State of the Disunion as 60th anniversary celebrations approach

No doubt there were huge sighs of relief in Brussels that fewer Dutch voters than expected supported Geert Wilders’ anti-establishment PVV in the country’s recent General Election and that the VVD (Liberal) party, led by Prime Minister Mark Rutte gained the most seats.

A few days before the European Union’s 27 remaining members meet to celebrate the sixtieth anniversary of  Treaty of Rome, they can breathe more easily – at least for now. However, Mr Wilders was never going to become Prime Minister due to the multiplicity of political parties in the Netherlands, virtually all of which ruled out going into coalition with his party. If the PVV had become the largest party in the Dutch Parliament, it would have nonetheless emboldened anti-EU parties in France and Germany, where elections are also due later this year.

Even so, next weekend’s festivities cannot disguise the harsh fact that the EU is becalmed, with no clear sense of direction. Eurosceptic parties may not yet be on the verge of forming governments in Western Europe, but their support is growing steadily. In response, Jean-Claude Juncker, the President of the European Commission, has recently published a white paper offering five different future scenarios for the bloc’s future.

In a nutshell, these range from pressing on with ever closer union (Scenario 5) at one extreme to a reduction to nothing more than a Single Market (Scenario 2) at the other. The other three options are a two-speed Europe (Scenario 3), with some countries integrating faster than others, “Doing less more efficiently” (Scenario 4) and “Carrying on” (Scenario 1).

The ever-closer union option is unlikely to gain much favour in Eastern Europe, especially Poland and Hungary. The current Polish government is a supporter of repatriating power from Brussels and the recent reappointment of Donald Tusk, a member of Poland’s biggest opposition party, as President of the European Council against the wishes of Poland’s government, is not going to improve relations between Warsaw and Brussels. Poland’s foreign minister, Witold Waszczykowski said that his country will “play a very rough game” in the European Union.

Hungary has no appetite for interference in its internal affairs by Brussels. The European Commission has criticised the construction of a razor wire fence on the border with Serbia, but Hungary has ignored the criticism and pressed on regardless.

Then there are Greece’s problems. Our friends in EPAM, a Greek Eurosceptic organisation, are organising protests against austerity outside several Greek embassies, including one in London, on Saturday 25th March. The organisation claims that austerity has bitten so deep into Greece’s fabric that lives are being lost as the country’s health service has reached the point of collapse. One article recently brought to our attention claims that “The country is rotting inside the EU and the eurozone. The Greek people have crashed economically. Greek cities, because of massive illegal immigration, look less like cities in Europe and more like cities in Afghanistan. Banks have begun the mass-confiscation of residences. The people are on the verge of revolt.

Of course, it is the Euro, one of the EU’s flagship policies, which has put Greece into its current straitjacket. Until recently, however, support for both the Euro and EU membership was remarkably strong. Almost two years ago, at the height of the last financial crisis, over 69% supported remaining within the Eurozone, with 56% wanting to keep the single currency even if it meant harsh austerity measures being imposed.

Such statistics act as a reality check to those of us in the UK whose dislike of the EU is so intense that we find it hard to figure out why other countries are not preparing to follow us out of the exit door.  We have never been keen on pooled sovereignty and for us, the EU’s “Ring of death” flag is a badge of shame. Across the Channel, things are viewed differently. Member states which suffered years of Soviet rule or military dictatorships view EU membership as a symbol break with a past they are all too keen to forget. While not all the EU’s leading lights are such gushing  federalists as the Belgian MEP and former Prime Minister Guy Verhofstadt,  there are still plenty of enthusiasts for the project. For instance the Spanish MEP  Esteban González Pons who called Brexit “selfish”, claimed that the EU was the “only alternative” in an increasingly globalised world and expressed the hope that one day, we would one day “come home”  – re-join the EU in other words.

