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.