Event Coverage: BRITAIN ALONE, 9 May 2014

Niall Coghlan, BPTC Student at City University  London

 

9 May is Europe Day. This Europe Day, Senate House hosted a conference with the strikingly un-European title ‘BRITAIN ALONE’. The all-star attendee list, with representatives from most major EU law firms and universities, European institutions and governmental departments, was eclipsed only by the eminence of the four panels. These were successively chaired by the Supreme Court’s Lord Reed; Henderson Chambers’ Sir Alan Dashwood QC; former Advocate General Sir Francis Jacobs; and the conference convenor, Professor Takis Tridimas.

 

Fourteen speeches on topics ranging from the constitution through finance to social policy resulted.  What follows is a digest of those speeches.

I: CONSTITUTIONAL ISSUES

Topics & speakers: A view from the UK, Professor Patrick Birkinshaw;

A view from Scotland, Professor Stephen Tierney;

A view from Northern Ireland, Professor Gordon Anthony;

Britain as Sovereign, Professor Paul Craig QC.

 

This session essentially analysed the nature of British sovereignty and its relationship with Europe. Opening, Professor Birkinshaw argued that EU and ECHR law have fundamentally changed the UK constitution since 1973 and that the result has been the development of a distinct common law tradition of fundamental rights. Axa was cited as particular evidence of this.[1] As the judiciary develops an increasingly anti-European bent, this distinct tradition continues to flourish. For instance, in Kennedy, the court declined to apply Convention law, instead applying the common law principle of transparency.[2]

 

Continuing, Professor Tierney analysed ‘two referenda, four scenarios’: how a yes or no in the Scottish referendum of September 2014 and a yes or no in any EU referendum come 2017 would interact. For instance: if Scotland voted to leave, would the remainder of the UK (‘Little Britain’, he smilingly suggested) represent Scotland’s interests in the EU renegotiation? If the remainder of the UK voted to leave, could Scotland succeed to its position in the EU?[3]

 

Professor Anthony discussed three potential effects of withdrawal on Northern Ireland. First, some argued that by freeing the Northern Ireland Assembly from EU policy constraints, withdrawal would increase the Assembly’s power. Yet the consociational constraints (such as the increasingly misused ‘petition of concern’) on that assembly would remain.[4] Would leaving the EU really help democracy? Second, by putting major matters of pan-Irish policy (such as agriculture) back in local hands, withdrawal may increase the importance of discussions in the North/South Ministerial Council. Power might consequently shift towards the Republic of Ireland, rather than towards London. Third, the Human Rights Act is a key pillar of the Belfast Agreement. Abolition would both undermine much post-conflict case law and likely breach that agreement.

 

Concluding, Professor Craig passionately attacked the 2017 referendum plan from two angles. First, he noted the focus in academic and popular discourse on the EU’s ‘democratic deficit’. This mistakenly places all blame on ‘“the EU” as real and reified entity’. One must realise that the cause of this deficit lies at least partly in the Member States’ hands. It is they, after all, who negotiate and sign the Treaties setting out the institutional balance. It would be perfectly possible for the Council and its President to be elected, for instance, but it is not politically possible because the Member States do not want it. Second, he asked what the UK hoped to negotiate. Finding a position acceptable to both the nationalists and other Member States would be rather difficult. In particular, the rigorous Balance of Competences review had so far found the balance between the UK and EU powers to be broadly correct. How could the UK negotiate when the other states know what these reports, commissioned by the government itself, say?

 

II: BRITAIN AND THE WORLD

Topics & speakers: The UK and the World, Alastair Sutton (Brick Court Chambers);

Defence and Security, Professor Anand Menon;

Concluding remarks, Daniel Denman (HM Treasury, speaking in personal capacity).

