Britain’s sovereignty – why Britain’s place is in the EU.

Britain’s sovereignty – why Britain’s place is in the EU.

Introduction.

Today, the EU is one of the world’s most powerful trading blocs and incorporates most of Europe. It has not only brought peace successfully for the longest period in European history; but has also played a role in the transition of prior fascist and communist dictatorships. Against this, the EU has been criticised for lack of transparency. The recent referendum of Brexit may signify that people believe that European integration has come at a cost to different countries’ sovereignties.

In fact, one of the key dilemmas that the EU has faced since its earliest days is to decide which areas or competencies should remain the responsibilities of nation-states and which should be placed under the direct responsibility of the EU.  To fully understand how these competencies have come to be understood by the EU, we need to understand something about its history. More specifically, we need to go back to the end of World War II; and how since then, the EU has successfully brought about the development of a Common Market for goods, services, capital and persons; the development of a single European market; the adoption of a European currency; the development of common policies towards security and defence, as well as the field of justice and home affairs.

Inter-collaboration between EU states.

The EU started at a time when there was a felt need for inter-collaboration between European states as a way of providing Europe with a long-standing peace. This European integration process emerged from a Europe that had been struck by an extraordinarily destructive war. Europe was also split down the middle by a two-superpower cold war; a geo-political situation that only ended in 1989. According to Staab (2011) after the war, two main streams of thought emerged about how Europe could come together. While Winston Churchill favoured what we can call a minimalist view which mainly took the form of a view of a relatively more unstructured coming together of states; Alteiro Spinelli, who was a philosopher from Italy, favoured what we can call a maximalist view which mainly took the form of a view of a federalist formation of states somewhat based on the US model which would lead to the creation of a ‘United States of Europe’. However, Churchill was also a European federalist. This is very clear. He just thought that Britain already had a huge group behind it; and that it led that group - the commonwealth. Of course, that idea swiftly collapsed subsequently and most especially after the Suez crisis, Britain felt increasingly on its own.  The argument that Churchill brought up to push forward his minimalist view was put forward in 1946, whereby, in a highly acclaimed speech in Zurich, he emphasized that lasting peace in Europe could only become increasingly possible if people had stronger trade relations. If war had to break out between them, this would thereby influence them economically, and they would think twice about it. 

According to Staab (2011), the EU has evolved into a system which is characterised by both ‘supranationalism’ and ‘intergovernmentalism.’  Saying this, ‘supranationalism’ is a word that needs to be used with great caution as it can be easily misunderstood. It would be better to say that the EU sometimes acts as a unitary actor (in federal areas). By manner of illustration, Russia has many many national groupings in it and is a federation. Does that make Russia "supranational"? No, it is just federal. It is federal in many areas, even (unlike the EU) including all foreign policy. This is because it is a closed federation.  In fact, the misconception of the EU being a supranational body is essentially one of the arguments used by proponents of Brexit as they assume that this makes countries less sovereign and by implication less able to pass their own laws. This would perhaps hold water had there to be no involvement whatsoever in EU affairs by individual member-states and the electorate. Way back, as far back as 1979, direct elections to the European parliament not taken place, even though before this, the members of the European Parliament (MEPs) were appointed by governments. Direct elections gave the parliament greater legitimacy and attracted political actors who associated the European parliament with greater potentials for their own self-actualisation. Supranationalism is easily explained by using the example of the Court of Justice of the European Union over-riding decisions reached by national courts; and thereby refers to the surrendering of certain decision-making to higher powers. 

From its beginnings, what today we call the EU, in federal areas, has acted as one. However, in state areas member states could act inter-governmentally. To illustrate this by pressing the forward-fast button, the Bologna process has been a result of inter-governmental action in an area of state (separate) competence. But this does not deny the open federal model. It's a result of it. If we are to take a crude definition of supranationalism, this, on the other hand, is contrasted with intergovernmentalism, and this is why it is best not to think of the EU as a supranational entity.  Once again, to use an example, when war broke out in Iraq, some countries including Britain favoured military interventions, while others supported inspections by the entrusted United Nations personnel.

