Andrew Lilico: What would we need to renegotiate in order to stay in the EU?

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So we're going for a renegotiation-then-rerferendum strategy.  OK.  Some of us may be doubtful now as to whether any adequate renegotiation could be achieved (and what I write below might make why even clearer), but since we are going to attempt to renegotiate, let's proceed in good faith for now and consider what renegotiation might make staying in the EU acceptable.

Of course, many of those that talk of "renegotiating" our position in Europe may not have in mind any form of "renegotiation" that leaves us as anything one would properly call an "EU member" at all.  Perhaps what "renegotiating" will really mean is negotiating some form of Swiss-style access to the Single Market whilst we're able to make our own trade agreements with other countries.  I think that's better described as "negotiating leaving the EU", though there's obviously an element of semantics here.  In what follows I shall think of "renegotiation" as meaning seeking some new arrangement in which we would be proper full members of an EU.

From the mid-1990s until 2010 I argued for a renegotiation of our position within the EU, in the genuine belief that this could be done.  Even in 2011 I was still producing lists of what should come back.  To remind you of my last list:

    •    We must pass a proper “Sovereignty Act” (not this worthless “referendum lock” nonsense) that asserts that, in respect of the UK, conclusions of the European Court of Justice do not have independent legal force. They constitute only an arbitration over whether we are or are not in violation of our Treaty obligations.  Thus, a British bureaucrat or minister is not acting against the law, and hence potentially subject to malfeasance, if she acts in ways that violate Treaty obligations but have not been specifically implemented by Parliament.

    •    Britain must explicitly be exempted from the obligation to seek "ever closer union".

    •    We must withdraw from the common criminal space and defence space (each of which were established in the Amsterdam Treaty, which the Conservative Party opposed).

    •    We must withdraw from the common foreign service provisions of Lisbon (e.g. the EU embassies and EU High Representative).

    •    We must repudiate our involvement in the passerelle clause of Lisbon.

    •    We must state that the UK is not part of the single legal entity, for international negotiations, created by Lisbon.

    •    We must repudiate our commitment, under Lisbon, to be in good standing with the European Convention on Human Rights and to accept as binding the findings of the European Court.

Unfortunately this form of repatriation/renegotiation is now obsolete and we could not stay even if we secured all these points (though all these remain necessary).  The task of renegotiation is harder now, because it involves not merely changing our relationship with our EU partners, but the very destiny of the EU itself.

As I have explained repeatedly over recent months, the fundamental problem in the EU now is that, with the advent of the Single European State (the "EU Federation"), the EU, on its current trajectory, ceases to be an arrangement between medium-sized countries in which we can sometimes get our way if we have enough allies and sometimes we can block measures we dislike with a sufficient minority vote.  Instead, the EU Federation will always have a qualified majority, under current voting rules, and so the arrangement will become one in which the UK must abide by Single Market rules that are set by others (the EU Federation) and over which we ourselves have no control.  There could be some change to the weightings in qualified majority voting, of course, but under current membership, any coherent voting system would need to grant dominance to the Single European State.  Our position as formally "ins" in the EU would then be much the same as Norway's current position as an "out".  We would become Canada to the EU Federation's US - a small northern associate falling under the economic control of a much larger power.  Europhiles sometimes say: "We mustn't become a bit player in Europe", but that's precisely what we will become, on current trajectories, as "ins".

If we are to stay, we must change that destiny.  In his speech David Cameron suggested that Europeans should abandon the aspiration to form a Single European State.  There is no European demos, he told us, and Germans and German institutions must decide the laws of Germany.  I'm afraid that line is a total non-starter, and rather baffling.  There is no way on earth the Germans and French and Italians are going to abandon their aim of forming a Single European State.  They've been building it for sixty years, are aiming to set up the Treaty to formalise it as an EU Federation within two years, and must find the British telling them they shouldn't do it both insulting and bizarre.

But what we might (perhaps generously) term a "variant" of Cameron's proposal might, just, be conceivable.  As things stand, those building the Single European State anticipate inheriting the institutions of the EU.  The European Commission will become the EU confederation's civil service.  The European Court of Justice (in some matters, at least) will become the Supreme Court.  The European Parliament will be the confederate Parliament.

If we are to stay in the EU, we must assert that we have been members of the EU for longer than most of the EU, we are entitled to press our concept of what the EU is for (it's our EU too), it is our money that has paid for the building up of most of the EU's modern institutions, and the institutions of the EU exist for promotion and management of the EU, not the Single European State.  That doesn't mean there shouldn't be a Single European State.  It just means that that is something separate from the EU.

A practical example of this is the way in which the Fiscal Union Treaty, which Cameron refused to sign, went on to have authority to use the institutions of the EU to police and enforce it.  The British government, having talked of challenging that in the courts, backed down, not confident it could win a legal challenge on that point.  If we are to stay, such a thing must never happen again.  The institutions of the EU must be for the EU, not the Single European State.

Now although there are ten EU members not currently members of the euro and hence unable to be part of a Single European State were it formally declared tomorrow, most non-euro members currently expect to join.  It wouldn't be sustainable for the Single European State to include, say, 23 of the 27 EU members and yet be excluded from using the institutions of the EU, and such exclusion would not by itself change the fact that the Single European State, through sheer bulk, would dominate the rule-setting process for the Single Market.  So if such a scheme is to be viable, there must be a separate ambition for the EU that goes far beyond any members that, in any reasonable timescale, might be considered candidates for the Single European State.

The EU can only be viable longterm, separate from the Single European State, if, quite quickly (virtually contemporaneously with the formalisation of the EU Federation), there are dozens of non-euro members.  That means the EU must have the ambition of spreading to one day soon include Turkey, Belarus, Russia, Morocco, Egypt, Iraq - countries that have no chance of involvement in a Single European State but which it might be good to developed deeper trading links with.  For the "European Union" to be viable as an entity explicitly distinct from the Single European State, and hence something that the UK as a non-member of the Single European State can be part of, it must eventually cease to be "European".

The above seems to me to be extremely unlikely to be deliverable.  But if we honestly want to make a go of anything one could properly call "EU membership", something of that sort is required.