Heath lied to us – by Christopher Booker

This article speech was based on a speech delivered  at an event in 2001 to mark the 12th anniversary of the founding of the Bruges Group. You can access the original here.  

There are some in this country who fear that in going into Europe we shall in some way sacrifice independence and sovereignty. These fears, I need hardly say, are completely unjustified.”

Prime Minister Edward Heath, television broadcast on Britain’s entry into the Common Market, January 1973

This country quite voluntarily surrendered the once seemingly immortal concept of the sovereignty of parliament and legislative freedom by membership of the European Union … as a once sovereign power, we have said we want to be bound by Community law.

Judge Bruce Morgan, judgement in Sunderland metrication case April 9, 2001

Preface

I am grateful to the Bruges Group for the chance to expand on a talk I gave to their 12th anniversary meeting in February 2001, and which I rather frivolously suggested might be entitled “Having Made Our Bed, Must We Continue To Lie In It?”.

The starting point for my talk was the release under the 30-year rule last January of documents relating to Britain’s application to join the Common Market in 1970. What these papers revealed more starkly than ever before was just how deliberately the Heath Government and the Foreign Office set out to conceal from the British people the Common Market’s true purpose. They were fully aware that it was intended to be merely the first step towards creating a politically united Europe, but they were determined to hide this away from view.

It may no longer be particularly shocking to see such clear evidence of a British Government’s dishonesty over our relations with ‘Europe’, if only because this is something which has since become so familiar. Scarcely a day now goes by when British politicians and civil servants do not make statements relating to the European Union which can be shown to be based at best on concealment of the truth or even on direct falsehood.

The purpose of this paper is to explore the fundamental reason why our involvement with ‘Europe’ has introduced into our politics a culture of deceit which is quite new in our history, not least by obscuring the scale on which it is changing the entire way in which our country is now governed.

In the light of the European Union now making the final moves towards political integration, it is particularly urgent that the nature of this culture of concealment should be analysed and more widely understood.

The Strange Case of the Werner Report

It is not often a British Prime Minister remains active in politics long enough to be caught out by secret papers released under the 30-year rule from the time he was in office. But such was the case in January 2001 when the Public Record Office at Kew opened the files relating to Edward Heath’s application to join the Common Market in 1970.

The most striking of these documents were those reflecting the Heath Government’s reaction to something called ‘the Werner Report’. In 1969, the Council of Ministers had commissioned the Prime Minister of Luxembourg, Pierre Werner, to draw up a plan to move the Common Market forward to full economic and monetary union. As luck would have it, his confidential report began circulating in Brussels in October 1970, just as Britain’s negotiations to enter the European Economic Community were getting under way.

In the British Foreign Office, as we can now see, the Werner Report rang fearful alarm bells. A secret briefing note to Mr. Heath from Con O’Neill, the senior civil servant responsible for Europe, explained that, if implemented, Werner’s proposals would have enormous political repercussions. They envisaged“a process of fundamental political importance, implying progressive development towards a political union”. The long-term objectives of economic and monetary union, it was made clear to Mr Heath, “are very far-reaching indeed”, going “well beyond the full establishment of a Common Market”. The Werner plan could lead to,

the ultimate creation of a European federal state, with a single currency. All the basic instruments of national economic management (fiscal, monetary, incomes and regional policies) would ultimately be handed over to the central federal authorities. The Werner report suggests that this radical transformation of present Communities should be accomplished within a decade”. (PRO/FCO 30/789)

Such a political and economic union, possibly also including a common defence policy, would thus involve a massive loss of national sovereignty, which would ultimately leave member states with somewhat less power “than the autonomy enjoyed by the states of the USA”. But what alarmed the Foreign Office was not the contents of the Werner Report. Mr Heath and his ministers did not throw up their hands in horror and say “good heavens, we had no idea this was what the Common Market is about. We could not possibly accept such a thing”. On the contrary, when Geoffrey Rippon, the minister in charge of our negotiations, went to see M. Werner on October 27, the minutes of their discussion show that Rippon went out of his way to congratulate him on his report, which he said “well stated our common objectives”. Privately, Her Majesty’s Government had no objection to the political union Werner was proposing. (PRO/CAB 164/771)

The only real concern of Mr Heath and his colleagues was that this plan should not be talked about too openly in public, because this might so inflame public opinion that it would be much harder to persuade Parliament and the British people that it was in their interests to join what they were being assured was no more than a ‘common market’, intended to boost trade.

It was vital, Mr Rippon urged on M.Werner, that this goal of political and economic union should be achieved only in a “step by step approach”, because“it was natural for people to be afraid of change” and “part of his problem in Britain was to reassure people that their fears were unjustified”. When these documents were released 30 years later, this was confirmed by a retired Foreign Office official Sir Crispin Tickell, who had played an intimate part in Britain’s Common Market negotiations as Geoffrey Rippon’s private secretary and was present at the meeting with Werner. In a BBC interview Tickell frankly admitted that, although worries over Britain’s loss of sovereignty had been“very much present in the mind of the negotiators”, the line had been “the less they came out in the open the better”. Here was chapter and verse to show how politicians and civil servants had been party to a quite deliberate attempt to hide from the British people what Britain’s entry into the Common Market was letting them in for. So successful were they at burying the Werner Report, indeed, that when 30 years later the journalist Hugo Young came to compile This Blessed Plot, his lengthy and detailed history of Britain’s relations with ‘Europe’, he did not even mention it.

 But this curious glimpse of what was going on behind the scenes back in 1970 provides an apt starting point to explore one of the oddest things which has ever happened to British public life: the way in which our involvement with the “European project” has introduced an element of deliberate deceit into our politics which, in its depth and scale, has no historical parallel. To anyone who follows such matters in detail, nothing is more striking than the way, again and again, we see supporters of Britain’s participation in this project apparently having to resort to obfuscation and subterfuge, both to disguise what the project is really about and to hide what they themselves are up to. And the fundamental reason for this culture of concealment is that there have always been two quite different perceptions as to the nature of this European project.

For 40 years British politicians have consistently tried to portray it to their fellow-citizens as little more than an economic arrangement: a kind of free-trading area primarily concerned with creating jobs and prosperity, which incidentally can help preserve the peace. On the continent, however, right back to the dreamtime of Jean Monnet and Robert Schuman in the late 1940s and early 1950s, the ‘European construction’, as its supporters call it, was always seen as something very much more ambitious. However long it took, and however much it might be desirable not to come too much into the open about it, the real long-term aim of the project was always that the countries of western Europe should eventually come together in complete political and economic union. The setting up of a common market (which itself was never intended to be a free trade area but a highly regulated internal market protected against external competition by tariff barriers) was regarded as merely a first step along the way. And this is of course precisely what we have seen over the past 50 years, as the whole project has inched forward, step by step, treaty by treaty, directive by directive, always moving in the same direction towards that distant, never very clearly defined but always utterly consistent goal.

The real problem for the British has been that, from the moment our politicians first decided in the 1960s and 1970s that we should join the project, they have never dared to admit openly to the British people that this was its true nature and purpose. And this has had two particularly damaging consequences.

The first is that, right from the start, it created that need for a culture of deceit, whereby our politicians and civil servants have consistently tried to downplay the significance of ‘Europe’, and to present it as something different from what it is. Apart from anything else, this has meant that every time the project has taken another step towards its ultimate goal, as that original “European Economic Community” first evolved in the 1980s into just the “European Community” , then in the 1990s into the “European Union”,Britain’s politicians have at every stage along the way, had to go through that process with which we are now so wearyingly familiar: whereby first they express opposition to much of what their continental partners are proposing; then find themselves having to agree to more than they intended; and finally have to hide from the British people just how much they have given away.

The second, rather less obvious consequence has been the need to conceal the startling extent to which our ever-greater involvement in ‘Europe’ is now changing the way in which Britain is governed. Few features of our political scene have in recent years been more curious than the way our politicians and civil servants try to hide away how deeply our political system is now enmeshed with that of the European Union and how much of the legislation which rules our lives now derives from Brussels. All too often we see them announcing new policies or laws which they pretend are their own, only for it to emerge that they are merely passing on edicts from the EU. Again and again we see them having to conceal just how much of the power to run our country has been given away to a new system of government which has no particular concern for the interests of the people of Britain.

 But ultimately this culture of concealment, which is far more prevalent in Britain than in any other country in Europe, derives from that same basic act of deception: the pretence that the nature of the ‘European project’ is something different from what it is.

Mr Macmillan and 1961

The moment when our political leaders first took this fateful decision to conceal the real purpose of the European project from the British people was not, in fact, 1970 but ten years earlier when, in 1960, Harold Macmillan’s Government began discussing the dramatic reversal of national policy which was to lead to our first abortive application to join the Common Market.

This we can see from an illuminating book published in 1995 by Lionel Bell, The Throw That Failed, based on studying the Cabinet papers which reflected those discussions in the months leading up to our application in the summer of 1961. What was striking about the documents Bell uncovered was just how frank Macmillan and his colleagues had been in private, even at that early stage, over where the Common Market was heading. They were in little doubt it was intended to be just a first step towards eventual political and economic union. Yet this, they decided, should be kept hidden from the British people, because otherwise it would not be acceptable. The Common Market had to be presented as no more than a trading arrangement.

Even before the Treaty of Rome had been signed in 1957, the Foreign Office had been briefed to the effect that its six original signatories wanted:

to achieve tighter European integration through the creation of European institutions with supranational powers, beginning in the economic field … the underlying motive of the Six is, however, essentially political”. (PRO/FO 371/150360. Bell op.cit. p.1)

In the summer of 1960, when British entry was first being actively discussed behind closed doors, Sir Roderick Barclay, head of the UK delegation to the European Commission in Brussels, sent a despatch to the Foreign Office stressing, in Mr Bell’s words:

that the aim of the Community was not merely harmonisation but the unification of policies in every field of the economic union, i.e. economic policy, social policy, commercial policy, tariff policy and fiscal policy. That this was not just pie in the sky needed to be made clear to the politicians”. (based on PRO/FO 371/150363, Bell p.22)

When Edward Heath, Minister of State for Europe, visited Professor Hallstein, the President of the European Commission, in November 1960, his report on the meeting noted how Hallstein had emphasised that joining the Community was not just a matter of adopting a common tariff “which was the essential hallmark of any ‘State’ (and he regarded the EEC as a potential‘State’)”. It would be necessary, Hallstein insisted, for any new entrant to accept the principle that the EEC was intended to evolve into something much deeper, “some form of Federal State”, which was what the Commission was working towards (PRO/FO 371/150369).

 Particularly revealing in this context was the reply given in December 1960 by the Lord Chancellor, Lord Kilmuir, to a request from Mr Heath for comments on what would be the constitutional implications of signing the Treaty for Britain’s sovereignty. Kilmuir responded that in several respects the loss of sovereignty would be considerable: by Parliament; by the Crown in terms of treaty-making powers; and by the courts, which to an extent would become“subordinate” to the European Court of Justice (PRO/FO 371/150369, Bell pp.36-9).

On the making of laws, Kilmuir said it was clear that:

the Council of Ministers would eventually (after the system of qualified majority voting had come into force) make regulations which would be binding on us even against our wishes …it would in theory be possible for Parliament to enact at the outset legislation which would give automatic force of law to any existing or future regulations made by the appropriate organs of the Community. For Parliament to do this would go far beyond the most extensive delegation of powers, even in wartime, that we have ever experienced and I do not think there is any likelihood of this being acceptable to the House of Commons”.

