Europe at the Crossroads: Professor Everson comments (Part 1)

This post was contributed by Michelle Everson, Professor of Law at Birkbeck. She has written widely on European Economic and Constitutional Law and has advised the European Commission, the European Parliament and the European Central Bank on matters of European Law.

Professor Everson is hosting a week long debate on ‘Europe at the Crossroads’ at Birkbeck (13-17 June). For details and to book your place, please visit the ‘European Law on Trial’ website.

Every day this week, Professor Everson writes for Birkbeck Comments, offering up her thoughts, opinions, and analysis on the EU referendum.

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Order in chaos

Assaulted on all sides by a vilely-tempered and wholly ill-informed Brexit ‘debate’, I ask myself daily why I am going to Vote Remain. I may be known as a Professor of European economic and constitutional law, but do not belong to the ordinarily-rapturous academic fan base for the European Union. Quite the country, the determination of all-too-many of my colleagues to view the EU only through rose-tinted lenses confounds me, and always has done. From the 1980s onwards, when, as a PhD student, I discovered in my own research that European integration was synonymous with a process of the disintegration of intricate historical-political accommodations, social mores and economic interest-balancing at the national level, my default appreciation of the Union has been one of suspicion. In the meantime, as the EU has been engulfed in financial and sovereign debt crisis and has been unable to respond coherently to migration crisis, my critique of the current deeds of the Union makes many a Brexit campaigner look moderate.

From the destruction of political choices within the regime of economic austerity constructed in the effort to contain sovereign debt crisis (European Stability Mechanism and Fiscal Compact), to the reduction of Greece to the colonial status of dumping-ground within a punitive migration regime that is as dysfunctional as it is immoral, the EU has been found wholly wanting. Worse still, as the normally-sustaining European rule of law has collapsed within politically-expedient judicial law-making to sustain the Eurozone through constitutionalised imposition of economic conditionality (Thomas Pringle, heard by the Court of Justice of the European Union in 2012), the very ideal of Europe as a continent of justice, democracy and solidarity has itself been traduced.

Yet, the European Union, even, and perhaps especially so in its flawed current incarnation remains one of the most ambitious political projects ever conceived. Far beyond its original pragmatically-ideational roots within the post-war desire to bind national economies so tightly to one another that any future conflict would be an impossibility, and outside the delusional realm of federalist dreams (we, the people, simply do not want one), the Union also embodies an old-new ideal of order in chaos, or of self-determination beyond the self-referential reaches of territorial sovereignties. This is its inspirational strength, but perhaps also its real-world tragedy as it is caught up in the self-same paradoxes of all such universalising projects – be they of might (colonial), or of the mind (religious) – as it equalises differences between its constituent parts, and creates its own self-referential communitarianism through the seemingly inescapable definition of its own territorial boundaries.

The Brexit debate has been dominated by a fight about facts. In the one corner, those determined to catapult the UK out of the Union have been evermore inventive (read mendacious) in their pursuit of figures that putatively demonstrate the unbearable strains of integration upon UK population numbers and the Exchequer. In the other corner, Vote Remain’s assertion that a no vote will lead to economic shock is better backed up by reputable research, but the campaign is nonetheless careless in failing to highlight that all economic prognoses contain their own uncertainties. The debate has been sadly misdirected as each side seeks to present a ‘truth’ of statistics. By contrast, little or no attention is paid in to visions of how the global world, the EU and the UK within it, might be ordered for the good. Yet, while cost-benefit analysis of EU membership will, in any objective analysis, simply falter within the complexities of the balancing of trade or social benefits against their regulatory costs, our age of economic globalisation is urgently demanding our conceptual attention: what are its challenges, how can we tame economic powers that ignore national boundaries, is there a common good within this global world and, if so, how might we defend it?

