Dave’s Dodgy Deal

On Saturday, after what seemed like interminable haggling in Brussels with his European Union counterparts, followed by a specially convened meeting of his cabinet, David Cameron went to the steps of 10 Downing Street and told Britons that a referendum would be put to them in June on whether Britain should stay in or leave the EU.

It was the fulfilment of a promise made three years ago as a part of his campaign to see the Conservative Party returned to office in the 2015 general election. He pledged to first secure a new deal for Britain from his EU partners; if it were insufficiently favorable to Britain, he said, he would urge British voters to reject it by voting for a pull-out.

Although reportedly not at all happy with the terms he eventually extracted from the leaders in Brussels, the Prime Minister pronounced them good enough to permit him to recommend that Britons vote to keep the United Kingdom in the EU.

Not only were these terms but a pale shadow of the radical reforms he originally urged, their legal standing has since been called into question by no less a figure than Justice Secretary Michael Gove, who, along with five other cabinet colleagues, has announced his intention to support the UK’s exit from the EU.

Gove pointed out that, since the deal amounted only to an international agreement between heads of government, not a formal treaty, it lacked formal standing in EU law and hence could theoretically be struck down as contrary to EU law by the European Court of Justice. That panel, the final arbiter of what EU law is, only recognizes formal treaties as binding.

And make no mistake, that the deal could be set aside by the ECJ is no mere idle theoretical possibility. A key element of it is the hard-won agreement of other member states to an “emergency brake” that Britain could apply to delay for several years the award of otherwise mandatory tax credits for migrants. Since all citizens of member states have complete freedom of movement within the EU, many come to Britain from the much poorer countries of Eastern Europe. It is easy to envisage how one of their nationals might mount a legal challenge to being treated differently by the British state from how it treats its own nationals. It could well constitute a form of discrimination that is contrary to EU law.

Gove was but the most prominent cabinet minister to register support for Britain’s exit from the EU. The Conservative Party to which they all belong has long been bitterly divided over the issue. Hence it was not surprising to see them announce their position just as the embargo was lifted on their expressing any dissenting opinion from the majority of the cabinet who support Cameron’s deal.

The campaign for the referendum has now begun, and what has proved much more difficult for Cameron to take in his stride has been the boost the “Brexit” side (“British Exit,” that is) has received from Boris Johnson, the Mayor of London. Mayor Johnson is a senior Conservative whose public profile and popularity are every bit as great as, if not greater than, the Prime Minister’s. His decision could well affect the outcome of the referendum, as David Cameron full well knows. According to a survey by the independent polling agency BMG Research, as many as 9 per cent of the British electorate are prepared to change their minds on the strength of Johnson’s opinions. The current margin of voters for and against ending the UK’s membership is closer than that.

Attending the House of Commons recently to announce the referendum, Cameron could barely conceal his anger with his former schoolmate at Eton and Oxford. He lost no opportunity to take several swipes at Johnson, pouring scorn on Johnson’s suggestion over the weekend that a vote for Britain to leave the EU could be used to leverage further concessions from EU members.

The Continental heads of government told Cameron in Brussels that Britain would be given no further opportunity to negotiate its terms of membership. As Cameron quipped to the House, in a thinly disguised allusion to the Mayor of London’s notoriously complex and not altogether savory love life:

I won’t dwell on the irony that some people apparently want a Leave vote only to remain. Sadly, I have known a number of couples who have begun divorce proceedings, but I do not know of any who have begun divorce proceedings in order to renew their marriage vows.

The Prime Minister followed that public insult by questioning Johnson’s motives for supporting the Brexit cause, suggesting his view on the matter had been governed less by genuine concern to preserve Britain’s sovereignty than by Johnson’s ambitions to succeed him as party leader and hence PM. Cameron declared to the House, planting his boot still further into the stomach of his hapless Right Honourable Friend on the back-benches behind him, “I am not standing for re-election. I have no other agenda than what is best for the country.”

How much and how soon prime ministerial venting of spleen will give way to serious debate on the merits and demerits of Britain’s continued EU membership remains to be seen. So far, defenders of the status quo are challenging their opponents to explain how and why Britain would not suffer substantial adverse economic consequences were it to leave under the current terms that would be available without further concessions.

They have a point. There can be little doubt that, without Britain’s securing in advance continued access to the Single Market after departure from the EU, there are likely to be substantial job losses for those working in sectors that export to the EU.

If enough of the British public can be sufficiently scared by talk of such economic pain, then a majority of them will vote to stay in the EU however much they resent, as many do, the adverse consequences of continued membership—not least of which have been, in their eyes, not only a loss of parliamentary sovereignty but the erosion of British national identity and social cohesion.