So, it needs to be clear that the EU never acts like a closed federation. It only acts like an open one. It is an open one by force of absolute, total and horizontal foundational constitutional law. A single breach would be a beach of its constitutional law. This is the principle of parallelism. In effect, the EU does not have a single foreign policy, implying that governments are autonomous is how they operate. If all governments agree, as was the case with the condemnation of Apartheid, then it became possible for the EU to impose sanctions on that country, and thereby form what seemed to be a common foreign policy from the way it came to be operated. However, even though at first sight this appears not to have been a supranational decision since it was taken by the countries directly; since trade is a federal competency, it was the EU that imposed those sanctions, and therefore this meant the use of a community method. The community method necessitates that decisions are taken at a federal level within the EU. This brings about single action and single decision through single federal institutions. This is only applied to federal areas in an open federation. State areas are exempt from the community method. Their competence in such instances is national. And if states want to act in concert, then they must agree things inter-governmentally, as had happened with Apertheid above, and federally, since they needed to act in concert as a European ‘Union’.

The European Coal and Steel Community (ECSC), which was set up in 1951, by means of the Treaty of Paris, was aimed at engaging countries to share the raw materials used to generate war (steel for weapons and coal to run the factories with); and in sharing in this way, thereby, greatly reduce the likelihood of a war breaking out between them. Staab (2011) sees this as a supranational formulation, and at first sight, it would be difficult to disagree, since once the countries had decided between them, it would be difficult, if not impossible, to rescind what they had agreed. However, the Treaty of Paris was an international treaty based on international law, designed to help reconstruct the economies of the European continent, prevent war in Europe and ensure a lasting peace and can be said to best subscribe to open federal models.  It's like a treaty that created an embryonic beginning of a state. It took sovereignty over coal and steel out of the hands of the states. As my friend Ken Mifsud Bonnici explains ‘It made the decisions on coal and steel NOT intergovernmental. Which is very strange for a treaty! This is because Treaties usually set up confederal i.e intergovernmental institutions. This agreement set up federal ones. Which is usually the business of constitutions, not treaties. Effectively you have the setting up of a federation by treaty. This is not simply an agreement between states but rather an agreement that has a seemingly constitutional nature to it’. It is clear that the Treaty of Paris was a very specific, very limited constitutional treaty and not a simple agreement between states. It set up machinery to transfer state sovereignty which made it particular. As Ken Mifsud Bonnici further explains, ‘A treaty that sets up confederal institutions does not transfer sovereignty. They remain intergovernmental. A treaty that transfers sovereignty is constitutional in nature. Of course, the treaty did not set up a new country to the exclusion of its signatories. What it did was just set up a federal level ONLY with competence over one single thing, coal and steel production. But the result of that is the invention of the open federal model’.

One can say that the ECSC was the first open federation. The most decentralised in history as the only federal competence was control of one market. For the rest, the states remained fully sovereign. Ken Mifsud Bonnici goes one step further than this when observing that there’s a complete breaking, decoupling, of closed federalism. Unlike the state of Texas which cannot contract with Mexico as Mexico has to go through the US (closed federalism) the ECSC introduced two components. The first is that there needed to be a federal and state division of competences – some things needed to be decided federally others nationally. The second is that there was no need to have one entity that is responsible for all that is external since in certain areas of competence, countries could act independently. But confederal systems have neither of those two. That marks the birth of the open federal model. (As a point of interest, the British did not join the ECSC. This is because they had nationalised the coal industry under British Prime Minister Clement Adler; and, therefore, it would not make sense to have it in any other way that totally subject to the control of the British government, which was the goal of nationalisation). The setting up of the ECSC was also accompanied by the setting up of the Council of Ministers and a Court of Justice. Even though Staab (2011) sees the Council of Ministers as operating inter-governmentally, in reality, a counterargument to this can be provided. This is because the Council is not a decision-making body between states. The best way to explain it is to compare it to a legislative chamber, somewhat similar to the senate in the US. Is that intergovernmental? No. This is because even though the senate has two representatives from each state in the US, they form part of a federal level institution executing the power of a federal chamber. They can only act in matters of federal competence. They do not act on behalf of individual states. They do not exercise state powers. The chamber is filled though with state representatives. It’s the same with the Council. To a certain extent, the Council is the senate.

Sovereignty and open and closed federations.