Such sentiment seems almost laughable given that others in the EU clearly view  Brexit as a great opportunity to press on with closer union now the pesky foot-dragging Brits are going their own way.  We will no doubt hear much about how wonderful the EU is during next weekend’s celebrations, but once the festivities are over, the leaders of EU-27 will have to look long and hard at Mr Juncker’s five options for the EU’s future and coming to a consensus isn’t gong to be easy. Geert Wilders may not have achieved the breakthrough for which he hoped, which in turn has made Marine le Pen’s already difficult path to the Elysée Palace even harder, but the EU has only won a short-term reprieve.  A big fireworks display in Rome cannot disguise the fact that it faces a serious identity crisis which it shows little sign of being able to resolve.

Photo by Christopher Lotito

Keep the champagne on ice for a few more days!

 *** Post Script: Since this article was first posted on the website, it has been announced by a Downing Street spokesman that Mrs May will trigger Article 50 on Wednesday Week – March 29th. ***

Following Brexit developments since the memorable vote on 23rd June last year has been rather like watching paint dry. However, it does finally look like the long wait is over. The European Union (Notification of withdrawal) Bill has finally completed its passage through Parliament in its original form. The amendments proposed by the House of Lords were defeated in the Commons and now only Royal Assent is required.

Government sources have said that Mrs May will invoke Article 50 in the final week of March. A decision to do so straight away would be seen as playing into the hands of Dutch eurosceptic parties. A General Election is being held in the Netherlands tomorrow (March 15th) and Geert Wilders’ Partij voor de Vrijheid has been topping many recent opinion polls. At a time when accusations are flying here, there and everywhere about foreign interference in domestic elections, Mrs May will not want to give the EU any reason to accuse her of such behaviour, given the negotiations will be delicate enough as things stand.

Mrs May needs to steer clear of 25th March for similar reasons. This date marks 60 years since the signing of the Treaty of Rome, which formally established what has become the European Union. Celebrations are planned in Rome to mark the event and although the beginning of the Brexit will inevitably have to be fairly close to the festivities, triggering Article 50 immediately before March 25th would not win us many friends.  To  celebrate the beginning of Brexit at a time when EU-27 will be attempting to celebrate the European Union’s achievements against a backdrop of rising euroscpticism across the Continent would not be very good manners. Let’s face it, many of us who worked so hard to ensure our countrymen voted to leave the EU will surely want to crack open a bottle of champagne when the  formal departure process begins. Let’s keep it on ice for that bit longer. It won’t do us any harm.

Domestic politics also have limited Mrs May’s options. The SNP holds its Spring Conference in Aberdeen this coming weekend with Nicola Sturgeon threatening a second independence referendum following the Brexit vote. Mrs May has declared herself a strong supporter of “our precious union” and therefore wisely does not want to fan the flames of Scottish nationalism given that the result of a second referendum could be hard to call.

It is a relief, however, that the final obstacles in the way of triggering Article 50 have been surmounted. Then begins the hard graft. Unless both parties agree to an extension, we have to get a deal in two years which will enable our economy to function on day 1 of Brexit. There has been much posturing on the EU side, with talk of a big divorce settlement for the UK. It may turn out to be nothing more than a demand to honour our commitments to the end of the current seven-year EU budget cycle.

However, obstructive behaviour will benefit neither side.  If no agreement has been reached two years after Article 50 is triggered,  the Treaties no longer apply in our country and the UK and the EU would face a nightmare scenario in trying to relate to each other without any legal basis for so doing.

It is hard to imagine anyone wishing for such a calamity, but it is very apparent that our negotiators are going to have their work cut out to come up with a comprehensive settlement. Therefore, while we may be popping the champagne corks at some point before the end of March, it will be no more than a brief moment of light relief before the beginning of what is going to be a long, hard slog.

2017 – make or break for the EU?