 

The second session analysed the UK-EU relationship from a global perspective. Opening, Alastair Sutton stressed that Britain was ‘poor at predicting change [in the EU], but excellent at causing it.’ Enlargement, the single market and monetary union were ideas originally driven by the UK, but then withdrawn from. Through figures like Lord Slynn and Sir Jacobs, Britain had immensely influenced European law and pushed it closer to the common law. Sutton’s second major theme was the impotence of an isolated Britain. Global tax policy is determined in international organisations like the OECD, and it is unimaginable that the TTIP deal would be contemplated with Britain alone.

 

Casting himself as the token political scientist, Professor Menon contended that Britain has unwisely abandoned its post-Balkans approach of working with Europe on defence. Britain is backing off from the Common Foreign and Security Policy and undermining the European Defence Agency. It demanded that the Libyan campaign occur through NATO rather than the EU in a way that seemed motivated by ideological obsession, not cold calculation. As Europe’s largest military force, Britain is thus missing the opportunity to lead the continent. More broadly, having 28 separate military budgets wastes Europe’s military potential, leading (for instance) to Europe relying on Russia for air transport in the 2008 Chad campaign. A more effective, albeit more bureaucratic, route is possible: for example, some EU states have now pooled their air transport.[5] As Russia threatens and Europe loses the sixty years of free-riding security it has enjoyed as a result of US support, this is critical.

 

Finally, Daniel Denman rued that he could not ‘join in the cheerleading for the EU’. The conference’s interesting discussion was disconnected from the critical concern for successive governments and civil servants: competence. This is not primarily about whether the EU should have competence in any area – though he memorably added that competence should not be seen as ‘virginity’, with powers once in Brussels always in Brussels. Rather, the question is whether the technical legal system within the EU optimally achieves the UK and EU’s global objectives. For instance, there have been around twelve CJEU cases on foreign relations, almost all of them institutional turf wars over who had competence entitled Commission v Council or Council v Commission. Whilst these questions are important, are they conducive to effective decision-making? If not, they should be on the agenda for reform.

 

III: OPTING IN, OPTING OUT

Topics & speakers: Criminal law, Professor John Spencer;

Immigration law, Adrian Berry (Garden Court Chambers);

Social Policies, Professor Keith Ewing.

 

The third session began with two areas in which Britain already partly disengages from the EU through opt-outs. Professor Spencer opened by analysing Britain’s decision to opt out of around 130 pre-Lisbon criminal measures and its attempt to opt back in to 35 of them.[6] This frequently involved Britain opting out of standards that she already meets, such as minimum penalties for drug-trafficking, and hailing this as a great victory for British justice.[7] Withdrawal would endanger even those 35, with unclear results. Whilst Dominic Raab argues that Britain could recreate the desired measures through bilateral treaties, 35 measures by 27 states would require nearly 1,000 instruments. Ultimately, EU criminal measures are necessary to combat the free movement of crime that comes with free movement of people. Britain could opt-out of criminal measures alone, but would become the Brazil of Europe. It could solve this by opting out of free movement of persons too — but it would then be Europe’s Burma.

 

Fittingly, Adrian Berry then mapped Britain’s increasing disengagement from European immigration and free movement law. Britain has frequently exercised its immigration opt-outs, at times in surprising ways.[8] For instance, highly-skilled migrants can obtain a visa to the whole EU through one ‘blue card’.[9] The UK, instead, has the highly particularised and complicated Tier 2 scheme, deterring such skilled migrants. This disengagement is increasing: despite opting into the previous refugee, refugee qualification and asylum procedure directives,[10] Britain has opted out of their respective amending directives imposing higher standards.[11] Similarly, Britain leads Europe in attempting to limit this right, as amendments to the habitual residence test and access to jobseekers’ allowance for EU citizens show.[12] The one area where Britain continues to positively engage is that of the common regulation for asylum entrants, though ironically this relies on the opted-out directives for certain definitions.[13]

 

