The problem with David Cameron’s long-awaited ‘deal’ with the rest of the EU, aside from the fact that it currently exists only as a set of proposals which will require the agreement of all 27 other member states, is that over the last year he somehow contrived to place on it a weight of expectation that it would always be unable to bear.
The proposals, announced by Council President, Donald Tusk, with a heavy-handed Shakespearean nod to the forthcoming EU referendum – ‘To be, or not to be together, that is the question…’ – are bound to disappoint anyone who fancied that they would signal a radical new direction in the UK’s relationship with the wider EU. But that unrealistic expectation also deflects attention from their most important feature.
The starting point is that the UK already has several opt-outs from fundamental aspects of the European project – from the Eurozone, the Schengen area, and a range of measures in the territory of freedom, security and justice (Protocols 15, 19-21 and 36 of the Treaty on European Union). It also benefits from the continuation of the substantial budget rebate originally negotiated by Margaret Thatcher (the ‘UK correction’ – Council Decision 2007/436/EC).*
The effect of this exceptional status is that, in the key European issues of the last two years – Greece (the Eurozone) and the refugee crisis (Schengen) – the UK has been little more than an interested bystander.
If the choice to be put before the people of the UK under the EU Referendum Act 2015 (most likely later this year) were one between full participation in the European project and leaving the EU, the prospects of a vote to stay in would be seriously diminished.
In practice, however, that choice is one of leaving the EU or continuing to have what looks increasingly like an associate membership of the European club.
In that context, perhaps the most important thing negotiated by David Cameron in the package of proposals that was published today (and available here) is also the one that will get least attention amid the distracting noise about benefit caps and parliamentary over-rides.
This is the acknowledgement that the current Treaty commitment to ‘ever closer union’, at least as far as the UK is concerned, is meaningless –
‘…the references to an ever closer union among the peoples of Europe do not offer a basis for extending the scope of any provision of the Treaties or of EU secondary legislation.
…They do not require that further competences be conferred upon the European Union or that the European Union must exercise its existing competences, or that competences conferred on the Union could not be reduced and thereby returned to the Member States.
…The Treaties allow an evolution towards a deeper degree of integration among the Member States that share such a vision of their common future, without this applying to other Member States.’ (Section C of the Draft Decision of the Heads of State)
In other words, the UK’s status in a two-speed Europe is not a mere matter of temporary expediency, but a legitimate and permanent state of affairs.
Further proposals explicitly providing for the perpetuation of an EU which includes both Euro and non-Euro areas are also contained in the same document (Section A).
Interestingly, it is only in these two related areas that the prospect of Treaty change – albeit tantalisingly positioned between square brackets in the current draft – is held out.
The importance of the ‘deal’ therefore, if it is approved later this month by the other EU member states, is not to press any kind of reset button on the UK’s relationship with its European partners. Instead it is to recognise and enshrine the permanence of the status quo ante – that is to say the UK’s profoundly ambivalent and semi-detached relationship to the EU project.
That embodiment of the status quo may not get much attention. It will be far too much for some, and much too little for others. But it is some way from being nothing. It may, when things come to a vote, more or less reflect where the floating centre of the UK’s electorate happens to find itself.
* It is perhaps best to draw a veil over the opt-out (which was never an opt-out) from the EU Charter of Fundamental Rights – see NS v Secretary of State for the Home Department.
Public Law & Regulation 