The strong UK economic performance in the second half of 2016 defied the gloomy predictions of many economists. Nevertheless, these same people are determined to tell us that Brexit will result in economic problems in 2017 instead. According to a number of economists surveyed by the Financial Times, growth will slow markedly during the year. Well, we shall see. The fall in sterling will almost certainly cause a rise in inflation, but worst case estimates put the annual Comsumer Price Inflation figure at something between 2-4%, which in recent historical terms is not that high, albeit not terribly good news for consumers.

In spite of Brexit, however, it is events in a number of the other 27 countries of the EU which are likely to cause far more concern during the course of 2017. While the Eurozone economy is recovering, it is still not strong enough to manage without the Quantitative Easing programme which the European Central bank began in early 2015. Italy in particular is looking very wobbly. It is estimated that 18% of all loans made by its banks are “non-performing” – in other words, are highly unlikely ever to be repaid.  These amount to a staggering €360 billion in total.

Furthermore, outweighing the economic concerns is the political scene. This year will see general elections in France, Germany, the Netherlands and the Czech Republic and possibly Italy. The likelihood of parties from outside the “mainstream” making significant gains or even ending up in power has been widely reported (See for instance here and here.)   Indeed, Mark Blyth, an academic based at Brown University in the USA, has predicted has predicted that the EU will cease to exist by the end of this year.

As James Forsyth wrote in the Spectator article mentioned above, however, “The British, it is said, always underestimate the sheer political determination to keep the European project moving forward.” Perhaps he has a point. Many of us who campaigned for Brexit regard the whole EU project as at best misguided and at worst, simply daft. Both during referendum debates and in articles for this website, I have publicly declared “I wouldn’t wish EU membership on my worst enemy”, but is this a sentiment confined to a minority of people in one country which has never been that keen on the EU project anyway?

Certainly Angela Merkel in Germany still exhibits the determination of which Mr Forsyth speaks. She reiterated her belief in the European project only a couple of weeks ago. “We Germans should never be deceived into thinking that a happy future could ever lie in going it alone nationally”, she said in her New Year message.

Meanwhile the Slovak Prime Minister, Robert Fico (whose surname, out of interest, should be pronounced “Feet-so“) has urged member states to stop their “adventures” – in other words, holding referendums on domestic issues  – because they “pose a threat to the EU.”

What will we do if … there is a referendum in Italy on the euro and Italian citizens decide they don’t want the euro?” he asked. What indeed?

On the surface, it appears that Mr Fico is singing from the same songsheet as Frau Merkel, but scratch a bit deeper and it very apparent that the former Soviet bloc countries, while seemingly committed to the EU, have a rather different idea of the way forward. In Poland, for instance, Jaroslaw Kaczynski, the leader of the governing  Law & Justice Party, has called for a new EU treaty in the wake of Brexit which would stop, if not reverse, the flow of power from national parliaments to Brussels. “We need reforms which clearly define that the EU is an association of national states and that national states are the foundation,” he said.

These words are hardly in the spirit of the “Ever closer union” from which David Cameron sought to exempt the UK last year – and it needs to be remembered that this phrase goes right back to 1957. It features in the preamble to the Treaty of Rome which was the treaty which launched what has become the European Union. It is a foundational concept to the whole European project.

Kaczynski is often labelled “Eurosceptic” as is his Hungarian counterpart Viktor Orban. Whether or not this is an accurate label, there is no doubt that their vision of the EU is vastly different from that of the Western European leaders 20 or so years ago. Indeed, according to Martin Schulz, the outgoing president to the European Parliament, the attitude of these men has hamstrung the entire EU project:- “The generation of [Helmut] Kohl and [François] Mitterrand travelled to Brussels with the attitude that a strong Europe is in the interest of our country… The [Viktor] Orbán generation says ‘we have to defend the interests of our country against Europe’ – as if they were being attacked by Brussels.”

Schulz went on to defend both the €uro and the eastward enlargement of 2004, even though both have created enormous problems for the EU. The former has brought Greece to its knees and has given Italy a “lost decade” economically, the latter has brought in a group of nations whose outlook on life is very different from the mindset of Herr Schulz or his Chancellor and are none too keen to change.