For a present-day generation of people living within Europe, a generation long distanced from the absolute moral certainty of a post-war generation determined never again to break the peace, and, in its youthful global outlook, even less inclined to commit to a culturally-foreclosing European federalism, there is only one possible ideational vision of Europe to which they might commit: the search for an order in chaos, for a form of governing beyond closed national communities; an order which defies the inequalities created by unconstrained markets and capital, and an order which seeks also to establish justice, democracy and solidarity outside the certainties of a once-sustaining but now illusionary territorial (national) sovereignty. The European Union of 2016 is not the European Economic Communities of 1958, having morphed from an international community of market building into a supranational body of ever closer Union between its peoples. Nor is the European Union of 2016 a happy or uncontroversial one, as efforts to save the Euro feed the pressure for ‘more Europe’, but simultaneously undermine the political and social values that must always be a part of the European project.

Michelle Everson

Professor Michelle Everson

Yet, throughout its history and still today, the European project has been the drawing board for a sustainable ideal of civilised internationalism. That Europe is and always will be beset by its own contradictions of equalisation and boundary-drawing, or that it seems, currently, to be complicit within rather than controlling of the economic forces that are globally threatening to overwhelm all human (non-economic) self-determination, are happenings that simply cannot be denied. At the same time, however, Europe’s current malaise cannot and should not be taken as reason to walk away from the best enunciated and most practised iteration of the search for order in chaos offered by any post-national organisation now operating on the global stage. Instead, we must learn from Europe’s failures in order to fight within the EU for all of the advantages of order in chaos; for opportunities of human innovation on the one hand (rights of engagement within markets), and for the securities of self-determination on the other (rights of control over markets).

Law on Trial 2016: The European Union at the Crossroads, runs at Birkbeck from Monday 13 to Friday 17 June. Book a free place here.

Listen to Professor Everson on the topic of the EU referendum in the latest edition of Birkbeck Voices

This post represents the views of the author and not those of Birkbeck

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Brexit – is it even possible?

Law on Trial 2016This post was contributed by Professor Erik O. Eriksen, Director of ARENA Centre for European Studies at the University of Oslo, who will be participating in a panel discussion on Friday 17 June as part of this year’s Law on Trial events. Law on Trial is the School of Law’s annual week-long programme of free-to-attend public lectures and panel discussions and this year puts the European Union on trial – one week before the EU referendum in the UK.

Can the Brits actually decide if they want out of the EU on the 23rd of June?

There have been quite a few moments of truth in the British debate about leaving the European Union. Increasingly it has become evident how deeply involved the country is in the EU, and how dependent the Brits are on European cooperation. The debate has highlighted the importance of the financial industry, whereby London City would be threatened by the replacement of Frankfurt as a leading European finance centre. Then there is the issue of agriculture, which would be left without subsidies from the EU. Business in general is dependent on immigration. The same goes for healthcare. Leaving the EU is said to have consequences for staff, waiting lists and the quality of treatment in British hospitals.

And also soccer, a major industry with a turnover of billions that relies on free movement, would be affected. There are currently 332 soccer players from the EU playing in the top league in England and Scotland. These players, however, do not fulfill the criteria for working permits for citizens from non-EU (member) states. Surely such matters can be arranged, but what will withdrawal mean for the rights of Britons that live and work in the EU? And how will the relationship of the UK with third countries look after a withdrawal from the EU?

The situation of the UK in the EU illustrates a general point about an integrated Europe. Much sovereignty has been delegated, interdependence has increased. Integration has affected the very nature of nation states. Many laws will have to be rewritten if the country leaves the Union. This should however not come as a surprise. The EU is known to be more than an intergovernmental organisation, where states can easily withdraw.

The EU makes its own laws that are binding on the members. And the internal market is much more than a free trade zone. The Union abolishes differences in laws and standards and develops new rules and regulations that all members have to accept. This uniform regulatory framework provides legal certainty for market participants. Within the EU cases can be brought before a supranational court. Rules shall be interpreted, enforced and complied in the same way. The European Economic Area (EEA) Agreement that Norway, Iceland and Lichtenstein have with the EU, makes this apparent. EEA law has no material substance in and of itself, but obliges Norway to accept existing and future EU law.  It should therefore not be seen as EEA law, but rather EU law.

Right to sign out?

There is a right to withdrawal from the Treaty, but how does this work in practice? First of all, the conditions for withdrawal need to be negotiated. These negotiations can take up to several years.  At present there is no majority in the House of Commons on any option for withdrawal. Some want to negotiate first, others want to use the withdrawal-clause immediately, and then there are those undecided. The problem is that the country has to get rid of complex regulations, covering different policy areas. New policy has to be created to replace abolished EU regulation.