Sovereignty is clearly a difficult subject to capture in a few pages. My friend Ken Mifsud Bonnici, a lawyer with considerable experience in different EU set-us explains this as follows ‘I think the best way I can illustrate it is to say: will the UK naturally evolve into a presidential system like France? Will Germany evolve into a parliamentary monarchy, like the UK? No. Why not? Because they are different systems/models based on foundationally different constructs and traditions and conceptual frameworks and machinery. Each system evolves on its own path, from its own tradition. And things like French presidential authority, or the notion of the "crown" or common law get set in stone as foundational and built on.’

We need to also make an important distinction between open and closed federations. An example of how the US can be seen as a closed federation would be if it say Mexico wants to sign an agreement on education with Texas. Because the US is a closed federation, it would not be able to do that. It would have to enter into agreement with the US. The EU is a more complicated beast to understand, since, in some ways it acts as a closed federation, and in other was as an open one. It is an open federation on non-federal issues, and education is one of these issues. Therefore, it is possible for Britain to sign an agreement with Mexico on education. For the EU, competencies are divided into three categories: those where the EU has exclusive competence (Article 3(1) TEU) (only the EU can act); where competences are shared between the EU and the member states (Article 3(2), together with the principle of federal pre-emption / primacy (the member states can act only if the EU has chosen not to); and where the EU has competence to support, coordinate or supplement the actions of the member states (article 6 TEU) – in these areas, the EU may not adopt legally binding acts that require the member states to harmonise their laws and regulations.

The TFEU (or Treaty of the Functioning of the European Union) is a cardinal treaty. This is because the start of the EU, as we know it today, was what came to be called the Treaty of the Functioning of the European Union in 2009, or as it is referred to traditionally, The Treaty of Rome. This Treaty brought about the creation of the European Economic Community (EEC). It was signed on 25 March 1957 by Belgium, France, Italy, Luxembourg, the Netherlands and West Germany and came into force on 1 January 1958. Alongside the EEC, the Treaty of Rome also established the European Atomic Energy Community (Euratom). Euratom was aimed at integrating the European atomic industry this not only making it possible for countries to work together in the industrial uses of atomic energy but also to foster peace in much the same way as the underlying philosophy of the ECSC accentuated. Efforts to set up a European Defence Community had failed, and likewise a European Political Community, which would set up common foreign policies; mainly because of France’s fears that remilitarising Germany, even if within the remits of this Community, seemed too threatening a prospect to it. In its initial stages, France was reluctant to join the common market that was being set up (i.e. the EEC) since it believed it would be exposed to the competitive forces of other countries; but eventually conceded on the introduction of the Common Agricultural Policy which was seen to favour its agricultural interests.

Following this, the European Commission, which following the proposal of Robert Schuman, French Foreign Minister, on 9 May 1950; originated, in 1951, as the High Authority in the European Coal and Steel Community. Great Britain did not have an easy task to join what today we call the EU. In 1961, De Gaulle blocked the British application to join, believing that Britain was too biased toward the US; and, to him, this implied that Britain did not have a true ‘European’ vocation. In 1967, he once again blocked the British application to join. He had protested so strongly that this gave rise to his recalling all French ministers, this leading to the ‘empty chair crisis’. Eventually, this situation was resolved by allowing a system of majority-voting to be adopted, but when member-states believed that voting was to be taken on issues that threatened their national interests, then the voting would revert to unanimity. This meant that any country could veto a proposal by the European Commission implying that member states had considerable power in the way the EEC was run.  A further key defining moment in the evolution of the EU that took place at around this time was the coming together of the European Economic Community, the European Coal and Steel Community, and the European Atomic Energy Community (in 1967). 

The Common Market – if its ‘common’ can Britain be sovereign?

To answer this question from a historical perspective, we need to point out that until the 1960s (and even the 1970s), the establishment of a Common Market had not yet materialised, and the free movement of goods, services, capital and people was obstructed by each country having different regulations and standards and the associated lack of complimentary legislation which further confounded the issues by not enabling common solutions to shared problems materialise. It is perhaps this characteristic of the EU that has not been acknowledged by supporters of Brexit. With the establishment of a Common Market, eventually countries could derive dead weight gains from EU legislation that remove non-tariff trade barriers (for example, identical standards for things ranging from washing machines to parts of cars).

