was tied to getting a new treaty. When David Cameron announced, back in January 2013, that there would be a referendum before the end of 2017, he thought, as did almost everyone else, that there would have to be a new Intergovernmental Conference to legalise the fiscal harmonisation required by the euro crisis. At the very least, it was assumed, there would need to be a new treaty retrospectively to authorise the bailouts, which had been patently illegal. The plan was therefore to strike a grand bargain. The United Kingdom would gladly support eurozone member states pursuing deeper integration through the EU if, in return, it was allowed to repatriate substantial powers to Westminster.
Well, the French and German leaders have made clear what they think of that deal. They could hardly have made themselves better understood if they had danced around waggling their fingers before their noses.
Hence the frantic downgrading of expectations by Downing Street. In the absence of a new treaty, the Prime Minister is focusing on things he can achieve by intergovernmental agreement or, indeed, simply through domestic legislation. Top of his list is the removal of benefits from EU nationals. You may have got the impression that there are fierce rows about this change. You may have heard other EU leaders suggesting that they are unhappy. You may have read some Europhile journalists – or perhaps simply lazy and gullible journalists – saying that the result hangs in the balance.
In fact, there is nothing the other member states can do to prevent such a reform. The reason Britain has to pay benefits to new arrivals, with no previous connection to the United Kingdom, is that we are unusual in having a non-contributory welfare system. Unlike 24 of the other 27 member states, we fund our benefits out of general taxation rather than requiring people to pay into a national insurance system before they can draw from it. Solving that problem is, in essence, a question for Westminster. It has almost nothing to do with Brussels.
Much the same applies to the other mooted reforms. Oh, sure, there’ll be a big fuss. There’ll be breathless reports of “last-ditch talks”. Continental leaders will be paraded before the cameras with miffed expressions to say that the Brits have secured a good deal. But the bottom line remains: no new treaty, no new deal.
We shall, in other words, remain members of the EU on the current terms, subject to common policies in foreign affairs, employment, criminal justice, social policy, environmental law, immigration and all the rest.
So what can the Prime Minister realistically do, if a new treaty is not on offer? Well, one major reform would be to tackle the objection which Eurosceptics have had ever since the early 1970s, namely that the EU law overrides the law of our own democratic institutions.
The EU Treaties are not like other treaties. They don’t simply bind their signatories as states; rather, they create a new legal order, which has primacy over national laws. When a parliamentary statute is deemed to conflict with a decision of the European Commission or the European Court of Justice, our own courts will automatically strike it down in order to uphold the EU’s supremacy.
The first time it happened was in 1989 in a case called Factortame. A number of foreign fishing vessels were registering as British in order to land the UK’s quota under the Common Fisheries Policy. When Parliament passed a law saying that, in order to qualify as a British vessel, the boat had to have some connection to the UK – either landing its catch here or having a British skipper or a certain proportion of British crew members – that statute was struck down.
In fairness, our judges were simply doing what the 1972 legislation tells them to. But the supremacy of EU law was not in the original treaties. Rather, as even Euro-federalists admit, it was asserted in a series of power-grabs by the European Court of Justice starting in 1963.
Since the early 1990s, most of the national supreme courts of the other EU states, including France’s Conseil d’État and Germany’s Bundesverfassungsgericht, have pushed back, taking opportunities to proclaim their own supremacy. But Britain, lacking a written constitution, has no chance to do so. We are therefore arguably in the weakest position, vis-à-vis the EU institutions, of all the 28 member states.
So here’s a concrete, practical, achievable step that Britain could take – a step which, again, requires no one else’s permission. We could amend Sections 2 and 3 of the 1972 European Communities Act to reassert the supremacy of Parliament. We could make clear that, in any conflict between Westminster and Brussels, Westminster has the final word.
Would the other member states regard this as, ipso facto, a British withdrawal? No. The jurisprudence has shifted since the early 1990s, when everything was interpreted in the most integrationist manner possible. Britain could plausibly claim that it was simply giving itself the same protections that other states are afforded by their constitutions and courts. True, some ultra-federalist lawyers might protest at such an interpretation. But, given everything that is happening in Europe, from the Ukraine crisis to the very real prospect of a Greek default, do you really imagine that anyone would seek to push Britain out over, in effect, a technicality?
As luck would have it, the Government has a natural opportunity to effect precisely such a change. It is moving to fulfil its manifesto commitment to, in effect, repatriate jurisdiction over the European Convention on Human Rights. To cut a long story short, it plans to remove the ultimate sovereignty of the human rights court in Strasbourg, so that its rulings are treated as advisory pending specific implementing legislation by Parliament.
This is, in itself, a benign and important reform. The problem with the European Convention has never been with the rights it adumbrates, only with their interpretation by a biased and politicised overseas tribunal.
Well, why not extend the same principle to legal acts by the EU? Why not reassert parliamentary control? Doing so would hardly bring the system crashing down. Plenty of EU acts already have, as it were, advisory status pending national legislation. I haven’t got space to get into the precise differences between EU regulations, directives, decisions, recommendations and opinions; but, believe me, precedent already exists.
Would a Sovereignty Act satisfy Eurosceptics? On its own, as a stand-alone measure, no. But as the basis of a different kind of relationship, yes, I think it might. I remember watching Enoch Powell at one of the last public meetings of his life, at the Bruges Group in the late 1990s. He was asked whether any change in our relationship with the EU would placate him. “Repeal or alteration of the 1972 Act,” he declared, adding, to the surprise of some in the audience, “I prefer alteration”. Recover the legal sovereignty of Parliament, he argued, and much else would change. If the Brussels institutions knew that they couldn’t simply make up the rules as they went along, that they remained ultimately answerable to national Parliaments, then their tendency to constant legal aggrandisement would be curbed.
He had a point. These things always come down, in the end, to who has ultimate power. “Who, whom?” in Lenin’s formulation. Only restore the primacy of national constitutions, and much follows.