Second, the future relationship with the EU needs to be renegotiated. All, including EU-sceptics, acknowledge that they cannot manage without some kind of agreement with the EU. In particular, the Union represents the world’s largest market with its 500 million inhabitants. The Brits are dependent on an agreement with the EU in areas of common interest.

The example of Switzerland, a country that has 120 bilateral agreements with the EU, shows how complex such a relationship can be. Neither do we know what the political climate will be after a possible ‘no’ in the British referendum. It is difficult to first withdraw from the Union and from the incurred commitments, and then start negotiating good terms for continued cooperation. Divorces are seldom pleasant.

Third, bilateral trade agreements with third countries have to be established, to replace those that have been signed with the EU. This creates many uncertainties, especially because large trade agreements are at present negotiated between blocks of countries, where the great powers China, the USA and EU dominate. From an economic perspective, there is a risk of an economic downturn in the UK after withdrawal. Financial markets already signal unrest over a possible turbulent economic situation in the future.

These factors can lead to a legal nightmare and years of negotiations and uncertainty. One thing is for sure: leaving the Union would change the UK’s trade relations with the EU and the rest of the world significantly.

Unclear consequences

Furthermore, a whole list of other problems arises if the UK decides to leave the Union. What about the rights of the almost two million Brits that live in other EU member states, and make use of the rights they have as EU citizens? British pensioners living in Spain, for example, have access to Spanish healthcare.

The UK has also considerable clout in the foreign policy of the EU. It is therefore unclear what role the country will be able to play outside the EU. The UK will become less important to the USA and many argue that as a former empire, the country will have difficulty in being regarded a neutral broker.

Even areas where Brits enjoy opt-outs from the EU’s laws, as in asylum and immigration policy, are affected by EU decision making. If for example the Dublin Regulations in which member states are responsible for examining the application of asylum seekers is abolished, the UK will not be able to deport them.

Withdrawal is risky also because Great Britain’s unity is at stake. Scotland might withdraw from the United Kingdom.

Problems attached to the withdrawal seem insurmountable, but in a referendum it is not always the rational arguments that prevail. Often voters vote on other things, often external factors and trust in present powerholders play a decisive role. This referendum is particularly interesting for two reasons.

The fiction of alternatives

First, the referendum forces those in favour of continued EU membership to be on pitch. They have to clearly state why the EU is important, and dismantle wrong information and falsely-grounded ideas about what a country in ‘splendid isolation’ could achieve. We rarely hear Brits talk about the EU in positive terms.

Secondly, ‘Brexiters’ have to propose a realistic alternative. Those in favour of withdrawal have to present a credible alternative to EU membership. Responsible politicians have to make evident how a United Kingdom outside the EU would be able to cope in an increasingly interdependent world.

There is no current agreement on what a United Kingdom outside the EU would look like, and how relations with other countries are going to be upheld. Some argue that Britain only needs a customs union with the EU; others argue that they can expand their cooperation with the Commonwealth, and yet others look to Norway’s EEA Agreement and Switzerland’s bilateral agreements. But are any of these models realistic alternatives?

A customs union with the EU – with free market entrance – is only possible if the other 27 EU countries agree, as it requires Treaty amendment. An agreement will not be acceptable without significant contributions from the United Kingdom. Agreements with Commonwealth nations, which can be difficult enough since they now have strong relationships with other countries, would not compensate for the loss of the EU market.

Both the EEA model and the Swiss bilateral model would entail getting access to the internal market by accepting EU law and regulations. The Brits would then be no better off than today with regard to sovereignty, quite the contrary. By adopting any of these models, the United Kingdom would become partially EU member, but without being able to influence EU decision-making.

British EU sceptics want to roll back integration and return sovereignty to national institutions. They frequently reject an affiliation like the Norwegian one because it would mean even more EU dominance. Norway has abstained from having influence, but not from being affected by the EU’s decisions. The core of EU scepticism lies in the experience of being governed by others, which is the reality in the EEA. The Norwegian loss of sovereignty is not compensated by co-decision in the European Parliament and Council, as is the case for Great Britain. Power is not the same as sovereignty. The ceding of sovereignty increases power when it gives actors decision-making power in supranational bodies.

