UK Election Time – The Conservatives and Europe

by Shane Fitzgerald

Despite being a key area of difference between the three main parties, Europe has not become a central issue in the current British election campaign. Yet, for foreign observers at least, this election is fascinating in large part because it could mark a major shift in Britain’s attitude towards the EU. The most radical policies in this area are the proposals of the Conservatives who, despite a dramatic surge in support for the Liberal Democrats, continue to lead in the polls.

The European policies of the Conservatives under David Cameron were announced in November 2009 and have been summarised in a previous IIEA publication. However, as election date approaches it is perhaps worth revisiting those plans and examining in more detail their prospects for implementation.

The first group of proposed measures are contained in a ‘Never Again’ package of unilateral actions which the Tories intend to implement quickly should they form a majority government in May. This includes amending the 1972 European Communities Act “to prohibit, by law, the transfer of power to the EU without a referendum”. So any future treaty which transfers competencies from the UK to the EU would be subject to a referendum. Cameron described this “referendum lock” as a “commitment very similar to that in Ireland”. While perhaps superficially similar, the proposal could have profoundly different implications to those which obtain in Ireland. Ireland’s Supreme Court found in 1987 that the country was constitutionally bound to put to a referendum any treaty which impinged on its sovereignty. Ireland’s European partners may find such a requirement frustrating but they understand that Irish governments must abide by it. A politically-motivated innovation such as that proposed by the Conservatives would be viewed entirely differently. In the scenario that a treaty which had secured broad support across the Union was rejected by a UK referendum, continental analysts would be far quicker to condemn British recalcitrance than they have been in the Irish cases. Such a scenario could lead very rapidly to a crisis in British-European relations, a British exit, or even the disintegration of the Union in its current form.

But this is to assume that the lock could be made to work in the first place. There are significant conceptual and legal issues relating to the proposal which are as yet unresolved. In an excellent recent publication, entitled The Conservative Agenda for Constitutional Reform, Professor Robert Hazell of the Constitution Unit at University College London delves into these issues, arguing for example that “[t]he comparison with Ireland is misplaced” not just because of the political issues described above but because:

Ireland has a written constitution and a constitutional court which has the right under the Constitution to hold government activity to be unconstitutional. Under the UK’s doctrine of parliamentary sovereignty, a government can always invoke the current sovereignty of the current Parliament to repeal the legislation of a previous Parliament.

Hazell argues that it would be very difficult for such a law to become legally entrenched and that the best Cameron could hope for would be that it might become politically entrenched. The courts would be unlikely to enforce a referendum requirement because they are reluctant to issue orders that they cannot enforce, and they cannot supervise the organisation of a referendum.

Another unresolved question is whether or not this lock would apply to all future treaties. If not, who is to decide which treaties “transfer power to the EU” to the extent that the referendum lock should be triggered?

To complement this referendum commitment, Cameron wants to pass a United Kingdom Sovereignty Bill, to “provide ultimate constitutional safeguards against any attempts by EU judges to erode our sovereignty”. In his November announcement he compared this to the situation in Germany whereby the German Constitution upholds ultimate authority. But Germany has a written constitution. For the same reasons that an EU referendum bill could not be entrenched, a later parliament could easily repeal a sovereignty bill. For Hazell:

That raises the question: what are the Conservatives trying to achieve? Is this primarily a political gesture, to appease UKIP and the Eurosceptics within the Conservative party? Or is the Sovereignty Bill intended to have real legal effect? And if the latter, is the objective solely to safeguard parliamentary sovereignty against further encroachments from the EU? or (as hinted at in some of Cameron’s other speeches) from other sources? Parliamentary sovereignty is also threatened by the courts’ interpretation of the ECHR, by devolution, and by further development of the common law. Is the real policy objective to try to protect government policy and legislation from growing judicialintervention?

Assuming a Conservative government can get its Bill through the Commons, Hazell predicts three major sources of opposition: the judges, the House of Lords, and the EU itself.

A minimalist version of the Bill may just inspire puzzlement rather than opposition from Britain’s EU partners but Hazell warns that:

If an attempt were made actually to invoke the ‘sovereignty’ provision, the likely result would be that the Commission would take the UK before the ECJ for infringement proceedings under the Art 226 procedure (now Art 258 TFEU). In effect the UK would be forced to choose between compliance and a negotiated withdrawal from the European Union – a route now provided by the Lisbon Treaty.

A second group of Conservative policy goals relates to “British Guarantees”, which they intend on seeking from the EU. These include a full opt-out from the Charter of Fundamental Rights, an additional protocol in the area of JHA ensuring that only British authorities could initiate criminal investigations in Britain, and a restoration of control over “those parts of social and employment legislation which have proved most damaging to the British economy”, referring in particular to the Working Time Directive. A European Policy Committee is to be established, chaired by William Hague, to work on the detail of these proposals.

The crucial issue here is that such guarantees would require the approval of all EU Member States. It is hard to say what level of political capital the Conservatives would be willing to spend on achieving these goals but what is clear at this stage is that they would have to make substantial concessions in order to gain the necessary unanimous approval. The budget rebate would be item one on any negotiator’s agenda but it would be extremely difficult for a Conservative government to concede much here.

Finally, in the longer term, the Conservatives do not rule out a referendum on a wider package of guarantees if their demands are not met, however, “that would be a judgment for the future, not for this election or for the next Parliament”.

Despite these quite radical proposals, it is interesting to note that the Conservatives have largely succeeded in neutralising Europe as a campaign issue. Their manifesto is dominated by the ‘big idea’ of a “Big Society”, to be enabled by a radical redistribution of power from the state to the people. Only in the last pages do we find tucked away 600 words on “An Open and Democratic Europe”. There was no mention of Europe at the manifesto launch, nor in the ensuing media analysis. And while the issue came up in the second leaders’ debate, it was only addressed in quite general terms, and did not become the locus of antagonism between the three Prime Ministerial candidates that many had predicted.

It is difficult to say if the Conservatives will be able to maintain this ‘softly, softly’ approach to the European question if they form a government in the coming weeks. Cameron would immediately be faced with tricky negotations over financial supervision and hedge funds, an upcoming row over the rebate, and the prospect of a radical revision to EU rules in response to the Greek debt crisis. A Tory government would be under intense pressure from deeply Eurosceptic party grassroots to take a hard line on all these issues.

And then there is the increasingly likely scenario of a hung parliament. There is huge speculation as to the nature of a deal that might be struck if the Conservatives need Liberal Democrat support in order to form a coalition or minority government. The Lib Dems have said that their priorities in such a scenario would be securing policy concessions to do with creating jobs in a ‘greener’ economy, cleaning up politics, cutting taxes for low earners and boosting investment in schools. However, given the gulf between their pro-European stance and the Conservative position, a compromise in this area would be a necessity.

This article was first published by the Institute of International and European Affairs. Access the original here.