At the same time, two potential crises are brewing between now and the referendum that could put Brexit over the top. The first is the continued financial crisis in the Eurozone which, although it has not been heard much of lately, has by no means gone away and threatens to erupt at any moment into a full-scale economic meltdown should either a country like Portugal or a major bank like Deutsche Bank no longer be able to meet its financial obligations. The second is the refugee crisis precipitated by German Chancellor Angela Merkel’s ill-judged open invitation last summer to all would-be asylum seekers to make their way to Germany to seek sanctuary there, which has led to such influx of migrants from the Middle East and Africa that the EU seems no better able to deal with than it has been able to deal with the financial crisis.

A week in politics is a long time, said Harold Wilson, the second of two 1960s prime ministers who unsuccessfully sought Britain’s entry into the European Union (or EEC as it was then known), and who held Britain’s first in-or-out referendum after the Edward Heath-led government placed Britain in the EEC without one in 1973. (To understand the pressures these various prime ministers were under, see my Law and Liberty essay “The Yanks Made Us Do It”.) With four months still to go before the present referendum, we may yet see its outcome determined by what the earlier unsuccessful applicant for British entry Harold Macmillan once referred to in his patrician way as “Events, dear boy, events.” The two old Etonians now locked in internecine battle will understand all too well what their forebear meant.

Reader Discussion

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on March 01, 2016 at 15:49:40 pm

Excuse me while I think out loud for a moment and scribble a few notes to myself, if no one else. This is sort of a recap of things I've written about in previous comments, and I apologize to regular readers of the comments section if I seem like I'm proselytizing in the commentary here. That's definitely not my intention.

The problem with the EU and its states is that they have variations on populist government. There is no credible office assigned with the responsibility of applying the conscientious voice in saying "no" to bad law. That's the difference between populism and libertarianism.

Libertarianism holds that conscience--meaning compassion and rationality--is both the means and ends of government. Liberty in this case means primarily freedom of conscience, not simply freedom to make choices.

Populism holds that the general public is sufficiently endowed with conscience to direct government. The central theory, though widely believed, is disproved by the facts of history and the facts of current events. This essay provides just one more set of examples of that. Populists argue the false dichotomy that you can only have either a tyranny of the majority, or a tyranny of a minority, and the best of the two is the majority because at least that way people suffer from their own bad choices, so the people are more inclined to do what is the least harmful.

Populism has the compassion but lacks the rationality needed to make good decisions. The problem with populism (and its many variations) is that sooner or later you run out of other people's money.

Pluralism brings everyone to the table. It treats a society holistically. It recognizes that everyone is important.

There is a universe of difference between pluralism and populism.

In the original design of the US Constitution the senate was meant to be the primary instrument of conscience in government. It was not meant to be an executive government with the president at its center. It was meant to be a conscientious government with the senate closer to its center.

In the EU we see a variation on the theme of populism. The EU has no instrument of conscience, so it flounders. There is no one properly appointed and empowered to "just say no" to stupid decisions. Until that changes I see little that is especially good coming from the EU and its member states.

In theory, libertarian government can be pluralist without being populist. But it must have an office responsible for being the voice of conscience; it must have a means of appointing officeholders capable of working in that capacity; and it must have a means of securing and protecting that office from corruption and false accusations of corruption. The original Constitution had the first item correct, the second item unworkable, and the third item completely missing; so today we have a populist, not conscientious, senate. And because of that broken piece we have by default an executive government, not a conscientious government.

The EU has nothing like an chamber of conscience, so it's a mess.

I'm not sure that populist government can ever transform itself into libertarian government on its own because too many actors benefit from the irrationality of government-by-popularity-contest.

The EU and its states will continue to be a source of amusement and aggravation for some time to come.

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Scott Amorian
on March 01, 2016 at 18:30:14 pm


I get what you are saying. It is just that I seem to have a different conception of what a populist government is.
The EU would appear to be something other than populist - unless of course one is to consider the "popular" fads of the bureaucrats in Brussels and their academic elitist counterparts to be populist. Perhaps, this is so in that the bureaucrats represent / advocate positions popular amongst their fellow elites. But somehow, the various peoples of the member states (if they can still be called states) do not seem to be happy with the result.

It may be that what the EU needs is an expression of the *popular* will - maybe that would serve as the conscience to say no to stupid laws that emanate from Brussels. I know this turns things on their head but the people seem to be saying "WE want some representation reflective of our will."

IMHO, I hope Britain leaves, followed by France and Germany. Let the rest of them sink or swim. It is a shame that Britain, that wellspring of representative government and our own constitutional antecedent should have allowed herself to stray so far from those traits and political mechanisms that made her great.

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