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.
No one expected it to be so negligible. Observers were ready for a climb-down, not an abject surrender. Several Conservative politicians had been looking for an excuse – any excuse – to back the party leader, but can’t support a deal which serves only to demonstrate how intractable the EU is.
I was prepared to be one of just two or three Tory MEPs campaigning to leave, but the sheer emptiness of Donald Tusk’s announcement – no powers repatriated, Eurocrats and MEPs to decide on benefits claims, not even a legally binding opt-out from ‘ever-closer union’ – has turned some of my middle-ground colleagues into reluctant leavers. They will be campaigning to put themselves out of well-paid jobs – which tells you something about the piffling nature of what has been agreed.
Not that you’ll have needed telling, at least not if you read a newspaper. The striking thing about yesterday’s headlines was their near-unanimity. Supporters of the EU expected a roughing-up from the Express and the Sun; but the Mirror, the Guardian, the Independent and even the BBC also pointed out that the Prime Minister had fallen well short, not just of eurosceptic expectations, but of the meagre aims he had set himself. Only that Eurocrat house journal the Financial Times made a perfunctory attempt to sell the deal.
The renegotiation was originally designed as a mechanism to push undecided voters into staying. Remain strategists reckon that most swing voters are, as it were, fretful eurosceptics. They don’t like Brussels, but they are – as all human beings are – reluctant to change. As one pro-EU MP put it to me: ‘It’s like banks. We all moan about our banks, but very few of us move our accounts elsewhere.’ The calculation had been that fretful sceptics wanted to rationalise their risk-aversion. They wouldn’t care about red cards or competitiveness declarations. All they wanted was to convince themselves that something had moved Britain’s way, and that they were voting to remain for positive reasons rather than from cowardice.
That strategy went kaboom yesterday, like a malfunctioning mediaeval cannon, an exploding pot-de-fer, spewing flame and saltpetre all over its europhile artillerymen. The attempted renegotiation has shown beyond doubt that the EU cannot be reformed from within. If Eurocrats could not bring themselves to make concessions when their second-largest contributor was about to vote on leaving, imagine how vindictive they’ll be if we vote to remain.
The deal has, in short, has undermined Project Fear. Never mind the risks in leaving; we can now see the risks in staying. We can see the migration and euro crises unfolding across the Channel; we know that we’ll be dragged into them; and we know, now, that there is no way to protect ourselves within the existing treaties.
Can the Prime Minister undo the damage? Is there yet – it seems disrespectful not to use the mandatory cliché – a rabbit in his hat?
This site’s editor speculated the other day that any lapine prestigiditation would involve an apparent strengthening of parliamentary sovereignty, and I think he’s right. I’ve noticed that several ministers who are concerned with this issue have gone expectantly quiet, as have one or two eurosceptic lawyers. It must be attractive, from the Prime Minister’s point of view, to make changes that can be enacted domestically, through parliamentary legislation, without requiring the approval of other member states. So it was no surprise to hear the Prime Minister telling Boris Johnson at PMQs yesterday that there will shortly be legislation in this area.
The supremacy of EU over national law is what makes the EU different from every other international association. Unlike, say, the NATO treaty, which binds its signatories as states, the EU treaties have direct effect on individuals and businesses within the member states. This has always been the basis of the EU’s aspiration to political union. It’s what the row has been about all along. It’s why we’re having a referendum.
So, what would constitute a meaningful repatriation of sovereignty? What kind of rabbit, to pursue Paul Goodman’s Watership Down metaphor, would be a fierce General Woundwort rather than a deceptive Cowslip?
The answer would be a repeal of, or a major amendment to, Sections 2 and 3 of the 1972 European Communities Act, making clear that, in any conflict between a parliamentary statute and an EU regulation, the former had precedence. This wouldn’t mean, as EU supporters claim, the end of the single market. Britain could still be taken to court for non-compliance. But it would end the situation where our domestic courts must uphold EU rulings, even when they are plainly at odds with the treaties. This alone would serve to impose a measure of restraint on the Brussels institutions. If Eurocrats knew that their decisions would come into effect only following implementing decisions at national parliamentary level, they would be less keen constantly to seek to expand their jurisdiction through tendentious interpretations of the treaties.
Will it happen? After Tuesday’s wretched announcement, I doubt it. Donald Tusk’s letter was full of promises to ‘clarify’ things – promises which are now being furiously spun in London as new concessions rather than reiterations of the status quo (‘We’ll keep the pound! We won’t be joining Schengen!’ etc). My guess is that we’ll have something similar: a Sovereignty Act which verbally declares the sovereignty of Parliament without actually challenging the direct effect of EU legal acts or their precedence over national law.
We’ll be told, for example, that the EU’s Charter of Fundamental Rights won’t trump parliamentary decisions; but we were told precisely that when it was introduced, and it made no difference. As long as the European Court of Justice is ultimately in charge – and the Tusk letter expressly reaffirms that all the mooted clarifications are ‘in accordance with the treaties’ – sovereignty will remain at EU level.
No doubt the Prime Minister and his supporters will argue that the combination of a Sovereignty Act with the Tusk letter amounts to a new and unique status for Britain, a kind of associate membership. But nothing – literally nothing – will have changed. We won’t have opted out of the CAP, or the CFP, or the common citizenship rules, or the Common Foreign and Security Policy, or the European Arrest Warrant, or the VAT requirements, or the free movement rules, or the jurisdiction of the European Court of Justice. We’ll still be full members of the EU in every sense.
So much for the idea that Eurocrats might make concessions in order to keep us in. The concessions will come only when we vote to leave. That’s when they’ll take us seriously.