As the political furore over Cameron’s use of the veto at last week’s EU Summit rages on, complete with the entertaining spectacle of Clegg throwing his toys and demonstrating his and his party’s impotence in the process, I’ve been trying to get my head round the legalities of what the 26 other European nations have agreed. The British media have, as ever, done an appalling job of reporting the detail of the decisions in Brussels although this piece in the Telegraph raises many of the essential issues.
I should say that I would not only normally consider myself as strongly pro-EU but spent much of my last ten years in the Civil Service working on EU business, negotiating directives and other legal instruments and, it sometimes seemed, spending more time in Brussels than in Whitehall. Issues of legality and propriety were always at the heart of those negotiations, as well as of the most effective way of maximising UK influence.
At the heart of the operation of the EU is that is has almost no direct law-making powers. With the exception of a small number of largely technical regulations, all EU decisions have to be adopted into the domestic legislation of Member States; when EU laws are broken or ignored it is not the perpetrator who is subject to sanction but the Member State who is called to account. One of the implications of the Lisbon Treaty is to make it easier and quicker to take so-called infraction proceedings against Member States who do not comply with EU law.
The proposal on the table at the Summit would have involved new treaty obligations to require Member States to remain within tight fiscal guidelines – including strict limits on deficit financing – and strict requirements to submit national budgets to Commission scrutiny. It was, in effect, a writing of neoliberal doctrine into the EU constitution, and represented a major power grab from national politicians. It closely reflects the appointment of unelected, “technocractic” governments in Greece and Italy to take the decisions that bankers wanted. The proposals have been closely linked with German ambitions, and the reluctance of an economically strong Germany to be constantly bailing out Europe’s fiscal basket cases, but in my view it’s about something much wider than that – it’s about circumventing democracy and identifying the EU with an ideology to a far greater extent than now.
To anyone on the left this is pretty disastrous. It is possible to be pro-EU and of the left – the political agenda of more democracy and reducing the power of nation states is a radical one, and the role and power of the European Parliament has expanded in recent years, partly through the Lisbon Treaty. At the level of practical politics it is difficult to see how many of the Member States who have strongly resisted the incursion of Community competence into domestic financial affairs – Sweden, Denmark, Finland, the Czech Republic, the Netherlands, Poland and, yes, in most circumstances, Germany – as well as the UK could have swallowed it. It is hard to see how the most obnoxious elements could have survived a negotiation, and it is worth recalling that Treaty changes have to be ratified in Member States. It seems to me that the UK would have had a strong negotiating hand in such a situation, although the spectacle of the British government arguing against a neoliberal agenda would have been an ironic and entertaining one.
Of course the immediate need was to convince the markets that Europe was doing something – especially with the next tranche of Greek debt payable in a few days’ time. Would the speculators and bankers have understood the constitutional subtleties? I guess not – the public commitment to austerity packages may have convinced them they had got their way.
Instead, Cameron has used the veto – a tool that quite obvioiusly you should never use in the first stages of a negotiation – and isolated the UK in Europe. The other 26 Member States have rallied around the concept of a “treaty within a treaty”.
But what does this mean? What force does it have other than a general agreement between a group of countries? Where are the sanctions? The leaders’ comminique talked of using existing institutions and legislation, but is vague on the detail. Ultimate responsibility for interpreting European law lies with the European court – so what is the basis for their decisions. Not an informal agreement between a group of Member States, for sure.
Green MEP Jean Lambert tweeted that in her view many national governments were keen to wash their hands of responsibility for this crisis. It seems intuitively realistic to me – and entirely in tune with the ambitions of neoliberalism to subvert political institutions – especially democratic ones (and the real impact of these neoliberal doctrines would be in Member States, not in Brussels).
There is a huge irony that had he not absented himself from the discussions by using his veto, Cameron could have presented himself as a good European, upholding the institutions of the Union and protecting both democracy and Member States’ rights. My guess is that it would have been a far more constructive negotiating tactic which would have garnered the support of the UK’s traditional allies like the Scandinavian countries and the Netherlands. But of course Cameron may not have wanted to look like a good European – the debate over Europe is so toxic and infantile in the UK that, even had he possessed the imagination to understand this, he might have preferred to go down the route of ranting from the sidelines.
But on the next steps forward, Cameron and Osborne seem to me absolutely right – this Treaty within a Treaty is outside the processes of the EU and should not involve EU institutions. Meetings should not be held in EU buildings and Commission staff should not be involved in its preparation. The European Court cannot have any role in its enforcement. Above all, it is essential that such agreements remain explicity separate from the EU. Some would argue that on many issues like the single market and the new approach to regulation, Brussels has sold the pass already to the neoliberals. I believe the possibility of capturing the EU for progress and democracy still exists, and this agreement must be kept away from it.