29 April 2016

Policy Network: Can there really be a ‘new settlement’ between Britain and Europe?

[...] It is clear that a British vote to leave the EU, triggering the secession process, will convulse the whole union at a time when it can ill afford another blow to its stability. What is much less clear, however, are the likely consequences of a vote to stay. For one thing, the UK will retain all its present opt-outs – from the euro and banking union, from Schengen and from common policy in justice and interior affairs. The referendum campaign has had the effect of accentuating not reducing British exceptionalism: Cameron is the first British prime minister who says that sterling will never join the euro, and he goes unchallenged by ostensible pro-Europeans.

The UK’s hostility to European courts and fundamental rights has grown during the Brexit debate [...]

Implementing the Cameron deal

If the UK votes to stay, the decision of the heads of state and government on 19 February for a ‘new settlement for the UK within the EU’ will have to be implemented.  As was to be expected, the precise details of Cameron’s much-vaunted deal have played little to no part in the referendum campaign. Almost nobody can be found to support the prime minister’s claim that the deal has reformed the union for the better. Yet his decision, conceded by the European council, stands as a massive hostage to fortune.

In terms of secondary law the implementation of the decision will involve the complicity of the commission and the assent via co-decision of the European parliament, as well as the consent (tacit or not) of the Court of Justice. The proposed legislative changes challenge at least three guiding principles of EU law: free movement of EU citizens, freedom to work and no discrimination on the grounds of nationality. [...]This big legislative burden will be added to the pile of draft laws and hot political questions that the commission has kept waiting in the wings until after 23 June – including the follow-up to the five presidents’ report on EMU, the refugee crisis, revision of the posted workers directive, the creation of capital markets union, reform of the budget and own resources system, and TTIP.

The decision also requires the EU to change its treaties to exempt the UK from the historic mission of ‘ever-closer union’. The European council, in its wisdom, has agreed that the union shall no longer seek one political destination, but several. [...]

Soft Brexit

All in all, it is difficult to avoid the impression that a yes vote, especially if close, amounts to little more than a soft form of Brexit. The UK is set to continue to be a reluctant and detached member state of the union, more often than not weakening the drift of common policy, diluting the force of EU law, and then dissembling about the outcome. The combination of the 2016 decision plus the EU Act of 2011, which imposes on the hapless British voter continuing referenda on all future European treaty change, risks making life nigh impossible for any future more ‘pro-European’ British government. [...]

In the short term at least, the status quo will not apply after 23 June. Things will not be back to normal. Britain’s ‘special status’, consecrated by a vote to remain, will mark a parting of the ways. It is greatly to be hoped that, whatever the outcome of the British referendum, the rest of the EU will exploit the new situation to make swift progress towards the deepening of fiscal integration without which the economic and monetary union will not be saved.  Other shifts in competences upwards to the EU level, for instance in immigration policy, labour markets and energy supply, can follow on naturally from the qualitative move to fiscal and political union.

A new constitutional convention will in any case have to be called to give effect to Cameron’s Decision in terms of primary law, notably the opt-out of ‘ever-closer union’. The convention will be unable to avoid deep-seated democratic reforms to all the EU institutions. At that stage, the UK will have its last chance to discover a more truly European vocation, as the essayists in the new book advocate. Unless the British find their European feet, it will be sensible and necessary to craft some novel form of EU affiliation for the UK, short of full membership. If a soft Brexit turns out to be what most Brits want, soft Brexit will need to be regularised in treaty form. Otherwise the British will for evermore impede the settlement of federal union. Who says the EU isn’t democratic?

Full article on Policy Network

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