Brexit Rabbit Trick

Here is my piece over at Commentator about the emerging ‘settlement’ on the UK’s relationship with the European Union:

Even under benign conditions it is next to impossible within the EU to have a limited and controlled treaty renegotiation. Different member states queue up to press their respective cases for changes that suit them; plus, anything significant may end up prompting ghastly referenda in some member states.

Once those pesky voters express themselves, anything can happen. How London chortled in 2005 when French then Dutch voters threw out the EU’s proposed ‘Constitutional Treaty’.

As things stand, there is no appetite in EU capitals for any treaty renegotiation, let alone a treaty renegotiation to satisfy the moaning Brits. See the horrible gyrations of Brussels and Berlin within the existing treaty framework to keep the Eurozone crisis from blowing the EU project out of the water.

Facing a brick wall across Europe in making his case for any substantive change in the UK/EU relationship that involves treaty change, David Cameron has had to manoeuvre in a murky area of commitments, declarations, understandings, ‘decisions’ and political agreements that may have operational weight but are not legally binding.

This is the key Brexit point, folks. Unless you change the Treaties, you change nothing that counts in substantive sovereignty terms. The Prime Minister seems to think that the provisions of this ‘settlement’ will be legally binding. Looks unlikely, and in any case it’s the European Court of Justice that decides that one, not us.

The passages on sovereignty are more interesting:

“References to an ever closer union among the peoples of Europe do not offer a basis for extending the scope of any provision of the Treaties or of EU secondary legislation. They should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties.”

Really? Does the ECJ agree? What if it doesn’t?

Exactly.

The usually sane Martin Kettle in the Guardian urges us to read the detail:

Different paths for different states are recognised, specifically in the UK’s case. National parliaments are given more powers to block EU laws. That’s what the UK wanted and it’s what the UK got.

Well, no it’s not. Do indeed read the detail. What this one boils down to is this:

A largely unworkable new mechanism is proposed to allow an as yet unspecified number of national parliaments to ask the European Council to back away from any decision that those Parliaments say impinges on ‘subsidiarity’ (ie the principle that where possible EU decisions are taken ‘closer to the citizen’). The Council will then to try to meet those concerns. It would have made sense to give a strong role to national parliaments when the Lisbon Treaty was negotiated. This is a distant second-best.

Insofar as this plan makes any sense, it is likely to be so cumbersome in practice that it makes no difference.

Conclusion?

But the result is still a desultory package that does not amount to a serious, radical and legally binding ‘New Settlement’ for the UK. That’s because without forcing treaty change the scope for agreeing anything meaningful really is reduced towards nothing.

How to force treaty change? Invoke Article 50 of the Lisbon Treaty and announce the intention to withdraw from the EU completely. That compels the EU (and the state concerned) to draw up a brand new relationship where nothing is off the table. Painful and damaging this might be, but at least it gets everyone honestly to the heart of the real issues and sets a principled way forward.

David Cameron did not want to do that. He maybe thought (not unreasonably) that the Eurozone crisis would compel EU capitals to go back towards first principles and open a treaty renegotiation within which some serious UK concessions could be achieved.

But this has not happened. Hence now this footling, if not embarrassing, pile of not much.

Anyway, David Cameron and other EU leaders are busy trying to make this hotchpotch look bigger and more important than it is, in the hope that the British people in the eventual Brexit referendum will agree with them. Thus the PM’s latest major speech last night in Hamburg:

We have always been a country that reaches out. And I never want us to pull up the drawbridge and retreat from the world.

A straw drawbridge. (Strawbridge?) No-one is suggesting that. Brexit advocates indeed want the UK to have more energetic relations outside EU treaties with the rest of the planet.

So when it comes to the question of Britain’s future in Europe, my aim is clear: I want to keep Britain inside a reformed European Union.

Good plan. But the proposed settlement is far short of a ‘reformed EU’. You can’t reform the EU without changing the treaties!

When we ask for clear rules for both those in the Euro and those like Britain who are not going to join, again these changes are in our shared interests.

We need a successful Eurozone – and success for those who choose not to join.

Fine. But read the detail. Nothing in all this affects the legal rights under the treaties of Eurozone members, including doing what it takes to keep the Eurozone staggering on, even if this works directly against key UK interests:

Oops.

And when Britain says we need to have a Europe that respects nation states and that says we should be able to run our own welfare systems – those are calls that I believe resonate around Europe.

So if by working together we can achieve these changes, then I will unequivocally recommend that Britain stays in a reformed European Union on these new terms.

Of course, if we can’t then I rule nothing out. But I believe we can – and if we do, I believe we can win that referendum and that will be good for Britain, good for Germany and good for the whole of Europe.

Note the slippery language here: “a Europe (sic) that says we should be able to run our own welfare systems”. The ‘settlement’ tinkers around the far edges of welfare benefits, and even then in a time-limited way. There is no ‘reformed EU’ because there’s no treaty-change. That’s it!

Conclusion?

One way to look at all this is to ignore it. The arguments about the UK staying in the EU or leaving it go far beyond such modest tinkerings: let’s have that debate and not waste time on this faux Euro-theatre, where different players emerge on stage lugubriously to proclaim this settlement to be a painful set of concessions to London.

The trouble with that is that the PM abetted by Angela Merkel has made such a drama of this package that it risks defining UK impotence and Cameronian double-dealing.

I was on LBC radio this morning talking about this. The presenter wondered whether the PM would ‘pull another rabbit from the hat’ in a new political magic trick.

Maybe. But in this case the magic is not the trick. It lies in persuading us that this obviously small dead rabbit is large and alive and flourishing.