It could be that Mr Forsyth is right and that, in spite of both the misery the Single Currency has caused to several Mediterranean nations and the opposition to multiculturalism, social liberalism and various other -isms in Eastern Europe, the EU will muddle through. On the other hand, throw into the mix the forthcoming General Elections and the fact that 2016 did not turn out as the “experts” predicted and  it would be a brave man who would bet his money on it.

The Common Fisheries Policy – Part 1

We welcome John Ashworth of Restore Britain’s Fish, who will be writing a series of articles about the EU’s iniquitous Common Fisheries Policy. Here is the first piece:- 

The events start with the Treaty of Rome, an international agreement that led to the founding of the European Economic Community (EEC) on 1 January 1958. It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany – The six Member Nations.

Talks began at the end of June 1970 between the above six, and Britain Ireland Denmark and Norway, but before these four Nations had lodged their official application to join the EEC the six had created the Fisheries regulation.

When a Regulation is created, at the top it states the articles within the Treaty the regulation takes its authority from, and as soon as a Regulation comes into force, it in turn becomes what is known as the acquis communautaire.

In understanding the workings of the then EEC, now European Union, the above paragraph is probably one of the most important aspects to have to learn.

Firstly – what is this acquis communautaire. -. It is all EEC/EU treaties, EU legislation -(regulation), international agreements, standards, court verdicts, fundamental rights provisions and horizontal principles in the treaties such as equality and non-discrimination. In short, all EU-law.

When Britain joined in January 1973, the acquis communautaire amounted to around 5,000 pages; today it is estimated to be 170,000 pages and growing. When a nation joins, what is now the EU, it has to accept, and comply, with the acquis communautaire in full, without exception, other than with transitional derogations. In addition the existing members have to all agree, to the applying Nation joining under those terms, which in effect the existing members, by Treaty, are endorsing their allegiance/compliance to the acquis communautaire.

This then begs the question, when a politician states they will “reform” or “renegotiate”, one has to ask – what?, because if it is anything within the acquis communautaire, then you have to have a unanimous agreement among all members to change it, and if you take for example Croatia, who joined in July 2013, our Prime Minister agreed by Treaty to the terms, when nearly at the same, he saying he wants to change. Rather facing two ways at once.

Coming back to Britain’s Accession, the original six members, hours before the signed application for membership from the four was handed in, created Fisheries regulation 2140/70, which contained:

Article 2

1 Rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States.

Member States shall ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters referred to in the preceding subparagraph for all fishing vessels flying the flag of a Member State and registered in Community territory.

In laymen’s language, that is, on becoming a member of the then EEC, now EU, the fishery limits bestowed on a Nation by International Law, are handed to the EU, to become Community waters, shared equally and without discrimination, with every other Member Nation.

As Britain had the largest living marine resource within the EU. We had, by our Accession Treaty obligation share it with every other member – end result – our vessels had to go.

The British people were not told these facts, in fact the very opposite.

The purpose of Part 1, before extending onto transitional derogations, opt-outs and Parliament in Part 2, is to understand the Treaties themselves, the regulation based on the authority of Treaties, extending into an out of control acquis communautaire, as “the project” has grown from 6 members to 28. The numbers alone, by requiring unanimity, has created a rigid, unchangeable system.

When Britain joined in 1973 we had eight other members to get on side, with 17% of the Council of Ministers vote, today we have to get 27 other members on side with 8% of the vote. The founding Fathers of the EEC/EU knew others would join who would try to water down their objectives, but they designed the system, as you increased membership, a policy always supported by the Conservative Party, you strengthened the position to stay on track to create a fully integrated Europe, all in the EU, even if it is a two tier, a hard inner core, and softer outer core, both will have to accept and obey the acquis communautaire. The outer core will simply have more derogations and opt-outs.

 

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)