It is not obvious that the UK can actually fully withdraw from the EU. It will be difficult to avoid ending up in a similar situation to that of Norway or Switzerland, where EU laws are accepted in exchange for access to the internal market.

There is, as far as I can see, no realistic alternative to (a reformed) EU, while the fiction about an alternative is what motivates British EU sceptics. This very same fiction underpins the continued legitimation of technocratic EU adaptation made by the opponents to Norwegian EU membership. But what is a plain fact in Norway is the ultimate horror for many Brits.

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Three Reasons Why Boris Doesn’t Matter

This post was contributed by Dr Benjamin Worthy, lecturer in Birkbeck’s Department of Politics. This blog was originally posted on the 10 Gower Street blog on 23 February 2016.

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On Sunday evening, Boris Johnson, with the zeal of a convert or the scheming of a Machiavellian, has decided to join the ‘Outers’. Here’s 3 reasons why it doesn’t matter:

Reason 1: Boris isn’t that popular. Remember, Heineken isn’t that strong. I’m intrigued by the poll in the Evening Standard that claimed ‘he could be a game-changer in the historic vote’ as ‘one in three people regard him as “important” to deciding whether they vote In or Out’. Putting aside exactly what ‘important’ means, the statistics are revealing. 32 % of those asked said Boris could be ‘important’ but a full 28 % said Theresa May’s and George Osborne’s views were important-only 4 % points behind Boris (and 23 %, by the way, identified Stuart Rose as ‘important’ too). So if, as the report claimed, Boris could ‘partly’ cancel out Cameron’s influence, presumably May and Osbourne could do the same to Johnson? Boris’ position as ‘the most popular politician’ is often cited though his reach to UKIP voters is probablyrather unnecessary– and it looks like Nicola Sturgeon pipped Boris in the popularity stakes at least once.

Reason 2: Boris doesn’t do arguments. As Janan Ganesh argues in the FT‘voters like Mr Johnson. But they like Judi Dench too. Liking someone and deferring to their judgment on a serious question are different things’. As a number of people have argued, what the Leave campaign needs, above all, is a serious alternative vision, equivalent to the Scottish YES campaign’s positive, mobilising narrative. Boris hangs hilariously from aerial slides but he doesn’t really do ideas or arguments, just quips and ‘mishaps’. Cameron’s speech last night in Parliament was perhaps a taste of the gravitas, clarity and seriousness the Remain campaign will deploy. Judging by his question in Parliament, Boris’ re-joiner will be about ‘soveregnity’ a word not even constitutional lawyers agree on. And there is no nuance or wriggle room in a vote to leave.

Reason 3: Boris doesn’t do teams and messages. Being the Mayor of London is (or was) the perfect job for Boris, where he can be a maverick, a loose cannon and is able to rail against everyone and everything. His record when part of an organised group e.g. in the shadow cabinet, is much less glittering given his tendency to be rather egocentric or, as one unkind review put it, a gold medal egomaniac. How will he fare as part of an organised group with a message and a ‘line to take’?

Boris cites his great hero Winston Churchill. However, for most of the 1930s Churchill, a

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similarly gold medal level egotist, entangled himself in a series of failed and doomed campaigns, from the cross-party ‘arms and the covenant’ rearmament initiative (which he almost wrecked), to supporting Edward the VIII and a bizarre solo effort to stop Indian independence. Churchill was very much, and very often, on the wrong side of history, and only his later struggle against appeasement saved him.

Last night, Michael Crick quoted an unhappy MP who spoke of another Churchill, Winston Churchill’s dad, Randolph (above). He was also a famous politician, gifted, witty and talked about as a future Prime Minister in the 1880s and 1890s. Randolph had, as Winston wrote of his father, ‘the showman’s knack of drawing public attention to everything he said or did’. Why did his career end? Boris take note-he gambled and took sides against his own party and leader on a fundamental debate in British politics. And lost, never to return.

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