As for the subordination of Britain’s courts to the European Court of Justice, Kilmuir wrote:

I must emphasise that in my view the surrenders of sovereignty involved are serious ones, and I think that, as a matter of practical politics, it will not be easy to persuade Parliament or the British public to accept them. I am sure that it would be a great mistake to underestimate the force of the objections to them. But these objections should be brought out into the open now because, if we attempt to gloss over them at this stage, those who are opposed to the whole idea of joining the Community will certainly seize on them with more damaging effect later on”.

These were pretty direct warnings. And when in the summer of 1961 the Cabinet finally considered whether to apply for entry, Mr Macmillan opened the discussion by pointing out that the first question they needed to consider was that,

…if we were to sign the Treaty of Rome we should have to accept its political objectives, and although we should be able to influence the political outcome we did not know what this would be.”(Bell pp.59-62)

Macmillan conceded that a decision to go in would “raise great presentational difficulties”. On the one hand, it would be important to convince the Six that “we genuinely supported the objectives of the Treaty”.On the other:

we should have to satisfy public opinion in this country that the implementation of the objectives of the Treaty would not require unacceptable social and other adjustments. The problems of public relations would be considerable.”

Nevertheless the Cabinet ruled in favour. Mr Heath was sent off to Brussels to negotiate the terms of British entry. And when on October 10 he made his opening speech to the other member governments, he could not have been more fulsome in expressing Britain’s desire “to become full, wholehearted and active members of the European Community in its widest sense, and to go forward with you in the building of a new Europe”. (Bell p.73).

 But when, two weeks later, his fellow Cabinet Minister Duncan Sandys followed him to Brussels and made a speech emphasising that the British Government recognised how the Treaty of Rome was not just an economic agreement but also had important “political content” (FO 371/158302), Heath became alarmed that he might be letting the cat out of the bag. As Bell discovered:

He set officials urgently to work to check what Ministers had been saying in public and a line was developed of arguing that the Treaty contained no political obligations, only implications. The United Kingdom would not regard itself as committed to any particular development or extensions of obligations simply by virtue of EEC membership”.(based on M.Camps, Britain and the European Community 1955-63, cited in Bell p.74)

This was to remain the line until, in January 1963, President de Gaulle vetoed Macmillan’s attempt to join. Although the Cabinet was well aware that the Common Market was ultimately a political project, involving considerable surrender of sovereignty, and was likely to develop much further in these respects in the future, this was not what the British people were to be told. All this was to be downplayed in favour of a pretence that the Common Market was little more than its name implied: a trading arrangement which would be good for Britain’s economy. It was a line which was still to be the official orthodoxy four decades later. The seeds of the culture of deceit had been sown.

Mr Heath and 1970

By the time Mr Heath came to launch his own, successful application to‘enter Europe’ in 1970, he was already well versed in how to pretend that it was something other than what it was. Over the next five years, up to the time of the referendum in 1975, Parliament and the British people were incessantly assured that entry into the Common Market was simply a matter of trade and jobs. In no way would the British way of life be changed or Britain’s right to run her own affairs curtailed.

An oft-quoted line from Mr Heath’s White Paper circulated to every household in the country in June 1971 promised,

there is no question of Britain losing essential sovereignty”.

In a television broadcast to mark Britain’s entry in January 1973, Heath said: there are some in this country who fear that in going into Europe we shall in some way sacrifice independence and sovereignty. These fears, I need hardly say, are completely unjustified”.

Yet shortly after Parliament had approved British entry, word came from Paris that President Pompidou was proposing that member states should make a solemn commitment to “move irrevocably to economic and monetary union by 1980”. This made a complete mockery of all the assurances given to Parliament that any plans for monetary union had been dropped. In a BBC documentary series The Poisoned Chalice in 1996, a former Foreign Office official Sir Roy Denman recalled the Foreign Secretary, Sir Alec Douglas-Home, looking askance at the news. He said to Heath “the House isn’t going to like this”. “But that”Denman recalled Heath replying, “is what it’s all about”. When Heath himself was asked by the BBC whether he could really have said such a thing, his only response, after an unsmiling pause, was “well, that’s what it was about”.

 Another revealing measure of how deeply the culture of deceit had now set in was the curious story of the common fisheries policy, and the Heath Government’s response to the crude ambush set up by the Six to ensure that, as part of their price of entry, the four applicant countries, Britain, Ireland, Denmark and Norway, would have to hand over to the Community their fishing waters, the richest in the world. (all documents cited on the CFP are from PRO files in FO 30/656-9)

On the very day the applications went in, June 30 1970, the Six hastily approved the principle that member-states should be given “equal access” to each other’s fishing waters, under Brussels control. The point was that, because this had now become part of the acquis communautaire, the body of existing Community law, the applicant countries would have to accept it as afait accompli. Within a few years, as everyone knew, national fishing waters were due to be extended out under international law to 200 miles. Because the waters belonging to the four applicant states would then contain most of the fish in European waters, this would give the Six an astonishing prize.

In fact the Six knew their new fisheries policy was not even legal. Among the Foreign Office papers released in 2001 was an internal Council of Ministers document, dating from June1970, which shows how desperate the Brussels lawyers had been to find some article in the Treaty of Rome which could be used to authorise such a policy. There was none. The policy therefore had no legal justification, and other papers show that the Foreign Office knew this too.

But so determined was Mr Heath not to offend his prospective new partners that he decided not to challenge them. Britain would simply accept the illegal new fisheries policy, even though this would mean handing over one of her greatest renewable natural assets and would spell disaster for a large part of her fishing fleet.

Gradually the British fishermen got some idea that they were about to be sacrificed, and in the closing months of 1970 various MPs for fishing constituencies wrote to ministers asking what on earth was going on. They were fobbed off with evasive replies. Indeed, as the recently released papers show, civil servants eventually worked out a careful form of words, intended to reassure the fishermen that “proper account would be taken of their interests”.

But behind the scenes, as a Scottish Office memo put it on November 9, ministers were being told how important it was not to get drawn into detailed explanations of just what problems might lie ahead for the fishermen because, “in the wider UK context, they must be regarded as expendable”.

The following year the White Paper promised that Britain would not sign an accession treaty until the Common Market’s fisheries policy was changed, Geoffrey Rippon repeated this promise to Parliament and to the Tory Party conference. But in November Mr Heath realised that time was running out. Unless he accepted the fishing policy as it stood, his plans for Britain’s entry in January 1973 would have to be abandoned. He instructed Rippon to give way, and when Rippon was questioned about this in the House of Commons on December 13, he answered with a straight lie. He claimed Britain had retained complete control over the waters round her coastline, knowing that this was simply not true. So barefaced was this deceit over fishing rights that successive governments and fisheries ministers would continue to obfuscate the truth of what had been done for the next three decades.

 In June 1975, the month when inflation hit 27 percent, its highest level in history, came the referendum, Surrounded by all the evidence of a major economic crisis, the British people voted by 2 to 1 to remain in a “Common Market” which the vast majority believed was intended to be no more than a free-trading arrangement. The supporters of the ‘Yes’ campaign, including the leaderships of all three political parties, did little to disillusion them. The message was that a ‘yes’ vote was all about protecting ‘jobs and prosperity’, offering the lifeline Britain’s ailing economy required. As for any fears that there might be moves towards “an Economic and Monetary Union”and “fixed exchange rates for the pound”, the Wilson Government’s own leaflet to every household promised categorically “this threat has been removed”.

Mrs Thatcher and 1985

Ten years later, when Britain’s economy had begun to make that historic recovery which had nothing directly to do with being part of ‘Europe’, it was Mrs. Thatcher, curiously enough, who was put in the position of the British people, in believing that the Common Market’s chief purpose was to promote and liberate trade. It was this which led her to fall for the proposal that there should now be a further big push to turn it into something more like a genuine free-trading area.

Since, as she imagined, this was the Common Market’s real aim, it could surely be achieved without any need for another treaty. But at the Milan summit in May 1985 she was rudely disabused. The powerful new troika at the head of what had become ‘the European Community’, President Mitterand, Chancellor Kohl and Jacques Delors, now President of the Commission, were keen to see another major leap forward to European integration. With the aid of the Italian Prime Minister, they set a clever ambush, insisting that what she was after could be achieved by only a new treaty, and calling for a snap vote. The reason they wanted this was because it could give Brussels a raft of new centralising powers not allowed for in

the original Treaty, significantly extending both the areas of lawmaking to be handed over to Brussels and restrictions on national veto powers.

By the end of the year their treaty had been already signed and they had got all they wanted. Mrs Thatcher had been hoodwinked. And to disguise her frustration, she now felt she had to sell the Single European Act back home as if its main purpose really had been just to set up a ‘Single Market’, as she had told everyone, rather than to move towards a ‘Single Europe’ as its name implied. This confusion, alas, only helped to compound the deceits of her predecessors.

In fact one of the most significant points agreed at that same Milan summit had been the adoption of a document known as the Addenino Report, which in its own way was to do as much for European integration as any of the treaties. Pietro Addenino was an Italian MEP who had been commissioned, after the so-called “Solemn Declaration on European Union” at Stuttgart in 1983, to draw up a whole range of measures specifically designed to create what was called“a European identity”.

These included giving the Community its own emblem and flag, the “ring of stars” and its own anthem, Beethoven’s “Ode To Joy”, all of which were ceremonially unveiled. Other recommendations ranged from adopting a Community driving licence to sponsoring its own sports teams and cultural organisations. These were all deliberately intended to give ‘Europe’ the symbolic appurtenances of a nation state. And they were nodded through at that Milan summit by a roomful of people including Mrs Thatcher, whose officials, one may suspect, had no more given her a proper briefing on the real intentions of the Addenino Report than they had on the Single European Act.

 But it was Mrs Thatcher’s growing alarm at just how far and how fast the integrationist tide was now running which led her in 1988 to give that great Cassandra-like warning speech in whose memory the Bruges Group was founded. M. Delors was now speaking openly of how the President and his Commission would soon be the new “Government of Europe”, the Council of Ministers its “Senate”,the European Parliament its “House of Representatives”, which within ten years would be enacting 80 percent of Europe’s legislation: to all of which in 1989 Mrs Thatcher famously responded, “no, no, no”.

Only a year later she was bundled out of the way, soon after she had in effect been blackmailed by her Chancellor Nigel Lawson and her Foreign Secretary Geoffrey Howe into accepting Britain’s catastrophic entry into the ERM. This of course involved precisely that freezing of exchange rates which the British people had been promised in the 1975 referendum would never happen. We then saw Mrs Thatcher’s successor going off to Maastricht, to face yet another treaty which was now quite unashamedly designed to transform the European Community by another giant step into the European Union.

From Major to Blair, Maastricht to Nice

Yet again in 1991 we saw a British Prime Minister caught out by the gulf between that cosy idea that “Europe” was just a trading arrangement and what it was really intended to become. Indeed, this time it was a “bridge too far,”because John Major realised at Maastricht that if he gave in completely to two of the main integrationist proposals on the table, economic and monetary union and the social chapter, he would risk serious rebellion from his own party back home.

