The Single Most Objectionable Thing About the EU (In a Crowded Field)

In our humble opinion, the brilliant Daniel Hannan is a man that Great Britain and the world needs as British Prime Minister.

By Daniel Hannan

Shall I tell you the worst thing about the EU? It’s not the waste or the corruption or the Michelin-starred lifestyles of its leaders. It’s not the contempt for voters or the readiness to swat referendum results aside. It’s not the way that multi-nationals and NGOs and all manner of corporate interests are privileged over consumers. It’s not the pettifogging rules that plague small employers. It’s not the Common Agricultural Policy or the Common Fisheries Policy. It’s not the anti-Britishness or the anti-Americanism. It’s not even the way in which the euro is inflicting preventable poverty on tens of millions of southern Europeans.

No, it’s something more objectionable than any of these things – and something which, bizarrely, doesn’t exercise us nearly as much as it should. Put simply, it’s this: the EU makes up the rules as it goes along.

Just think, for a moment, about what that means. It means that any deal you’ve signed can be arbitrarily altered later. It means that any plans you’ve made, on the basis of what you took to be binding agreements, can be retrospectively destroyed. It means, in short, that there is no effective rule of law.

Consider one current example: a breach of the law so flagrant, so brazen, that it ought to stir a free people to revolt – and yet which has received only the paltriest attention.

When the European Constitution Lisbon Treaty was negotiated, Britain secured an opt-out from elements of it, notably the EU’s Charter of Fundamental Rights. This opt-out was no token. It was repeatedly described by ministers as a “red line”: an issue on which, in other words, they must get their way if they were to sign up to the treaty at all. The opt-out was brandished as a major victory for the Labour government. Indeed, the PM cited it in Parliament as a reason not to concede the public vote he had earlier promised.

Here, for example, is Tony Blair at the Despatch Box on 25 June, 2007:

It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs. Those were the reasons why people like the right hon. Gentleman were saying that they wanted a referendum.

Pretty unequivocal, no? The EU’s human rights code would not be justiciable in the UK. Euro-judges wouldn’t be able to impose it on us.

It didn’t take long for Brussels to go back on the deal. In a series of rulings, the European Court of Justice drew explicitly on the Charter to force its decisions on Britain. Some of these decisions had vast consequences. For example, the ECJ cited the Charter when it banned cheaper car insurance for women (and cheaper annuities for men) on grounds of gender discrimination.

Many British judges go along with the EU’s judicial activism, partly out of Euro-enthusiasm and partly because they like it when politicians are dictated to by the Bench. But the blatancy of this latest power-grab is too much for some. When a lawyer acting for a failed asylum seeker referred to the Charter in a bid to reverse a deportation order earlier this month, the presiding judge, Mr Justice Mostyn, was understandably flabbergasted:

I was surprised, to say the least, as I was sure the British government had secured  an opt-out at the negotiations of the Lisbon Treaty. To my mind, it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic court. The constitutional significance of this can hardly be overstated.

We’re dealing with a fundamental difference in attitudes to the rule of law. The EU has always been ready to subordinate the dots and commas of the rules to political imperatives.

To cite only the most recent example, the euro-zone bailouts were patently illegal. Article 125 of the EU Treaty is unequivocal: “The Union shall not be liable for, or assume the commitments of, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any Member State.” This clause was no mere technicality. It was on the basis of its promise that the Germans agreed to abandon the Deutschmark in the first place. As Angela Merkel put it: “We have a Treaty under which there is no possibility of paying to bail out states.”

Yet, as soon as it became clear that the euro wouldn’t survive without cash transfusions, the dots and commas of the treaties were set aside. Christine Lagarde, then the French finance minister and now the director of the International Monetary Fund, boasted about what had happened: “We violated all the rules because we wanted to close ranks and really rescue the euro zone. The Treaty of Lisbon was very straightforward. No bailouts.”

How can we deal with a body that is not just open about, but proud of, its readiness to bend the rules? How could a deal negotiated by David Cameron, or any other British leader, be expected to stand as long as we were subject to the arbitrary whim of the ECJ? No new relationship with the EU will be worth the paper it’s written on unless it tackles the jurisdictional question. Whether by renegotiation or by Brexit, we need to get to a Swiss-type arrangement, where common rules apply narrowly to market issues, and where regulations bind the signatories as states rather than having direct effect on individuals. (The doctrine of direct effect was invented by the ECJ in a series of power-grabs in the 1960s, rather neatly illustrating the problem.)

Anglosphere exceptionalism is summed up in the words John Adams used when designing the Massachusetts state constitution: “a government of laws not of men”. Actually, the phrase wasn’t Adams’s: he was quoting a seventeenth-century English radical called James Harrington – a reminder of the deep roots of our shared Anglosphere liberties. But the point holds: the Anglosphere miracle lies in the elevation of the law above the state rather than the other way around. How sad that, debilitated by 40 years of EU membership, we appear to have dropped that principle.