Over the last few days there has been increased speculation about the possibility of a referendum on Britain’s relationship with Europe. This has been fuelled by David Cameron’s piece in the Sunday Telegraph and a corresponding response from Liam Fox. This speculation has helped to normalise the idea of a referendum on Europe in a way that was simply unimaginable a few years ago. While the referendum jinni is possibly now well and truly out of the bottle, a referendum is unlikely to happen any time soon.
In his press conference following last week’s European Council, David Cameron, acknowledged that the difficulty with an in/out referendum is that it only gives people two choices, when what people actually want is a renegotiated relationship with Europe. Unsurprisingly therefore Cameron has placed greater emphasis on repatriating powers from Brussels. To be fair to Cameron, this isn’t a new strategy but merely the re-articulation of an approach he set in opposition.
Following the ratification of the Lisbon Treaty in 2009, Cameron ruled out the possibility of holding a referendum on Europe for the duration of the next Parliament. He did however promise to introduce a Sovereignty Act and a Referendum Act to ensure that any further transfers of sovereignty were subject to a referendum. Such steps were to be complemented with moves to renegotiate Britain’s relationship with Europe. Cameron suggested that should he be unable to repatriate powers then he would put the issue to a referendum following the next General Election.
Despite the difficulties of Coalition Government, Cameron has been true to his pre-election promise. Last year Parliament passed the European Union Act which provides an emergency brake on further integration. He has also instructed the Cabinet Office to audit Britain’s relationship with Europe and to highlight areas where the government should press for a repatriation of powers. That work is still ongoing and it is likely that the results will shape the next Conservative Party Election Manifesto.
There are real political difficulties with this strategy. On the one hand, should the Eurozone members take the quantum leap forward to full fiscal and political union then it is difficult to see how Cameron can avoid an in/out referendum at a time not of his choosing. On the other hand, the idea of having a referendum 18 months or two years after the next election risks overshadowing half his second term should he be re-elected. There is also no guarantee that he would win such a referendum.
The viability of Cameron’s third way strategy is likely to be sorely tested even before we get to the next General Election. Britain has until the end of 2014 to decide whether it will opt in or out of the Lisbon Treaty’s provisions giving new powers to the European Court of Justice over criminal justice and policing. At the moment the 130 odd Justice and Home Affairs decisions are loose accords, but after 2014 they will become as binding on EU countries as single market regulation with appropriate oversight roles for the Commission and the European Court of Justice.
It is difficult to see how in the present political climate Parliament, let alone the electorate, would sanction such a wholesale transfer of competences from Westminster to Brussels. But it is also clear that no British government would ever want to withdraw from all of the measures.
Britain has shaped much of JHA policy to date not least in the field of counter-terrorism and it has benefited from the European Arrest Warrant and its access to Europol and Eurojust. The last two director generals of the European Commission’s JHA directorate have been British, while the current head of Europol is a Brit, as have the last two presidents of Eurojust.
Even if Britain exercises its opt out and walks away it will want at a later date to opt back into some forms of EU cooperation, such as criminal record checks. Whether other member states allow Britain to adopt an a-la-carte approach is far from clear. Denmark opted out of this whole area at the time of the Maastricht Treaty and has only been allowed back into a handful of areas since.
The thought that in seeking to renegotiate our relationship with Europe, Britain in turn becomes the Brazil of Europe – a place where Europe’s criminals and drug barons take advantage of Europe’s provision on the free movement of people while staying beyond the reach of the law – is troubling.
How the government handles this ticking time bomb will reveal a lot about the viability of the government’s strategy to repatriate powers. It could also determine to a large extent what type of referendum question we end up with. The jinni might be well and truly out of the bottle, but so is its potential to cause the government and others considerable political damage.