At least on these two issues he was therefore grudgingly allowed his opt-outs, although that on economic and monetary union was not as complete as he liked to pretend, since Britain had an opt-out only from stage 3 of EMU, the single currency. Major had signed up to stages 1 and 2, handing over to Brussels a considerable measure of control over Britain’s economic policy. And a further large price he had to pay was in having to accept the foundations of common policies on foreign affairs, defence and justice, all of which opened the door to giving the EU several more of the crucial attributes of any fully-fledged state, in addition to having that crucially symbolic right to issue its own currency. In terms of the long-term plan to turn Europe into a political union, most of the crucial building blocks were now moving into place.

When Mr Blair went off to agree the next treaty at Amsterdam in 1997, inflated by the hubris of his election victory and his wish to be “at the heart of Europe”, he was a pushover for the next round of integration measures, which included his surrender of control over social policy thatMr Major had not dared give up in 1991. We then in 2001 saw the Nice Treaty cementing a few more important building-blocks into place, from the Charter of Fundamental Rights to institutional arrangements for the Rapid Reaction Force, which is only not a “European army”, because it is a European navy and a European air force as well. Nice may not have achieved so much as many continental politicians once hoped. But of course it was also agreed that there should be yet another treaty in 2004, to take the process another step towards its ultimate conclusion.

 What we now see, in short, is a European Union which has its own government, its own executive, parliament and supreme court; its own citizenship, passport, flag and anthem. It already has complete control over its own food resources, through the agricultural and fisheries policies. It is well on the way to having its own currency and economic policy and its own foreign and defence policies, backed by its own armed forces and the embryo of its own police force in Europol. It has taken the first steps towards creating its own common legal and judicial system. In other words, it has taken on almost all the essential attributes of a fully-sovereign state. Almost the only thing missing as the keystone to the whole structure is a fully-fledged constitution, and again that is planned for the next treaty conference in 2004.

But what else is missing? Quite simply, any admission from our own politicians in Britain that this is the reality of what we are now part of, and towards which they have stealthily, reluctantly, deceitfully been leading us for the best part of 40 years. It is the most remarkable political sleight of hand which has ever been practised on the British people: to lead them step by step into exchanging their own country and political system for another, totally different; and to pretend at every stage that none of it is really happening. And it is that fundamental dishonesty which in the end accounts for that ubiquitous culture of deceit which now permeates every corner of our dealings with the European project, like an all-pervading fog: so that not a day now goes by without almost everyone involved in the government of our country, from the most senior cabinet minister down to the most junior civil servant, making statements which are at best misleading and often demonstrably untrue.

The Price We Have Paid

In summarising the range of deceptions which have characterised Britain’s relations with ‘Europe’, we may categorise these under three main headings.

1. The first has been the way British politicians have consistently misrepresented the nature and purpose of the ‘European project’.Never more obviously than in recent years, there has been a startling contrast between what continental politicians are prepared to say about its real aim -the need to drive on to full political union – and the far more limited and woolly version sold by British politicians to their own people.

Even in the run-up to Nice in 2000, while continental leaders like Gerhard Schroeder, Joschka Fischer, Jacques Chirac and Lionel Jospin were making speech after speech calling for political integration, all we heard from Prime Minister Blair was a weak, waffly speech in Warsaw, trying to evade the issue by suggesting that Europe’s future lay in more “intergovernmental co-operation”. The Conservative’s spokesman Francis Maude was even more implausibly evasive when, in a speech in Berlin, he persisted like other Tories before him in vague day dreams about building a ‘flexible’ Europe of independent nation states, a scenario simply not on offer.

In this respect successive generations of Europhile British politicians have put themselves in the position of being the true ‘little Englanders’, as they have continued to talk about ‘Europe’ in terms so far removed from those in which it is discussed by the politicians of any other country that they might come from another planet. But since privately they have been well aware that their continental partners had a wholly different view of ‘the project’,this in itself has amounted to a massive act of deception.

 2. A second major area of deception has been the concealing from the British people of just how far control over their country’s affairs has been handed over to this new system of government centred in Brussels. One former Tory minister privately admitted she had found nothing more disturbing about her time in office than the pressure from her officials, wherever possible, to hide the fact that policies she was advocating had originated from the European Union.

In April 2001, when the Sunderland greengrocer Steve Thoburn was charged with the criminal offence of selling a pound of bananas, the judge Bruce Morgan ruled that he had no choice in finding Mr Thoburn guilty because, when we went into the Common Market back in the 1970s, Parliament and the British people had –

quite voluntarily surrendered the once seemingly immortal concept of the sovereignty of parliament”.

When had we ever heard any of our politicians telling us so baldly that we had “voluntarily” handed over our sovereignty, even though this flatly contradicted everything the British people had actually been told in the 1970s about how they were not losing any of their sovereignty?

When in February 2001 Britain’s countryside was hit by the barely credible foot-and-mouth disaster, the great puzzle was why was it being so catastrophically mishandled? Why in particular did it appear that every one of the recommendations of the official report the last time Britain had a major foot and mouth outbreak in the 60s was being so flagrantly ignored? Why was it taking so long to kill infected animals? Why were they not being immediately buried on the spot, as that report had insisted? Why the piles of rotting carcases left in fields? Why the awful funeral pyres? None of this seemed to make any sense until it gradually emerged that the crisis was being run not under British law but in accordance with a series of European Union directives. This may not have excused the way that, as so often before, the Ministry of Agriculture made such a shambles of implementing those directives. But the fact was we had handed over ‘competence’ on handling foot-and-mouth to Brussels. And again, not one of our politicians explained this – not even the Tory front bench spokesman Tim Yeo – because they wanted to preserve the illusion that Britain still retained the power to run its own affairs.

Just before the 2001 general election a curious public meeting was staged in Exeter, chaired by the local bishop. This so-called ‘constitutional convention’ was staged to create the impression that there was popular demand for an elected regional parliament for the ‘south- west region’ of England. It might have seemed curious that identical meetings were being planned in all the other seven regions of England. But of course it wasn’t really curious, because this whole exercise of splitting up the United Kingdom into regions, each with its own little regional government and regional parliament, was all part of a grand plan, promoted by Brussels, to set up a so-called ‘Europe of the Regions’.

Already this plan is much further advanced than most people realise. We have already seen the dividing up of Britain into 12 Euro-regions for the European Parliament; the setting up of the Scottish Parliament and assemblies for Wales, Northern Ireland and London; the creation of eight regional development agencies for the rest of England. The only major building block left to put into place is to set up elected assemblies for each of those eight English regions, which is why in 2001 we were being told that there was a spontaneous grass roots demand for such assemblies in every one of those regions.

 But again none of our politicians has had the honesty to explain openly what is going on. Indeed so determined are the promoters of this grand design to deny that there is any connection between regionalisation and the EU that, as they demonstrated in Exeter, they will even shout down anyone who dares suggest such a thing. Was it not odd therefore that there on the platform in Exeter was a senior official of the European Commission, sent over from Brussels by the EU’s Regional Commissioner Michel Barnier? The truth is that, over on the continent, there is no secret that this is what the regionalisation policy is all about. Here in Britain, ironically, the only politician who has been remotely honest about it has been that great Europhile Michael Heseltine who, at a fringe meeting at a Tory conference in 1998 suddenly launched into an extraordinary outburst against the regionalisation plan. He was all in favour of European co-operation, he said, but this breaking up of Britain into Euro-regions was very much a step too far, and the stealthy way in which it was being brought in he described as “deeply sinister”. (transcript from British Management Data Foundation).

It would be easy to cite countless more examples of how our British politicians and civil servants now quite routinely try to conceal the extent to which our lawmaking and forms of government are now becoming more and more taken over by this new system of government centred on Brussels. The result is that few people, except those directly affected, now have any idea just how much of our power to run our own country we have already given away.

The areas of policymaking handed over to Brussels now stretch right across the field of government, from agriculture and fisheries to much of our foreign policy. Whole tranches of the power to pass laws and decide policy have now been passed over to become what are known as Brussels ‘competences’. And wherever such a competence has become part of what is known as ‘the occupied field’, we no longer have power in that particular area to decide our own policies or laws. That has passed out of our hands forever. What in fact has been taking place has been a transfer of power from Westminster and Whitehall to Brussels on a scale amounting to the greatest constitutional revolution in our history. But much of this has remained buried from view because our politicians like to preserve the illusion that they are still in charge. The result is that remarkably few people now have any proper understanding of how the political system which rules our lives actually works.

3. The third major area of deception lies in the often quite comical compulsion of supporters of Britain’s membership of the European Union to talk up the benefits we derive from membership. And where, as so often, our membership in fact damages British interests, this again must at all costs be suppressed or denied. This type of distortion has become so familiar that I will only mention one or two examples.

One is the grandiose claim that it is somehow the ‘European Union’ which has preserved ‘the peace of Europe’ since World War Two, when the chief cause of this has obviously been the NATO alliance and the presence of America in Western Europe through 40 years of Cold War; the very alliance which influential elements in the EU, motivated by anti-Americanism, are now trying so hard to undermine.

Another is the claim that we have somehow derived special benefits from trading with our continental neighbours which we could not have enjoyed without membership. The figures show that, although before we joined we had a small trading surplus with the original Six members, we have subsequently run up a cumulative trading deficit with our European partners amounting to more than £170 billion. In terms of the balance of trade, our membership has been hugely more beneficial to them than it has to us, and without the surpluses we earned from trading and investing elsewhere in the world, we should long since have gone bankrupt.

Linked to this is the claim we have constantly heard from such people as Robin Cook when Foreign Secretary, that “3.5 million British jobs now depend on trade with our European Union partners”. The intended implication of this is that, if we did not belong to the EU, those jobs might somehow disappear. What is interesting about this particular deceit is that we know precisely where it originated. That figure of 3.5 million jobs came from a report commissioned in 1999 by Britain in Europe from a reputable research organisation, the National Institute for Economic and Social Research.

What the report actually stated was something very different, It did estimate that 3.5 million UK jobs were linked to trade with the EU. But even if Britain were to leave the EU, it pointed out, few of those jobs would disappear, because we would continue trading with the EU much as we do now (and as do other non-EU countries, such as Norway and Switzerland). But no sooner did Britain in Europe receive the report than it put out a press release claiming that “British withdrawal would cost 3.5 million jobs”. The NIESR’s director, Dr Martin Weale, was so angry at this misuse of his report that he described Britain in Europe’s behaviour as “pure Goebbels”. But this did not prevent Robin Cook and Co. continuing to parrot a propaganda point which can still be heard from Europhiles to this day.

Another deceit beloved by pro-EU propagandists is to pretend that one of the advantages of membership is all the money Britain receives from Brussels in grants and subsidies. What they fail to explain, of course, is that all this money was handed over by British taxpayers in the first place, and that we have merely received part of our own money back (in 1999 roughly £1 for every £2 we paid in), What they also fail to explain is that many grants are only paid on condition that “matching funding” of 50 percent or more is provided by the UK government, so that for every £1 returned by Brussels the taxpayer can end up contributing £3. But all this is hidden away, and the grant is publicised as if it was simply another example of Brussels’ largesse and of the benefits of belonging to the EU.