The setting up of the Common Market has come to be associated with the euro; and, therefore, the key question that leads on from here is does the setting up a common European currency imply a loss of sovereignty?  However, in answer to this, if this was indeed the case, why were so many member-states ready to give up their currency and instead adopt the Euro over the course of time? The answer to this is liable to also reflect certain historical factors which convinced countries that there were advantages to doing so. including making prices across the EU more transparent and thereby facilitating trade between members. Labour and goods could also flow more easily across borders to where they are needed, allowing the member-states work more efficiently with one another. In the 1960s, there was already a felt need to integrate the German economy into a wider European fabric; even though the Euro was not formally adopted by twelve countries, until 2002.  However, going back in time to the 1960s. Turmoil on international currency markets between 1968 and 1969 threatened the common price system of the common agricultural policy, a main pillar of what was then the European Economic Community. Since the German economy was so strong at the time, other countries feared that it had the potential to influence their economies detrimentally. Efforts to create an Economic and Monetary Union (EMU) were disbanded in the 1970s even though there was no time when the need for the introduction of a single European currency became increasingly evident. Attempts, subsequent to this, at achieving stable exchange rates were hit by oil crises and other shocks. Europe was in an economic crisis, since in the 1970s, the Bretton Woods system that essentially pegged the currencies of European countries to the US dollar by means of fixed exchange rates was disbanded on the grounds that a freely traded US dollar would serve to bolster American exports thereby resulting in a more favourable balance of payments for the US. To make matters worse, the oil crisis in 1973 and 1979; wherein Arab countries decreased the production of oil, further impacted Europe negatively; contributing to both inflation and unemployment.

From the time of the Treaty of Rome and the Treaty of Paris, it was already clear that the EU was aiming for optimisation and greater efficiency. There was already a thrust to collective decision taking. Therefore, if we have a common currency, we can't have a national government that borrows itself to death and blows the common bank) that require it.  This does not mean that once in place the Euro has not been subject to several budgetary oversights and as seen by its having become a candidate for international bank resolution after its adoption in the EU, after 2002. Centralisation is therefore a key feature of EU operations. This is not a negative thing. For example, as my friend Ken Mifsud Bonnici explains ‘there are areas where centralising saves our taxpayer tons of cash - for example we all have our health systems buy pandemic and influenza vaccines, every year, we get them at a much better price if we buy as a block and there's simply no downside to that. Its pure money saved. Also, it does not make sense to have 28 versions of the Galileo GPS satellite network. Or 28 European space stations.’

Campaigners for Brexit argue in favour of decentralisation and associate decentralisation with greater sovereignty. However, the two do not necessarily cancel each other out. Citing my friend Ken Mifsud Bonnici again, ‘let's say if we take the extreme scenario where Russia gets aggressive militarily and the US won't help. That would cause us not to create a common army, but probably to centralise some command and control capacity, ability for our armies to deploy and operate together effectively. Management of transport and logistics systems. Common funding for protection in the East and a missile shield that is run by Poland. Common European funding to France and the UK to build your nuclear deterrent bigger. So, bits of centralisation can happen organically where needed. Hypothetically, if the EU is under external *existential* military threat (potential crazy American invasion) we will centralise hugely and build a massive centralised European army in no time because survival. We can do that. The chances of that happening are incredibly remote, but by unanimity in our parliaments (and a couple of mandatory referenda in the UK and Ireland) we can and that would get unanimity in a second in a survival scenario. It's organic, responsive to the needs of all EU member-states. Remember, we centralise and decentralise based on our convenience only. And decentralised is naturally better as we all like being different UNTIL we need common power, and we can create common power formidably quickly if a crisis is big enough’.

The need for EU countries to come together monetarily was experienced particularly in the economic turmoil of the 1970s where various countries in Europe realised that they were to remain economically disadvantaged if they were left to cope on their own. In response to this, in 1979, the European Monetary System (EMS) was launched. The EMS was built up on exchange rates that had been defined with reference to a newly created ECU (European Currency Unit), which was a weighted average of EMS currencies. An exchange rate mechanism was used to keep participating currencies within a narrow band. The EMS represented a new and unprecedented coordination of monetary policies between EU countries and operated successfully for over a decade. Building on this success, work was then undertaken to complete the internal market (1990-1994), namely through the introduction of the free movement of capital, to prepare for the European Central Bank (ECB) and the European System of Central Banks (ESCB), and to achieve economic convergence (1994-1999); and to fix exchange rates and launch the euro (1999 onwards). The Treaty on European Union, or Maastricht Treaty, which contained the provisions needed to implement EMU, was agreed at the European Council in December 1991.

