I don’t feel the same way about the EU referendum as I did about the Scottish independence referendum. I shall vote to remain in the EU. But, whereas I would have been heart-broken had Scotland decided to break up the United Kingdom on 18 September 2014, the prospect of leaving the European Union does not fill me with dread. I do think, however, that it is in our national interests to remain. Let me explain why.
Part I – A Conservative case for Remain
I have no love for the European Union. For me – unlike the indyref – this decision is one purely for the head. It’s a cost/benefit analysis, not a matter of visceral belonging or identity. There are things, many things, about the European Union that I dislike; and some that I detest. Its lack of democratic accountability. That it takes on far too much. That it has ventured altogether too far away from its core mission – of economic integration, trespassing into political matters that should have been left to Member States. The Court of Justice of the European Union, hundreds of whose cases I have read, written about, and taught during the course of my academic career, is capable of making the most outrageous decisions.
So the European Union has its problems. But their solution lies not in leaving the EU, but in reforming it. And that process of reform starts with the United Kingdom re-setting its own relationship with the European Union.
I confess, I would have found it more difficult to know what to do in the EU referendum had David Cameron failed in his negotiations in Brussels last month. When I read the Prime Minister’s list of demands, I thought “if they don’t give us this, it’s going to be extremely difficult to see how the EU will ever concede that it needs to change”. That would have made the case for remain harder to sustain. But don’t believe what the Prime Minister’s critics tell you. Contrary to their attempts to belittle him, the Prime Minister achieved a very great deal in Brussels last month. He went in with four sets of demands; and he walked out with four sets of demands met.
He has secured for us that neither the United Kingdom nor the City of London will be disadvantaged by the UK not using the euro as our currency. Whatever banking union the eurozone countries agree to, it will bind only them and not us.
He has ensured that competitiveness and deregulation will lie at the very heart of the single market. These are core Conservative values – access to the single market is the reason why a Conservative government took us into what was then the EEC in the 1970s, and it is the prime reason why we should remain now. We all know the facts. Half of all British trade is with our EU partners. We trade as much with the EU as we do with the whole of the rest of the world. The single market means jobs for British workers, investment for the British economy and lower prices for British consumers. As a result of David Cameron’s renegotiation last month we will see a better regulated single market, fewer administrative burdens, lower compliance costs, and unnecessary European legislation repealed.
Thirdly, the Prime Minister has ensured that the United Kingdom can more robustly and more effectively protect itself and, in particular, can protect its generous welfare system, from exploitation by mass European immigration. For the first time we will be able to take direct action to limit the flow of EU immigration, where we consider it necessary to do so to protect our social security. Of course this does not mean a complete repatriation of immigration policy. Whether we were in or out of the European Union, a complete repatriation of our immigration policy would be impossible if we wished to retain access to the single market – just ask Norway or Switzerland. Moreover, in the inter-connected world of the early twenty-first century, even leaving the EU and withdrawing from the single market could not insulate us from the reality of modern migration patterns. Imagining that withdrawal from the EU would be like flicking a switch that automatically returns to us complete control of our borders is a fantasy.
Immigration is a fact of modern life and, moreover, it’s a fact of modern life we should welcome. We need an immigrant workforce. We need it at the bottom end of the labour market, and we need it at the top end, too. And what we need in order to manage this are effective and carefully targeted immigration controls, and David Cameron’s renegotiation in Brussels last month shows that this is perfectly possible to achieve within the EU. The European Council accepted that the free movement of workers in the EU single market – no matter how fundamental a value that is in European law – cannot be permitted to undermine a Member State’s social security system. The European Council said this: “Member States [and not the EU] have the right to define the fundamental principles of their social security systems … including setting the conditions for access to welfare benefits”.
Fourthly, and to anyone who knows European law, most remarkably, the Prime Minister has secured for the United Kingdom unanimous recognition that “ever closer union” no longer applies to the UK. In his famous Bloomberg Speech in 2013 David Cameron described this idea as a “heretical proposition”. But 2013’s heresy has become 2016’s orthodoxy. Those words “ever closer union” have featured in the European treaties ever since the European Economic Community came into being in 1957. For nearly 60 years they have been Europe’s very raison d’etre: legal recognition, front and centre of EU law, that the European Union is an engine of ever greater integration among the peoples of Europe. But no more – at least, not as far as the United Kingdom is concerned. In the words of the European Council itself, “the United Kingdom, in light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union”. Hurrah for that. This far and no further. If other Member States wish to pursue closer political union, or fiscal union, or military union or whatever, so be it. But that will be for them and not for us and, moreover, we cannot be discriminated against or disadvantaged just because we want to pause here.
Thus, we will not join the euro. We will keep the pound. We will not participate in the Schengen free movement area. We will continue to exercise passport controls at our borders, whether you are entering the UK from another EU Member State or not. In the area of freedom, security and justice we will choose which measures to participate in. We adopt the European Arrest Warrant, for example, because we choose to, and not because it is imposed upon us contrary to our will.
The formal, treaty-based recognition that “ever closer union” does not apply to the United Kingdom is the belated recognition in European law of that which has been plain as a fact of European life for some time. The European Union of the twenty-first century is a multi-speed Europe, not a one-size-fits-all Europe. The European Union of the twenty-first century is a flexible Europe, a pic’n’mix Europe, from which the United Kingdom can and will choose what suits Britain, leaving for others what may suit them but is not in our national interests.