One could cite countless similar instances of the world of mirrors our Europhiles now inhabit, but I will end on just one more, because it is one of the most fundamental of all. This is the deliberate way they invariably try to confuse the European Union with ‘Europe’, to suggest that anyone who is at home with the peoples and civilisation of Europe must automatically support the political project which has taken its name. Conversely, anyone who opposes the project must somehow be “anti-European”, “xenophobic”, a “Europhobe”.Rarely was the self-deception implied in this sleight of hand more cruelly exposed than in the comment by Tony Blair during the Kosovo crisis of 1999 that this was a “tragedy taking place almost on the doorstep of Europe”. What this revealed, of course, was the extent to which, for Mr Blair as for so many other ‘Europhiles’, the idea of ‘Europe’ had become just an abstract concept, identified with the EU, and almost wholly unconnected to the living reality of a continent whose centre is marked by a monument in a Warsaw park, more than 200 miles east of where the EU stops.

Epilogue

In all this sorry fog of deception and falsehood, there is one last vitally important issue which still remains to be decided, and it is the one on which everything else will in the end be seen to rest. If Britain is finally to be absorbed into this new country we are allowed to call anything but a“superstate”, there is one crucial act of surrender we still have to make: that of our currency. Because the one thing without which a nation cannot be considered a nation is its money. So long as Britain fails to join the euro, it can never be fully part of this new nation with which in almost every other respect she is now so comprehensively enmeshed.

Mr Blair knows this only too well, which is why he is so desperate to get us in. He knows that, so long as Britain remains outside the euro, we must remain half-in and half-out of this new state, in a way which, as ‘Europe’moves ever closer to full political and economic union, must eventually become unworkable. It would be a contradiction so glaring that in the end

this could only lead to the unravelling of our political involvement in Europe altogether. In that sense Mr Blair is right. But what does he do? He does exactly what Mr Heath and his colleagues did back in 1970. He publicly tries to make out that joining the euro is purely an economic decision, without any political or constitutional implications, when privately he knows only too well that the whole point of the euro is that, in terms of completing the European project, it is the ultimate political act. Just like Mr Heath, he pretends one thing when he knows another.

But of course in his own attempt at deception, Mr Blair is impaled on one very large hook. He is skewered by that commitment that he cannot take us into the single currency without the consent of the British people. After 30 years of stealthily surrendering our democracy, that is the point on which the bluff of all our politicians has finally been called. However much they may already have given away, the British people have a last unexpected chance to give their verdict. On that issue of whether or not we stay out of the euro, with or without a referendum, far more now hangs for the future of our country than most people have yet realised.

Christopher Booker

Research Paper 10/79 – Letter to Edward Heath from Lord Kilmuir, December 1960

I have no doubt that if we do sign the Treaty, we shall suffer some loss of sovereignty […] Adherence to the Treaty of Rome would, in my opinion, affect our sovereignty in three ways:-

Parliament would be required to surrender some of its functions to the organs of the Community; The Crown would be called on to transfer part of its treaty-making power to those organs; Our courts of law would sacrifice some degree of independence by becoming subordinate in certain respects to the European Court of Justice.

(a) The position of Parliament
It is clear from the memorandum prepared by your Legal Advisers that the Council of Ministers could eventually (after the system of qualified majority voting had come into force) make regulations which would be binding on use even against our wishes, and which would in fact become for us part of the law of the land. There are two ways in which this requirement of the Treaty could in practice be implemented:-

Parliament could legislate ad hoc on each occasion that the Council made regulations requiring action by us. The difficulty would be that, since Parliament can bind neither itself nor its successors, we could only comply with our obligations under the Treaty if Parliament abandoned its right of passing independent judgment on the legislative proposals put before it. A parallel is the constitutional convention whereby Parliament passes British North America Bills without question at the request of the Parliament of Canada; in this respect Parliament here has in substance, if not in form, abdicated its sovereign position, and it would have, pro tanto, to do the same for the Community.

It would in theory be possible for Parliament to enact at the outset legislation which would give automatic force of law to any existing or future regulations made by the appropriate organs of the Community. For Parliament to do this would go far beyond the most extensive delegation of powers, even in wartime, that we have experienced and I do not think there is any likelihood of this being acceptable to the House of Commons.

Whichever course were adopted, Parliament would retain in theory the liberty to repeal the relevant Act or Acts, but I would agree with you that we must act on the assumption that entry into the Community would be irrevocable; we should have therefore to accept a position where Parliament had no more power to repeal its own enactments than it has in practice to abrogate the Statute of Westminster. In short, Parliament would have to transfer to the Council, or other appropriate organ of the Community, its substantive powers of legislating over the whole of a very important field.

(b) Treaty-making Powers
The proposition that every treaty entered into by the United Kingdom does to some extent fetter our freedom of action is plainly true. Some treaties, such as GATT and O.E.E.C., restrict severely our liberty to make agreements with third parties and I should not regard it as detrimental to our sovereignty that, by signing the Treaty of Rome, we undertook not to make tariff or trade agreements without the Council’s approval. But to transfer to the Council or the Commission the power to make such treaties on our behalf, and even against our will, is an entirely different proposition. There seems to me to be a clear distinction between the exercise of sovereignty involved in the conscious acceptance by use of obligations under our treaty-making powers and the total or partial surrender of sovereignty involved in our cession of these powers to some other body. To confer a sovereign state’s treaty-making powers on an international organisation is the first step on the road which leads by way of confederation to the fully federal state. I do not suggest that what is involved would necessarily carry us very far in this direction, but it would be a most significant step and one for which there is no precedent in our case. Moreover, a further surrender of Parliamentary supremacy would necessarily be involved: as you know, although the treaty-making power is vested in the Crown, Parliamentary sanction is required for any treaty which involves a change in the law or the imposition of taxation (to take only two examples), and we cannot ratify such a treaty unless Parliament consents. But if binding treaties are to be entered into on our behalf, Parliament must surrender this function and either resign itself to becoming a rubber stamp or give the Community, in effect, the power to amend our domestic laws.

(c) Independence of the Courts
There is no precedent for our final appellate tribunal being required to refer questions of law (even in a limited field) to another court and – as I assume to be the implication of ‘refer’ to accept that court’s decision. You will remember that when a similar proposal was considered in connection with the Council of Europe we felt strong objection to it. I have no doubt that the whole of the legal profession in this country would share my dislike for such a proposal which must inevitably detract from the independence and authority of our courts.

Of these three objections, the first two are by far the more important. I must emphasise that in my view the surrenders of sovereignty involved are serious ones and I think that, as a matter of practical politics, it will not be easy to persuade Parliament or the public to accept them. I am sure that it would be a great mistake to under-estimate the force of the objections to them. But those objections ought to be brought out into the open now because, if we attempt to gloss over them at this stage, those who are opposed to the whole idea of our joining the Community will certainly seize on them with more damaging effect later on. Having said this, I would emphasise once again that, although these constitutional consideration must be given their full weight when we come to balance the arguments on either side, I do not for one moment wish to convey the impression that they must necessarily tip the scale. In the long run we shall have to decide whether economic factors require us to make some sacrifice of sovereignty: my concern is to ensure that we should see exactly what it is that we are being called on to sacrifice, and how serious our loss would be.

To read the full paper, click here (Lord Kilmuir’s letter can be found on pages 75-76)

Cambridge Freshfields Annual Law Lecture 2014 – The British and Europe – Lord Neuberger, President of the Supreme Court

Introductory

The period around 1960 was a fertile time in the UK for satire and music – That Was The Week That Was and Beyond the Fringe to take two examples. At the Drop of a Hat was a double act which was at the gentler end of the spectrum and which (sadly, some might say, for a teenager in the 1960s) appealed to me then, and fifty years on still does. Michael Flanders, bearded, sceptical and in a wheelchair, wrote the lyrics and did the singing, and Donald Swann, bespectacled and earnest, composed the tunes and played the piano1. Probably their most famous number was the hippopotamus song – Mud, mud, glorious mud

But another of their many clever, funny songs was “A Song of Patriotic Prejudice”. The song started with what Flanders called “a typical English understatement”, namely “The English, the English, the English are best, I wouldn’t give tuppence for all of the rest”  (With my voice, I don’t apologise for not singing it: now, if I had tried to do so, that would have been cause for a fulsome apology.)

As with all the best humour, this song is based on a significant truth. At least at some levels many English people see themselves as different from foreigners, and, by “foreigners” they primarily mean Europeans4. The English do have a somewhat singular attitude to foreigners, and perhaps to mainland Europeans in particular. This is reflected in the current debates about the UK’s involvement in the European Union (“the EU”) and the Council of Europe (“the Council”).

These debates are ultimately political, and therefore a Judge has to tread very warily when discussing them. So it is right to begin by emphasising that I am not seeking to advocate any particular view on the issues of Britain in Europe. I have two aims in giving this talk.

The first aim is to try and put the arguments about our membership of the two institutions in their historical and cultural context. Any political debate carries with it a danger of generating more heat than light, and this is particularly true when the issues are seen by those on both sides as being fundamental to their country’s economic and political future. Understanding the historical and cultural context is essential to a proper understanding of such debates – to explain what the issues are, and how and why they arise. Without that, there is little prospect of appreciating the real nature of the underlying issues. The historical context also serves usefully to remind us that things often look very different after the event, even to those in the thick of the argument.

My second aim also involves providing a context, but it is a more parochial context. That aim is to address the notion that UK law, and in particular the common law, is being subjected to undesirable mainland European civilian law influences, from the jurisdiction of the Court of Justice of the European Union, the CJEU in Luxembourg and of the European Court of Human Rights, the ECtHR in Strasbourg. While judges should not normally take public positions in political debates, different considerations apply if those debates relate to the legal system or the rule of law. Those are areas where the judiciary has unique experience and authority, which sometimes carries with it a positive duty to speak out. By the same token, it is part of our function to explain the legal implications of any important issues being publicly debated.

Before turning to these two areas of discussion, it is right to acknowledge that, in the debate about our membership of European institutions, there is a great risk of eliding or confusing the UK with England. I have already been guilty of it myself less than five minutes into this talk. It is inevitable not least because England represents over 85% of the UK’s population.

The attitude of many English people to Europe is more suspicious or hostile than that of people in Scotland and Wales, though not, I think, of many people in Northern Ireland. And this no doubt mirrors the fact that some of the reasons for such suspicion or hostility are either English or at least apply more to England. If I were to identify and discuss every distinction between England and other parts of the UK on the points made in this talk, it would become tedious – or perhaps I should say even more tedious. So I apologise in advance if, at times, I appear to be subsuming the other parts of the UK into England.

The special position of the UK in terms of history and culture

7. The decision whether we should change the terms of, or even put an end to, our membership of the EU and/or our membership of the Council, raises very difficult issues, which involve assessing what will happen in this country, on Mainland Europe and in the world. As the great quantum physicist, Niels Bohr allegedly said5, prediction is very difficult, especially about the future. And, as Nate Silver has demonstrated in his thought- provoking recent book6, prediction is an uncertain business. In many areas of life, the more confident a prediction the less reliable it is. Silver asserts
and demonstrates that “economists have for a long time been much too confident in their ability to predict the economy”7, and he also shows convincingly that political pundits are more often wrong than they are right

As he further says, experts, like other people, are heavily influenced by their convictions and prejudices. Unsurprisingly, the lessons of history do not speak with a clear voice on the question of the future of the UK in Europe. I suspect that, like the Delphic oracle, the lessons of history are always fated to be ambiguous, or at least are always capable of being interpreted as the particular student, historian, pundit, politician, or even lawyer, wants.