Moving away from the focus on British opt-outs, Professor Ewing concluded the session by criticising recent European social policy. Delors’ 1988 speech to the British Trade Union had won workers’ support through promising that Europe would protect their rights.[14] Europe delivered: for instance, it recognised collective bargaining as a regulatory process in the Working Time Directive.[15] But since 2007, the EU has betrayed this promise. Expansion has undermined living standards. The Laval judgment has led to a gutting of trade union rights in Switzerland and Sweden, some of which have been found in breach of the International Labour Organisation treaty.[16] The imposition of conditions on Greece and other countries is undermining workers’ rights, with the Irish Supreme Court declaring a seventy year-old collective bargaining law unconstitutional.[17] Finally, TTIP would lead to a race-to-the-bottom in social standards; any clause protecting workers’ rights is, like the Weimar constitution, ‘sententious platitudes binding on no one.’

 

IV: BANKING UNION

Topics & speakers: Differentiated Integration and the Single Supervisory Mechanism Dr Pierre Schammo;

Untitled, Professor Niamh Moloney;

EU Law and Monetary Union: Parallel Universes, Professor Takis Tridimas;

Concluding remarks, Peter Parker (HM Treasury, speaking in a personal capacity).

 

The final panel addressed the European governance and law of banking. Opening, Dr Schammo discussed the future of the European Banking Authority (EBA) as it participates in the incipient Single Supervisory Mechanism (SSM). This participation risked undermining the EBA’s voting balance through a spillover effect. Whilst the European legislature has amended the EBA’s founding regulation to counteract this, Dr Schammo criticised these reforms as (inter alia) simply attempting to balance countries’ own interests. To function properly, the EBA should instead make decisions that reflect the EU’s interests as a whole. Several reforms were suggested, such as appointing independent trustees to the Board of Supervisors to represent the EU’s interest.

 

Professor Moloney began by highlighting the UK’s highly tense relationship with the EU over finance. This could be seen in the fact that every crisis measure by the EU included a provision prohibiting discrimination against non-Eurozone Member States; such a provision was otiose, given that non-discrimination is a general principle of EU law. Britain’s failed challenges against the Financial Transaction Tax Council Decision[18] and the scope of the European Securities and Markets Authority’s (ESMA’s) powers[19] underlined this. She continued by analysing ESMA’s role and contrasting it with that of other monetary institutions: for example, it leaves greater autonomy to national regulators than the ECB.

 

Professor Tridimas continued by analysing the structure of EU banking law. As in the US and Canada, the majority of case-law related to whether the federal authority (here, the EU) had the competence to take a measure, rather than the measure’s substance: hence Pringle[20], the Financial Transaction Tax[21] and ESMA[22]. In contrast with its strict scrutiny in fundamental rights cases like Kadi II[23] and the Data Retention Directive[24] case, the CJEU has adopted a highly deferential approach in financial cases. In ESMA, for instance, the Court rejected the Advocate General’s persuasive argument that the short-selling regulation was adopted under the incorrect article (thereby avoiding the requirement of unanimity).[25] This deference had in turn led to push-back from the national courts.[26] In summary, the cases showed the lack of a grand integrative plan; the clear double-standard between banking and rights cases; and the trend towards judicialisation of public finances.

 

In the final session, Peter Parker criticised the quality of European legislation and policy in free movement of capital. The Balance of Competences review for this area has indeed found that the balance was right. However, the quality of the EU’s legislation and policy is poor. It is frequently unclear, inconsistent and fails to understand the nature of different market actors. This is principally caused by two things: first, the sheer volume of post-crisis legislation. One financial year book had 100 pages on EU measures in 2002; in 2013, it contains 1,000. Second, the Commission is ill-suited to such legislation: financial services legislation aims to (1) remove obstacles, (2) persuade firms to stop fraud, (3) persuade firms to have financial stability and (4) protect consumers. The Commission is fundamentally suited to (1) alone. This causes serious problems, with small trust fund managers spending 50% of their profit on complying with rules.

 

CONCLUSION

BRITAIN ALONE went beyond its title: it provided a comprehensive overview not only of the prospects for an independent Britain, but also of the broader social, geopolitical and financial challenges facing the EU.