This, in the twenty-first century, is what sovereignty means. Not for a second do I believe that it is in the United Kingdom’s interests, any more than it would be consistent with our traditions, to turn our back on the world and embrace a lonely isolationism. If that is what you understand by sovereignty, your model is North Korea. For a trading nation, for an international leader such as the UK, for a permanent member of the United Nations Security Council, for a lead member of NATO and of the G20, what sovereignty means for us the ability to choose. That is what we have been doing with regard to the European Union for years, and formal, binding, Treaty recognition of this, is much more than a symbolic constitutional change – although, in matters constitutional, one should never overlook the importance of symbols.
Our exclusion from “ever closer union” will make real and practical changes to the ways in which the European Court of Justice is able to enforce EU law against us. At the moment we have a legal duty under EU law known as “sincere cooperation”. This duty means that we, like all other Member States, must take “any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties”. The Court of Justice is fond of using this duty as a big stick to hit Member States with. But in the UK’s case, the Court’s ability to do this will be much reduced by virtue of the fact that it will no longer be one of the UK’s Treaty obligations to embrace “ever closer union”. Signing up to “ever closer union” meant that the UK has never been quite sure of just how much of its sovereignty it has agreed to pool, or share, with the EU’s other Member States. Freeing ourselves from the bind of “ever closer union” means that we now do know. We agree that the EU’s institutions will have only those powers that we confer upon them under the Treaties. This far, yes, but no further. We’ve never been able to hold that line before. But now we can and, in the world in which we live, that’s what sovereignty is.
For all these reasons, I consider that David Cameron’s renegotiation of Britain’s place in the European Union has been a triumph. In the words of European Council President, Donald Tusk, Britain has secured for herself a “special status” in the European Union, one that fits our needs and interests, one that, you may say, is long overdue, but one which we should none the less welcome, and that has the unanimous backing of all 28 Member States. I believe also that the deal struck in Brussels last month is not the end of a process, but that it will herald the beginning of a new era in Europe. The era of reform in Europe, not ever more integration. The era of a Europe that does less, and does it better. The era of a more flexible Europe, of a more competitive Europe, of a more dynamic Europe. The era, in short, of a more Conservative Europe. A Europe we should remain in.
Part II – Brexit and Indyref2
No Unionist can afford to think about the UK’s future in or out of the European Union without taking into account the threat that continues to hang over Scotland’s place in the UK.
The question is this: would a vote to leave the UK trigger the end of the Union? The answer is that it might well do so, although it’s not inevitable. Certainly it’s a big enough risk that all Unionists should think very carefully before advocating Brexit.
The SNP leadership knows why Yes lost in 2014. It had nothing to do with the Vow or with the promise of further powers. It had everything to do with the fact that those advocating independence failed to make their economic case. In particular, they failed to make a convincing argument about the currency that an independent Scotland would use, and they failed to prove their assertions that an independent Scotland would enjoy an easy transition to becoming a Member State of the European Union and would somehow manage this without having to sign up to the euro.
Since September 2014 no public work has been done to deal with either of these fatal flaws. No case has been developed on the currency, and no work has been done on EU membership, either. The vision of independence preferred by the current SNP leadership is premised on both Scotland and the rest of the United Kingdom being Member States of the European Union. If the UK were to leave the EU, an altogether different prospectus for Scottish independence would have to be developed. In a rational world, that prospectus would be even harder to sell to the Scottish people than the failed vision of September 2014. Both the currency issue and the EU membership issue would remain as awkward as they have always been for the SNP. But, in addition to these unsolved problems, there would be another in the mix: the border with England. The SNP’s 2014 prospectus was based on an understanding (largely shared with the UK Government) that an independent Scotland would seek to remain in the Common Travel Area between the UK and Ireland. This, it was assumed, would keep Scotland out of Schengen and would thereby allow the border between Scotland and the rest of the UK to remain fully open, with no passport checks or security controls. It would be much harder for Scotland to maintain this position in the event that the rUK leaves the EU – indeed, the future of the Common Travel Area must be in doubt were there to be a vote for Brexit on 23 June – could it survive if one of its states (Ireland) was in the EU and the other (the UK) out? Scare stories about the Sangatte refugee camp moving to Gretna are, for the time being, just that – scare stories – but on this scenario they might just come true.
In a rational world, therefore, the case for Scottish independence would be even harder to make in the event of Brexit than it was in 2014. But this is not a rational world. If Scotland is “dragged out of Europe” contrary to her will because voters in England have elected to leave, the First Minister is surely right that demands for a second independence referendum will be deafening. Scottish sentiment will be so whipped up, so frenzied, that it may be next to impossible for rational economic arguments to cut through. Mighty obstacles still lie in indyref2’s path, not least that the United Kingdom government would surely not grant a fresh section 3o order to give a second independence referendum legal authority. But, again, the mood of the nation might be that such legal niceties, compelling in calmer times, are swept away in a tide of realpolitik. It will be chaos. And in the constitutional crisis that would engulf us there will be ample opportunity for Nationalist mischief-making. Independence in these circumstances would be economic disaster for Scotland, but that might be our future, regardless.
Perhaps I am being too pessimistic. But these remarks are not intended to frighten anyone. They are intended simply to illustrate that the consequences of a vote to the leave the EU, if voters in Scotland opt to remain, might be dire indeed for Scottish Unionists. In my view there is a good, Conservative case to be made for remaining in the EU even without taking these considerations into view. But once you add them to the mix that case becomes overwhelming.
(Part I of this blog post is based on a speech delivered to the Daily Telegraph fringe at the Scottish Conservative party conference in Edinburgh on 4 March 2016.)