Two centrally important aspects of the context in which the controversy about our future in Europe is taking place are our history and our culture. A consideration of our history and culture doesn’t give us the solution to the controversy, but it informs any search for a solution. And it reminds us that history will judge our decisions – a thought which is rather frightening. Future generations will assess our decisions through what for them will be the relatively clear lens of ascertainable recent history, whereas we have to reach those decisions by looking through the impenetrable fog of the unknowable future. But we owe it to those generations, and indeed to ourselves, to understand the context in which the issues are being debated.

 

There are, I think, a number of reasons why, when compared with people in other European countries, the British are peculiarly averse to, and particularly suspicious of, being told what they can and can’t do by pan- European bodies. Some of those reasons can be encapsulated in the simple point that over the past millennium, the UK, and in particular the three nations of Great Britain – England Scotland and Wales – have enjoyed a more self-contained and stable existence than any other nation in Europe. This may be demonstrated by referring to three fundamental features of our history.

First, since Wales was effectively united with England in the 13th century9, there have been no changes to the boundaries of the countries of Great Britain,  there has been a union with Scotland in 1707, but that was consensual, as would be any secession if there was a positive vote in the forthcoming referendum. It is only across St George’s Channel, in Ireland, that there have been problems, but they have never seriously threatened the integrity of Great Britain. Many European countries, including Germany and Italy, did not exist 150 years ago, and even France’s borders have moved significantly even in the past 200 years. Of the other large European countries, perhaps Spain gets the closest to having had consistent boundaries, albeit only since 149211. Accordingly, unlike any other European country, England and Wales have had a clear and consistent national identity in geographical terms for over seven hundred years, and even the union with Scotland is over three hundred years old – or over four hundred if you take it from the accession of James VI to the English throne. This makes it more difficult for us to accept a loss of borders, even for limited purposes.

Secondly, since 1066, the UK has never been successfully invaded by a foreign power. It is true that there have been serious attempts at a foreign invasion, eg in 1216, in 1588 and in 1940, but they utterly failed; it is also true that the throne was successfully claimed from abroad in the 12th, 14th and 15th centuries, but that was by English or Welsh Kings and Queens with hereditary claims, not by foreigners; and it is true that in the Glorious Revolution of 1688, the Dutch William of Orange became King, but he was married to the King’s daughter and was invited over by many of the English lords in a bloodless coup. 950 years without a single foreign occupation is a record which I think no other European country can claim.

So the need to lose a degree of autonomy for the sake of increasing the prospects of peace in Europe resonates far less strongly in the UK than on mainland Europe.

Thirdly, since the 17th century, this country has never had any sort of revolution. We have evolved, but, unlike almost any other country on mainland Europe, no government of the UK has been brought down by violence, for over three centuries. That is a very different story from all large mainland European countries. Indeed, although British governments feared a revolution, for instance after the events in France in 1789, we never got near. Even 1848, 1918 and 1989, the great years of European revolutions, passed this country by with scarcely a peep. So, again, the need for some supra-European institution to lessen the risk of revolution seems less persuasive to the British than to other Europeans.

These points are all a matter of legitimate pride, but we should be very wary of self-congratulation. All three features can at least in part be explained by geography. Unlike almost every other European countries and unlike any other large European country, the UK is a separate island, or, more accurately, a group of separate islands, divided by the sea from mainland Europe. This has provided the UK with a clear and secure national boundary, protected us from invasion, and assisted government control.

Further, self-congratulation assists those who suggest that we are safe from tyranny or interference with our freedoms. As to that, there is no truer statement than that eternal vigilance is the price of liberty (although in the light of the recent revelations of Mr Edward Snowden, some might say that preventing eternal vigilance is the price of liberty). Our independent and relatively trouble-free history makes most Britons almost blithely unconcerned about internal or external threats to the rule of law, as well as having a very clear national identity. With their more turbulent experiences, one can well understand how mainland European countries are much more aware of the fragility of the rule of law and perhaps less jealous of national sovereignty. And it is easy to see why they are more ready to live under a system which includes Europe-wide institutions and courts which can enforce the rule of law across the continent and ensure a degree of harmony between its different nations and governments, and a judiciary which sometimes can ensure the rule of law, over the heads of legislatures.

he frightful experiences of German National Socialism and Russian communism during the last century have given such concerns a particularly sharp focus. It is no coincidence that both the Council and the EU arose out of initiatives in the late 1940s and early 1950s,  following the rise and fall of totalitarian Nazi Germany and its military domination of Europe and the start of totalitarian Communist Russia’s domination of Eastern Europe. Nor is it a coincidence that these initiatives were given a fresh imperative following the collapse of Russian communism and domination in 1989.

The horrors of the Second World War are notorious, but the horrors which immediately followed in Europe are less well known. They have recently been illuminatingly chronicled and discussed in a very readable and informative study by Keith Lowe, in which he recounts the frightening and far-reaching consequences of the break down of the rule of law throughout mainland Europe in 1945. He compares the war with a “vast supertanker” with engines which were “reversed in 1945”, but whose “turbulent course was not finally brought to a halt until several years later”. As he writes:

“After the desolation of entire regions, after the butchery of over 35 million people, after countless massacres in the name of nationality, race, religion, class or personal prejudice, virtually every person on the continent had suffered some kind of loss or injustice. … Amidst all these, to hate one’s rivals had become entirely natural. … Indeed, the leaders and propagandists of all sides had spent six long years promoting hatred as an essential weapon in the quest for victory. … There were many reasons not to love one’s neighbour after the war.”

Europe nonetheless recovered remarkably fast – physically, economically and politically – from the savage physical, institutional and moral destruction wreaked by World War II and its aftermath. And, not least because all those aspects of the recovery were markedly more successful in democratic western Europe than in totalitarian eastern Europe, it has, I think, been seen by many mainland Europeans as underlining the benefit of institutions such as the EU and the Council.

For all these historical reasons, it appears to me unsurprising that mainland European peoples, governments and media are more ready than their UK counterparts to join and to support institutions which involve trading a degree of national sovereignty or self-determination in return for closer mutual cooperation, inter-governmental coordination, and supra-national dispensation of justice.

But it by no means stops there. The UK enjoys other characteristics which render it less ready to join in such ventures. Two of those characteristics are, like those which I have so far been discussing, fairly general in nature, and two others involve what may be described as more cultural, or really legal, features. However, unsurprisingly, all four features, again like those I have been discussing, are very much wrapped up in our history.

It is easy to forget that, until recently, the United Kingdom was a premier league World power, and, less than a century ago17, was perceived as being what the writers of 1066 And All That18 called the “top nation”. Over 20% of the world’s landmass in terms of both area and population was incorporated in the British Empire as recently as 75 years ago. At that time, and for decades thereafter, the notion that the UK should be one of a number of equal European states would have been greeted with a reaction which fell little short of contempt by the great majority of people in this country.

Even Winston Churchill, whose Zurich speech in 1946 was the starting signal for the Council of Europe, and who, with one eye on history and the other on posterity, was a strong supporter of European integration after the War, saw no need for UK involvement in Europe during the post World War Two period. This was consistent with what he had said in 1930, when he explained that, although he supported Aristide Briand’s proposal to create a European federal union, he believed that the UK could never be part of it, because “we have our own dream and our own task. We are with Europe, but not of it. We are linked, but not comprised. We are interested and associated, but not absorbed”

The loss of the Empire and the loss of world premier league status has inevitably caused problems to the national psyche, although I think it is a tribute to the UK that those problems have been accommodated without significant unrest or threat of revolution. Nonetheless, a transformation from a global pre-eminent status to just one of many EU or Council members requires an almost super-human attitudinal adjustment. It is true that France and Spain also had empires, but France’s was nothing like that of Britain in size, at least since 1763, and Spain’s largely fell apart over the course of the 19th century.

The other general distinguishing feature of the UK is one whose force has diminished markedly over the past century, but I believe that it is still a factor. It is religion. Most of mainland Europe is preponderantly Roman Catholic (although only just over half the German Christian population is Catholic and the Scandinavian countries are preponderantly Protestant), and much of south-eastern Europe is orthodox. England and Wales, on the other hand, have been dominated by Anglicanism for some 375 years. The
influence of religion on European politics is difficult to assess, but the fact that it exists is perhaps most clearly demonstrated by the number of major political parties in European countries which have “Christian” in their name or aim21. This has never been a feature of UK politics. Furthermore, not only is the UK not a Roman Catholic country, but it has, rather peculiarly, a national religion, which may serve to emphasise in the minds of some its difference or exclusiveness.

For much of the past 450 years since the accession of Queen Elizabeth I, the British have been very suspicious, even fearful, of the Roman Catholicism – or Papism. In the 17th century, James II was deposed because of a fear he was trying to bring the country back to Rome, in the 18th century fear of Papism led to the Gordon riots; even in the 19th century, Catholic emancipation was hotly opposed. I suspect that the historical penumbra of a rather unique concern about the Church of Rome has influenced feelings in some quarters about the influence of Europe in the UK. The contrasting absence of such concern in Ireland may be explained by the fact that it is a Roman Catholic country.

Turning now to the two cultural or legal characteristics, I think that it is very significant that the UK has a very different constitutional arrangement from every other European country. Unlike every other European country, we have no written constitution and we have parliamentary sovereignty. Indeed, it may be said with considerable force that we have no constitution as such at all, merely constitutional conventions, and that it is as a consequence of this that we have parliamentary sovereignty. The relatively pragmatic outlook of a system with no written constitution and parliamentary sovereignty involves a very different approach to government from the more principled, but less flexible, system enjoyed by the rest of Europe. But the point goes further than that.

The absence of a written constitution and the existence of Parliamentary sovereignty mean that we have no history of the courts overruling Parliament. Over the past thirty years there has been an academic debate sputtering away about whether, in extreme circumstances, the courts could overrule a statute, but it is very much an academic issue – and I hope that it remains so.

 

However, there are three significant consequences of our having no formal constitution for present purposes. The first is that, subject to that sort of marginal debate, the legislature in the UK has always been able to trump the judiciary: Parliament can reverse a judicial decision with a statute, but the courts cannot overrule a statute through a judicial decision. In a country with a written constitution, the courts can overrule, or set aside, a statute if it infringes the constitution. So, mainland European countries, like almost all other countries across the world, are used to judges overruling legislation enacted by parliaments. The UK is not. This means that the idea of courts overruling decisions of the UK parliament, as is substantially the effect of what the Strasbourg court and the Luxembourg court can do, is little short of offensive to our notions of constitutional propriety. All the more so, given that the courts concerned are not even British courts.

Of course, it must be acknowledged that there is nothing strictly revolutionary in all this: the European courts’ powers in this country all derive from Parliament itself – when effectively accepted our accession to the Council in 1952 and the EU in 1973, and when it passed the European Communities Act in 1972 and the Human Rights Act in 1998. And what Parliament gives, Parliament can take away. But that point takes the present issues no further, not least because it begs the question, namely whether Parliament should reclaim the powers it has ceded to the European courts.

In other words, the notion, familiar to any reader of British newspapers, that it is unacceptable for “unelected judges … [to] impos[e] a diktat”23 on a democratically elected parliament, is peculiarly British. Most countries accept the notion that there are times when it is a good thing for the rule of law that independent judges, who do not need to court short term popularity or worry about re-election, should be able to act as a control on what would otherwise be an unbridled legislature. Again, that may be reflected in their histories – Hitler and Mussolini, for example, both came to power as a result of a democratic election, and democratically elected governments did not protect Czechoslovakia or Romania from Communist take-overs in the 1940s.

The absence of a written UK constitution has a second effect, namely that the Convention has much greater prominence in our judicial decisions, than in decisions of judges in countries which have written constitutions. So when a case involving freedom of expression, privacy, the right to marry, or other infringement of alleged civil rights is heard in this country, any decision is likely to be determined by reference to the Convention, as that is where such rights are, at least very often, primarily to be found in the UK legal system. However, such rights are just the sort of rights which are likely to be included in a written constitution. But in Germany, for instance, when it is alleged that such rights have been infringed, the case will be primarily decided by reference to the German Constitution: the Convention does not loom nearly so large in German Federal Court decisions as in our decisions.

Because a relatively high proportion of court decisions which attract media attention are concerned with human rights, the Convention receives a lot more publicity in this country than in other European countries. And because the media are inevitably much more interested in decisions which are controversial, the Convention and Human rights generally receive inappropriately unfavourable media coverage in this country.

A third consequence of not having a constitution is that one way of fighting off some EU decisions, or decisions of the Strasbourg court, which is available to many other European judges is not open to us. The point may be graphically illustrated by the decision last week of the German Constitutional Court, the Bundesverfassunsgericht, which was considering the legality of an essential aspect of the European Central Bank’s scheme for supporting the Euro, the so-called outright monetary transactions programme.

While the German Constitutional Court has played for time by referring to the CJEU the question whether the programme infringes EU law, it has left open the possibility that it, the German Court, may decide that the programme infringes German law, which would, according to some commentators, throw the future of the Euro into doubt. More centrally for present purposes, the fact that Germany has a Constitution enables a German court to say that German law sometimes trumps EU law. This is an option which is much more rarely, if at all, open to a UK court as we have no constitution to invoke.

A second cultural factor which distinguishes the UK from almost all other countries in Europe is that we have a common law system, whereas they have a civilian law system. This may appear to be a rather esoteric point, but it has two aspects of relevance. First, in a broad sense, rather like the religious difference, it indicates or reflects a rather different cast of mind or approach. Like the absence of a formal constitution, the common law reflects a relatively pragmatic, as opposed to a more logical, approach. A vital feature of the rule of law, namely the legal principles by which legal disputes are decided, are developed by common law judges, who actually  make and develop the principles, rather doing what their civilian equivalents do, namely to take those principles from a detailed code.

Francis Bacon, when not allegedly writing Shakespeare’s plays, and when not accepting bribes or sitting as Lord Chancellor, wrote wonderful essays on science and philosophy. He drew a distinction between the ant and the spider in these terms:

“Those who have handled sciences have been either men of experiment or men of dogmas. The men of experiment are like the ant, they only collect and use; the reasoners resemble spiders, who make cobwebs out of their own substance.

Applying the metaphor to the law, the ant is the common lawyer, collecting and using forms of action, seeing what works and what doesn’t, developing the law on an incremental, case by case, basis. The spider is the civil lawyer, propagating intricate, principle-based codes, which can be logically and rigidly applied to all disputes and circumstances. In Europe, the common law ants are heavily outnumbered by the civilian law spiders.

In particular, the Luxembourg and Strasbourg courts are manned by judges whose knowledge and experience are almost exclusively civilian law rather than the common law. This leads to the risk of an approach to our forensic procedures, indeed sometimes to our whole forensic attitude, which, at least from an English lawyer’s perspective, misunderstands how we work.

Having said that, it is fair to say that there are occasions where, for instance, the ECtHR has been prepared to take into account these differences in a realistic way.

Finally, a feature of history and culture which renders it more difficult for the UK to identify itself unequivocally with any sort of federal Europe is our link with the United States and the Commonwealth. As the US, the origins of the link lie in a combination of geography, history, politics, culture, and language28. It was not merely in the 18th century that there was enthusiasm about uniting the UK and what is now the US in a single country. Within the past century, it was part of Winston Churchill’s vision, as Linda Colley explains in her recent book29. The precise nature and future of the special relationship is a matter of debate and speculation. For today’s purpose the central point is that both those who see the Atlantic partnership as more significant than the European partnership and those who wish to maintain a foot in both camps are obviously going to be antagonistic to an unequivocal commitment to Europe. The links between the US and some other European countries (especially France and Germany, albeit for different reasons), while real and strong are, I think, less significant in terms of culture, and, obviously, language.

The Commonwealth also provides us with an alternative international organisation or club to the EU. To many people countries such as
Australia, Canada, New Zealand, India, and South Africa, as well as smaller places such as Hong Kong and Singapore, represent political and cultural traditions which are much closer to ours than mainland European countries. This is a point which a lawyer is particularly aware of, and is partly explained by the fact that Commonwealth countries are, like us, common law jurisdictions, whereas, as discussed later, virtually every other European country is a civilian law jurisdiction. As a UK judge, I can and do sit, and feel at home, in the Hong Kong Court of Final Appeal; that could not be said about any European court, other than Ireland. But geographical proximity favours Europe and Commonwealth countries are building other ties, mostly to neighbouring countries.

Of course, the factors which I have been discussing are by no means the only ones which play a part in the European debate, but, as explained already, I believe that they are important, if only to set the debate in its proper context.

The present discussion is not of course about whether we should join the European venture. That was the issue debated after the Second World War before we joined the Council in 1952, and until 1972, when we were wondering whether, and then seeking, to join the EU. The present debate centres round the issues of whether we should pull out or whether we should weaken our involvement. Accordingly, it is appropriate to consider not only the UK’s historical and cultural context outside the European tent. We must also consider our more recent experience of being in the tent.

 The effect of membership of the EU and the Council on our law 

Britain’s membership of the Council since 1952, and its membership of the EU since 1973, have had an inevitable effect on our politics, on our economics, and on our law, indeed on our whole outlook on life. When dealing with this aspect, I would like to concentrate on the influence of our European involvement on the law, partly because that is my area of expertise, but it is also because changes in the law both reflect and influence wider changes in society – witness the effect of the anti-discrimination legislation (racial, gender, sexual) of the 1960s.

Thirty-five years ago 30, Lord Denning famously observed, in terms which may have particular resonance with those living in the Somerset levels, that:

“the flowing tide of Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.”

The point was reinforced fourteen years later when Lord Bridge famously said in the House of Lords decision in the Factortame case that “it was the duty of a United Kingdom court … to override any rule of national law found to be in conflict with any directly enforceable rule of Community law”32. And ten years later, lawyers, and indeed the media, became acutely aware of the effects of the Convention since 2000, when it became the duty of our courts to apply its provisions in domestic law following the Human Rights Act 1998.

The experience of more than thirty years applying EU directives and regulations, and of more than twelve years applying the Convention, coupled with considering, following or distinguishing decisions of the Luxembourg and Strasbourg courts, has made a great difference to the approach of UK judges when deciding cases. EU law has introduced new topics like VAT and new concepts such as subsidiarity; and Convention law has introduced the judges to new topics like privacy and new concepts such as the margin of appreciation, and they have therefore self-evidently changed our law.

Thus the common law has developed to take into account the need for the law to accommodate a right to respect for privacy and for family life. Twenty years ago, the Court of Appeal held that the common law did not recognise any right to privacy, so that a TV star lying unconscious in hospital after a near-fatal accident, had no right to complain about a newspaper publishing photographs of him taken by a paparazzo who managed to trespass into his room and photograph him33. Following the passing of the Human Rights Act, there was a very different result when a newspaper published photographs secretly taken by another paparazzo, of a model entering a rehab clinic, or unauthorised photographs of the wedding of a couple of film stars34 taken secretly. And, of course, the common law has not just had to accommodate respect for privacy and family life; it has also had to accommodate a positive right to freedom of expression, freedom of religion, freedom to marry, and much more besides.

 

When I say that UK law has changed as a result of our European involvement, I am not just referring to the inevitable fact that the courts have had to adapt to and apply new principles arising from EU and Convention law. Studying judgments of the CJEU and the ECtHR has led to the courts of this country taking a more principled approach to decision- making than in the past. This is scarcely surprising: as I have already mentioned, the common law has tended to be pragmatic and therefore very ready to incorporate good ideas from other systems.

Thus, Lord Denning’s incoming tide is no more than the latest inflowing of waters which have already left rich deposits on the flood plains of English law. It is perhaps easy for us to forget that the English common law and equity have, as Professor van Caenegem put it, a ‘continental origin.35’ The common law started as feudal law administered in England by the early Norman kings, and it was the same law as that which they administered in Normandy, from where it originated. Indeed as Maitland put it, the law which prevailed in England in the 12th century was:

 “in a sense very French. It [was] a law evoked by French- speaking men, many of whom [were] of the French race, many of whom (had only just) begun to think of themselves as Englishman; in many respects [the common law was] closely similar to that which prevailed in France.

It was the combination of English forms of action with Norman writs which formed the basis of the developing English common law; a system which lasted procedurally until 1852 and lives on substantively today through its effect on the development of our substantive law of contract, tort, and restitution. The jury trial dates back to at least 1087, when William the Conqueror’s half-brother and sometime Chief Justiciar of England, Odo, Bishop of Bayeux (of tapestry fame) presided over the first recorded 12 man jury.

As for equity, the Court of Chancery’s processes developed out of a particular form of canon law procedure, probably also introduced with the Norman Conquest, namely the denunciatio evangelica. One of its special features was discovery, or what we now call disclosure, which, while currently regarded with suspicion in many parts of continental Europe, was originally imported from there to England. Admiralty law was always predominantly civilian in its make up, following and applying as van Caenegem put it, ‘the European ius commune.’

 

But one does not have to go back to the middle ages to see mainland Europe’s influence on the development of the common law. Many of the innovations which served to justify the great Lord Mansfield’s reputation as “the founder of commercial law of this country”40, were based on mainland European civilian law, the lex mercatoria. In one case, Mansfield stated that “Mercantile law is not the law of a particular country but the law of all nations”41. More specifically, many of his landmark decisions such as Miller v Race42 (that promissory notes are negotiable), Carter v Boehm43 (that uberrima fides applies to contracts) and Pillans v Van Mierop44 (abolishing consideration in contracts) all involved Mansfield drawing on mainland European law. (In the first he was wholly successful in permanently changing the law of England45, in the second partly so, at least in relation to insurance contracts46, and in the third he failed.)

So the idea that English law developed as a self-contained system is quite misconceived. Indeed, even Blackstone stated that the affairs of commerce were regulated by a lex mercatoria “which all nations agree in and take notice of and it is particularly held to be part of the law of England which justifies the causes of merchants and the general rules which obtain in all commercial countries.”

We have thus long drawn from continental waters. Indeed, it seems to me that the great success that is the English common law and equity, like the English language, stems to a large extent from its ability to absorb those influences for its own purposes enriching itself as it does so. Our legal story is not one of ‘splendid isolation’49 but rather of splendid synthesis.

Furthermore, the flow of legal ideas and concepts between Britain and mainland Europe has been and is a two-way process. Since the 17th century, England and Wales have had been in the forefront of liberty. We executed our King more than 140 years before the French. The famous 18th century case of Entick v Carrington50, decided before Louis XVI had even come to the throne51, provided the basis for the right to liberty, security and property. And, as Lord Bingham stated more  recently, the common law’s condemnation of torture is a ‘constitutional principle.’ Most famously of all, we have long guaranteed the right to fair trial, or as the Magna Carta put it nearly 800 years ago ‘due process of the law.’ The version which remains on the statute book reads as follows,

 “No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [condemn him], but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”

With our longstanding commitment to the rule of law, it is unsurprising that the United Kingdom played a key role in drafting the Convention, the Council of Europe’s first substantive contribution to post-War redevelopment, although, as Brian Simpson’s study of its genesis56 makes clear, it was not always a straightforward or entirely consistent role.

A more specific point from Magna Carta’s perspective is the role the UK played in drafting Article 6(1) of the Convention. The rationale behind the drafting of the substantive limitations that can be placed on the right to fair trial provided for by the Article were to a large degree a product of our law. The UK government secured the incorporation of a number of limits into the right, which reflected the nature of, as well as the limits placed on, the common law right to fair trial, primarily to the principle of open justice as it had been articulated by the Law Lords a century ago in Scott v Scott.

 Conclusion

Having identified some of the reasons why the British may feel a degree of exceptionalism not found on mainland Europe, and having discussed the relationship between our law and European law, it cannot, I think, be confidently suggested that they justify any particular outcome for the present debate. The various factors identified in the first part of my talk help explain, rather than justify, reservations which many people in this country have about being part of the European venture, and the second part of my talk demonstrates that cross-fertilisation between British and European law is happening, but also that it happened well before the current European venture was under way.

 

Those who favour pulling out of the European venture, or at least reducing the UK’s involvement in Europe, would no doubt rely on the fact that the UK’s historic and cultural DNA includes many genes which encode for separation and exceptionalism. Whatever changes there may have been to our status, they point out that we remain an island, with very different experiences and conventions from mainland Europe. They would also say that we were perfectly well able to draw from European culture without being part of a European polity.

Those committed to Europe would rely on the fact that the UK has never been disengaged from Europe, and that the current European ventures involve no more than a natural evolution, so that no genetic manipulation is needed. They also argue that the seismic shifts in the world political order, and in the mobility of ideas, individuals, information, and assets, require much greater engagement with Europe.

In their Song of Patriotic Prejudice written in the late 1950s, Flanders and Swann contrasted the British and foreign attitudes to sport. As they put it, unlike England, “All the world over, each nation’s the same/ They’ve simply no notion of playing the game/ They argue with umpires, they cheer when they’ve won/ And they practise beforehand which ruins the fun”. Well, anyone who watches Match of the Day or followed the 2012 Olympics will realise how this country is capable of radically changing its culture in a few decades.

Whether this change in English culture is to be welcomed or regretted is a matter of opinion. Whatever their view, I expect that most people would agree that it was inevitable. So, too, whatever the outcome of the present debate on Britain’s future in Europe, I suspect that future historians will conclude that that outcome was inevitable, and will give convincing reasons for it. It’s so easy when you know the answer, or as Niels Bohr would no doubt have agreed, prediction is very easy, especially when it’s about the past.

David Neuberger, February 2014

Europe has stolen the rights we won at Magna Carta. Let’s fight to reclaim them by Norman Tebbit

King John was forced to sign; what about the European Commission?

I wonder if when he announced his policy of fixed-term Parliaments David Cameron had taken in to account that we would be celebrating the 800th anniversary of Magna Carta at the time of the general election next year. Well, most of us that is. Here in Bury St, Edmunds we will celebrate this year the 800th anniversary of the meeting of the barons here in the rose garden beside the Cathedral at which they first completed drafting the great charter, and then swore terrible oaths that they would stick together and force the King to sign at a council at Runnymede the next year.

I doubt it. Nor I think would he have given much thought to the words of Winston Churchill in an interview with the New Statesman’s Kingsley Martin in early 1939.

“The essential aspects of democracy are the freedom of the individual , within the framework of laws passed by Parliament, to order his life as he pleases, and the uniform enforcement of tribunals independent of the executive. The laws are based on Magna Carta, Habeas Corpus, The Petition of Rights and others. Without this foundation there can be no freedom… As long as these rights are defended the foundation of freedom are secure…” 

Norman Tebbit

During the debate last year on the Coalition’s proposal to intervene militarily in the Syrian civil war, Nigel Lawson made the related point that democracy will not flourish unless it has been preceeded by a perion of the rule of law. These are matters which will arise during this year’s elections to the European Parliament and the 2015 general election. The European Commission now has the right to make laws without the need to go to even the European Parliament, let alone that of Westminster. The emforcement of those laws or regulations is often arbitrary. The European Arrest Warrent allows countries with very little track record of the rule of law as Churchill would have known it to seize British citizens in our own country and lock them up awaiting trial without effective rights of Habeas Corpus.

These are matters which Mr Cameron will not welcome being debated during the European Elections this year, nor the general election next year, but if the redoubtable Bob Worcester, who has been appointed Chairman of the committee to oversee the anniversary does his job as thoroughly as I would expect him to do, they are bound to feature. The collective King John of Europe which resides in the headquarters of the European Commission would have to be confronted by a gang of 21st-century knights to be brought to heel and for the process of creating a European democracy to begin. That would be uncomfortable for some of the powerful corporate barons of commerce and industry who would rather carve deals with the Commission than conform to a common law for all.

It is hard to be optimistic about that. Democracy develops from the bottom up, not the top down. Even worse, as Enoch Powell observed decades ago, “Europe cannot be a democracy. for there is no European Demos”. And the enlargements of recent years have reduced the prospect of that Demos coming into being. The triple lock on pensions is an agreeable prospect for pensioners, but should not Mr Cameron now propose a triple lock on the rights we gained at Runnymede in 1215?

A Fundamental Law of the European Union

By Anne Palmer
The Spinelli Group of MEPs is pleased to launch a new draft treaty of the European Union, published by Bertelsmann Stiftung.
‘A Fundamental Law of the European Union’ is offered as a major contribution to the debate on the future of Europe.
The unity of Europe is vital if global challenges are to be met and European values and interests promoted. But how should a more united Europe best be governed?
The present constitutional architecture is hardly fit for purpose. Executive authority is dispersed and political accountability weak. Expedient measures needed to address the financial and economic crisis have stretched the present EU treaties close to their limits.
The Union’s system of governance must be reformed if it is to deliver much needed public goods at home and decisive leadership abroad. In the face of hostile public opinion, the national governments of its member states fear to give the EU the powers and resources it needs. National parties and parliaments fail to embrace the European dimension of politics.
So the European Union needs to assert itself. European challenges can be met only in a European way.
This proposal for A Fundamental Law of the European Union is a comprehensive revision of the Treaty of Lisbon. Replacing the existing treaties, it takes a major step towards a federal union. It turns the European Commission into a democratic constitutional government, keeping to the method built by Jean Monnet in which the Commission initiates laws which are then enacted jointly by the Council, representing the states, and the European Parliament, representing the citizens.
People grumble about the EU’s democratic deficit ‑ when what it really suffers from is a deficit of government. The Union reformed along the lines established in theFundamental Law will be more capable and efficient, more transparent and accountable. The Spinelli Group of MEPs will recommend the Fundamental Law for consideration by the Convention which be called upon, probably in spring 2015, to amend the EU treaties.
A Fundamental Law will also be commended to President Barroso who, in his recent state of the Union speech, promised, before the European Parliamentary elections, to ‘set out the principles and orientations that are necessary for a true political union’.
Headline Proposals
1.
‘Ever closer union’ defined as federal union of states and citizens deriving legitimacy from popular sovereignty
2.
Constitutions of EU states must respect EU values
3.
Commission becomes the EU government, appointed by and answerable to the legislature of Council and Parliament
4.
Limited right of legislative initiative to Council and Parliament
5.
European Council redefined as the lead formation of the Council of Ministers
6.
Rotating Council presidency abolished: each formation elects its own chair
7.
Commission becomes smaller, nominated by its President
8.
Certain number of MEPs elected in pan-EU constituency on transnational lists
9.
Wide extension of ordinary legislative procedure
10.
Widen jurisdiction of Court of Justice
11.
Easier access for citizens to Court of Justice
12.
Ending rigid unanimity for future treaty change and entry into force
13.
Ending opt-outs in justice and home affairs
14.
Creation of an associate membership
15.
EU tax revenue to finance EU spending
16.
Additional budget for the eurozone
17.
Common economic policy focussed on sustainable growth
18.
Fiscal solidarity to complement fiscal discipline
19.
New powers for European Parliament in economic and employment policy
20.
National parliaments get a say in excessive deficit procedure
21.
Wider powers for European Central Bank
22.
Permit sharing of sovereign debt under strict conditionality
23.
Lifting prohibition on approximation of national laws
24.
Modernisation of common policies
25.
Right of assent for Parliament on all international agreements
Europe: an end to fallacy
Andrew Duff & Guy Verhofstadt
The European Union is put to the test as seldom before under the pressure of the financial crisis and its social, economic and political consequences. Much has been done ad hoc to salvage the euro but continuing structural reform at national and European levels is essential if economic recovery is to be assured. Banking union and fiscal union mean a large transfer of sovereignty from the member states to the EU. If borrowing costs are to be lowered, there will have to be a partial and conditional sharing of the burden of debt between richer and poorer states and taxpayers. Such fiscal solidarity will change the Union for good.
The importance of European integration rises, too, in other areas of policy ‑ from immigration, border control, police and justice to energy, science and the environment. In international politics, especially in the Middle East, the unity of Europe is vital if global challenges are to be met and European values and interests promoted.
So how should a more united Europe best be governed?The present constitutional architecture is hardly fit for purpose. Executive authority is dispersed between the European Commission, European Council, Eurogroup and European Central Bank. The duty to ensure democratic accountability is spread between the European and national parliaments. European political parties are weak. The crisis management measures needed to address the financial instability have stretched the legal bases of the present EU treaties near to their limits and exposed a lack of instruments available at the European level. Above all, the arrangements for economic and monetary union, agreed over twenty years ago, have been found wanting.
In the face of hostile and eurosceptic public opinion, Europe’s national governments have tended to will the ends but not the means, ever reluctant to give the Union the powers and resources they must suspect it really needs. Instead, national policies have been coordinated by a bossy European Council in an ever tighter technocratic manner, leading to over-centralisation and a lack of democratic legitimacy.
People grumble about the EU’s democratic deficit ‑ when what it really suffers from is a deficit of government. The time has come to accept that the Union’s system of governance must be reformed radically if it is to deliver much-needed public goods at home and decisive leadership abroad. Fiscal union needs federal government with a wider scope, more flexible instruments and larger powers, endowed with its own resources to match the level of its political ambition. With strong government comes strong parliamentary democracy in which EU citizens are enabled to hold to account those in charge.
Ten years on from the close of the Convention which led eventually to the Treaty of Lisbon it is time to take up the constitutional story again. The Spinelli Group of federalist MEPs propose a new Fundamental Law to replace the existing treaties.
The Fundamental Law signals federal union. It transforms the Commission from an overblown secretariat into a democratic constitutional government, keeping to the method built by Jean Monnet in which the Commission initiates laws which are then enacted jointly by the European Parliament, representing the citizens, and the Council, representing the states. We rejig the European Council to direct the affairs of the legislative Council of Ministers, returning to the Commission responsibility for the overall political direction of the Union. The Court of Justice gains the attributes of a supreme court. And more competence is given to the Union in economic affairs, employment and energy policies. All the reforms proposed are aimed at strengthening the capacity of the EU to act effectively. The new treaty will be more permissive and less prohibitive.
A Convention made up of the Commission, heads of government, MPs and MEPs will be invited to consider this Fundamental Law. That body could start its work in spring 2015 once the new European Parliament and Commission are elected, and should be finished in good time for David Cameron’s referendum in 2017.
The Union so reformed will be more efficient, transparent and accountable. Those states, like the UK, which may decide not to take the federal step forward can opt for the status of associate membership. It is ironic that one of the few European leaders to call openly for a fiscal union (albeit without the UK) is Mr Cameron. Other leaders need to admit the fallacy of continuing to argue that Europe can be more united without the installation of a strong federal government.

THE EUROPEAN UNION (E.U.) … to the …UNITED STATES OF EUROPE (U.S.E.).

INTRODUCTION.

What do the British people want now and for the long term? What are the ambitions of the bureaucracy of the E.U. and the elected leaders to its institutions? Could one man’s ambitions again take over Europe?

If you desire to be a federal part of the United States of Europe, perhaps read no further. If you appreciate what we have in this United Kingdom and in the common strings that bind the Commonwealth you are already worried.

German economic misery and hyperinflation between the wars assisted dictatorship to become entrenched. One man’s ambition was no answer to the issues.

French misery after 1789 welcomed the leadership, construction works and Napoleonic Code of the Corsican. His ambition was no answer either.

The question before the British people is whether the inevitable congruence of states to form this U.S.E is what the British want? If so, the pending renegotiations will be carried out easily. If not, then there will be a much more drawn out set of negotiations. Clearly Brussels seeks complete integration. Who in Britain wishes the same: a common currency, fiscal regime, Central Bank, President, Parliament, police, armed forces, politics, foreign policy and rules and regulations of a United Europe?

Who in Britain wants this existing political law creating Supreme Court in Luxembourg with a constitution and power along the lines of the U.S Supreme Court? We suffer the overarching creative ambitions now of this Foreign Creation so alien to our own legal traditions.

Is there a middle way and if so what is it and is it acceptable to both Britain and the U.S.E? What will be the aims and ambitions of each country? When Britain was misled by Edward Heath into joining a political Europe under the guise of an economic agenda, the issues were blurred. That must not be the case today. It is for all these reasons, and more, that David Cameron has begun the vital process of renegotiation.

The objective here is to identify core issues as it is clear that the referendum must take place before the next election and only after renegotiation. Time is of the essence. The chances of success may be slim but the attempt must be made.

History sets the scene.

The History of these islands and its Celtic races is of stories of fierce independence. They are echoed in Latin treatises of the bloody battles with Rome, in Shakespeare’s histories and in the polemics today in favour of an independent England, Scotland, Wales and Ireland.

Lord Palmerston was the prime international mover and shaker in the 19 Century. He was the Father who oversaw the birth of Belgium (as chairman of the international conference). As Secretary of

State for War in the Government, he supported sending the fleet to assist the birth of the Hellenic speaking peoples in their Revolution of 1821 against the Ottoman Empire. The French and Russian fleets supported this assistance. Garibaldi invaded Sicily and rolled up the peninsular as he fought northwards and handed, what was in effect, a united country to Vittorio Emmanuel of Piedmont. So Italy was born in 1860.

The Austrian Hungarian Empire, a forerunner of the proposed F.E.U, continued its disintegration as the might of the tiny Prussia developed. Prussia used the same current EEC ruse to bring about the collapse of the neighbouring principalities and the enlargement of the Prussian territories. Economic unity was further deliberately used as a backdoor way of taking over unwary neighbouring states. (Napoleon had commenced this work of destruction of customs barriers and Principalities). Tariff barriers were further removed, roads improved and railways built. Gradually Bavaria and Wurttemberg, Hesse Darmstadt, and the South German Union were all absorbed into the net cast
by Prussia to take over the effective leadership of this central European area and, by this economic union, wrest power and control into its own hands. Austria was defeated by economics without a shot being fired. (1)

After common tariffs came common systems of weights and measures, tax, and currency (the Prussian Thaler). Then Bismarck struck. Like Garibaldi and the Hellenic Revolutionaries he roused the German peoples, attacked Denmark (acquiring Schleswig Holstein), the German Federation of independent states merged into the North German Federation under Prussia. The defeat of France followed in 1871 and Europe saw the birth of Germany and its supremacy.

France and Spain alone in mainland Europe had some established longevity. But after two defeats at war, Germany is supreme again and joined with France in an Euro economic nightmare, of their own choice. They deliberately ignored the economic guidelines to Euro membership when dealing with Italy, Spain and Greece.

It is just such wavering on the issue of principles that we see the present EU lurching from short term exigency to another, dealing with Symptoms and not root causes. Indeed, at the Summit of February 2013 the French wanted even more that the unwarranted 30% or so of the budget for Agriculture and, together with Italy, Spain and Greece, wanted a more inflationary and unaffordable budget (so long as someone else paid i.e. Germany and the UK). It was not to be. At last the input of more than one Statesman supported a reduced budget. At least in theory, as the accounts are never audited or signed off and brave whistle blowers are disgraced and treated with contempt. Integrity reallyshould and must matter. There is so much dishonesty, waste and flagrant disregard of the truth that the EU as established must destroy itself economically. What then? Another tyrant to the rescue?No! We renegotiate on the basis of the six Main Principles and the Six Essential Targets set out below.

WHENCE DO WE NOW GO?

David Cameron’s speech (the In/Out speech) was refreshing. It previewed his constructive diplomatic efforts at the February 2013 Summit. Cameron noted three Major Challenges (MC) MC1 – Eurozone single currency MC2 – A projected fall by 2033 of 33% of Europe’s share of world output MC3 – The EU “Is seen as something that is DONE to people rather than ACTING on their behalf”

David Cameron also evinced his FIVE MAIN PRINCIPLES (MP) for the future guidance of the Leaders of the EU.

MP1 – Competitiveness

MP2 – Flexibility

MP3 – Power must flow back to and remain with the Member States

MP4 – Democratic Accountability

MP5 – Fairness

I would add a SIXTH Main Principle: Less Government is better Government. I would add a further Six Basic and Essential Targets (ET)

ET1 – Removal of the European Court of Justice

ET2 – Complete overhaul of basic policies, like the Common Agricultural and Fisheries Policies.

ET3 – Retraction root and branch of the pre-emptive sovereignty of directives and powers of the E.U.

ET4 – Member States shall maintain Sovereignty. If sample areas should be indicated, they are: Foreign Policy, the Armed Forces, the Police, the Main Principles, the Essential Targets, The States’ own Parliament (in the U.K. at the Palace of Westminster, and as Devolved to Scotland, Wales or Ireland), Monetary affairs, Sterling, Fiscal matters etc. The list is purposely not exhaustive nor inclusive or exclusive.

ET5 – Reduction in actual overall Government, less interference, less expenditure and taxes. Less government is better government. (the sixth Main Principle)

ET6 – Institution of financial social and political mechanics in order to resolve issues arising from
Main Challenges, Main Principles and Essential Targets.

Nothing can be achieved without whistle blowers being fully protected and fully compensated. How else can we ensure that acts and omissions of the.E.U.are discovered and remedied with integrity. The Democratic Institutions, the Member States’ aims and aspirations, the whole of The Organisation of the E.U. must manage these goals.

RECENT DEVELOPMENTS

Prior to the 2013 Summit, there emerged reports of the great Alpine tunnel venture, a new road–rail link between France and Italy. The cost amounts now to E8.5Billion. This will inevitably double. In addition there are extra expenses of a further E17.5B. Those could also double, taking the total to E52Billion, or 5% of the EU budget for the next 10 years!

These monies seem to have been allocated without reference to the world wide economy, to other economic pressures, to MC1-3 or MP1-5. Eg.although it is postulated that some 4,500 jobs will be created, only 10% of transalpine freight goes by rail.

There are no Euro funds for research and development (essential for the pursuit of MP1). Is the transalpine tunnel a frivolity when funds are scarce or essential for the competitive edge?

There are no Euro funds for Education (essential for MP1). There are no funds for energy (eg. pipelines.)
There are no funds for the main problems of the next 100 years, namely Health, Pensions and Social
Welfare.

HEALTH, PENSIONS and SOCIAL SECURITY, EDUCATION

In the U.K., Government expenditure has seemingly no control over the costs of Health, Pensions and Social Security. These issues are severe constraints upon financial freedom of government. Unfortunately, these growth areas of spending are not readily controllable. The pot for all expenditure is under pressure of economic constraint. These curbs are now potentially terminal restraints upon the UK‘s ability to meet its own challenges The E.U. has the same issues. All members of the EU must deal with this. The Main Challenges, Principles and Targets are the guidelines.

Education is a fundamental issue of all Governments. So education and pensions are key for budgets to secure the survival of achievements. Difficult when there is economic decline not growth, monetary expansion not restraint, inflation at home and devaluation of currency abroad.

These financial curbs or strains will require higher tax rates and reduced tax take and increase the restrictions upon competitive growth.

THE U.S.E

The EU mix to date is struggling to achieve its aims of federal integration and programme its long term ambitions. Brussels has achieved many of its objectives:

1. Economic annexation of States within the Euro Common Currency by the Euro.

2. A Bureaucracy that has freedom and is not controlled or accountable control. It has no reporting obligations.

3. A Parliament intent upon achieving greater autonomy and further E.U. integration.

4. A Central Jurisprudence based upon European models and the Napoleonic Code. The Supreme Court in Luxembourg (i.e. Brussels) is politically and legislatively creative. It is similar to the United States Supreme Court. Both institutions are alien to the U.K. and its Common Law.

5. Member States wish to move inexorably into a fuller Union of Member States.

6. Member States with Democratic and effective institutions represented by political leaders whose collective Wills are all held in thrall to these E.U issues. Those “Wills” alas, by their own dilution of direction, effect a continual moderating weakness of direction.They tend to strive to arrive at the “Middle Road” conclusion. That always should be avoided as the product tends to be “too little too late”!.

SO WHERE IS THE U.K.?

The government of the U.K. seeks none of these objectives. There is a growing majority groundswell of public opinion that seeks none of these objectives too. Hence the vital decision to renegotiate.

What is to be renegotiated? The answer is clear. The entire edifice of the E.U.needs root and branch review and the relationship of the U.K, in particular, will need careful negotiation bearing in mind the Main Principles, Targets and Challenges.

We must listen, learn and act now. So much better than to suffer now and learn and repent at leisure. David Cameron is right. The European plan must be re-written as a vital urgent project for all of Europe, not just for the United Kingdom.

Roger Wright-Morris.

(1) I refer you to the writings (three excellent books) of Lindsay Jenkins, who encouraged my views. They are however my own.

(2) Douglas Carswell “The End of Politics”.