The Common Market is thereby a statement, a statement of togetherness between different member-states. Economically, it meant that they could access a much larger market than any country on its own. From a peace perspective, the common market meant win-win opportunities for trade. It was this sprit of togetherness which thereby did not defeat sovereignty but rather contributed to it, since it meant that counties recognized that they needed to cooperate in order to win, and that, in doing so, they could all be winners.

The Maastricht Treaty

Staab (2011) explains that the Maastricht Treaty was important for several reasons. It gave the European Union its name, and its name also reflects the sense of togetherness between different member-states that had been promoted emphatically since the signing of the Treaty of Rome. It also gave European citizens, to use the name that European people who were citizens of EU countries during the Lisbon Treaty, uniform rights. The EU’s legislative powers were drafted through a new method of legislation called the co-decision procedure; and the European Parliament had to appoint an ombudsperson so that EU members would be enabled to challenge administrative decisions taken by any EU institution should they so require. Another independent institution – the Committee of the Regions was set up to include regional voices in the EU’s legislative process. The Treaty of the European Union was constituted of three pillars: Pillar I – the Economic Community including the EMU and the single currency. Pillar II – Common Foreign and Security Policy (CFSP). Pillar III – cooperation in the fields of Justice and Home Affairs; including police cooperation, immigration, asylum and internal security matters. Decisions in Pillars II and III were made by inter-governmental decisions between member states; whereas pillar I on economic and monetary union, the single market, agriculture remained within the domain of qualified majority voting and supranationalism.

This Treaty proposed, in a concrete way, areas that are federal and areas which are sovereign. For instance, in Pillar I, there was not only a single currency set up but also a single monetary policy, such as one interest rate, for all participating countries. In Pillar II countries could present a unified presence in international diplomacy but any decisions made had to be based on unanimous agreement between all member states rather than majority voting. The setting up of the Western European Union was intended for ‘defence implications,’ but required unanimous agreement to become active. Likewise, cooperation between countries under Pillar III also had to be based on unanimous agreement between all member states. (Within the Maastricht Treaty, the opt-out policies implied that Denmark and Britain had the option to withdraw from EMU and Britain also from the Social Charter). In setting up these pillars, the EU was making a bold statement, namely that all EU member states would work to treat each other as family, and never again as foes.

The notion of forming a closer union now made sense, since by having a single monetary policy, it was clear that that there would be a commitment between nations to ‘do good’ Europe-wide since doing good for the individual member state meant doing good for the whole of Europe. Bringing Europe closer together means not forgotten that European peace must be built ever stronger, forever, never taken for granted, and that peace and friendship should be constantly worked toward and striven for. Ken Mifsud Bonnici explains that cementing peace in Europe and thereby bringing countries together in closer union ‘is the deepest, most meaningful, most historic aspirational commitment the peoples of Europe ever made to each other. It ended 10,000 years of war and created 70 years of total peace. It is the most solemn promise and a forever obligation. However, it's an aspirational and historic promise. It has no other relevance today. It's not legally enforced. It has been interpreted by the court many times as a peace commitment, that interpretation is settled.’ Of concern though is does this in any way influence a member states sovereignty. The answer to this is that cementing peace in Europe is a symbolic rather than instrumental practice. While being at the back of the minds of legislators at an EU level, it has never been used as a pretext – to use Ken Mifsud Bonnici’s words - to centralise a fig.

Arriving at a stage where European countries could inter-collaborate has not been an easy task. Prior to the signing of the Maastricht Treaty, in the 1980s, the Commission President Jacques Delors took concrete actions to further improve the operations of the Single European Market, through the free movement of goods, services, capital and labour. He came up with 270 measures, that once implemented by the member states, would guarantee people their freedoms; imposing a six-year dead-line in which they had to be reached. Such initiatives paved the way for the Single European Act to become increasingly accepted. Its main policy area was the Single European Market Initiative; and a 1992 deadline was proposed for it to come into force. With it came once again the re-assertion of the free movement of goods, labour, capital and services; and, in further development of this, the removal of national quotas and tariffs. It also set the way for the removal of non-tariff barriers that prevented trade from taking place seamlessly through different product specifications or purchasing agreements through the Single European Market initiative Subsequently, it became possible for the EU to have almost no tariffs with all countries that have trade deals with it. And it has very, very limited tariffs on other countries. In today’s times, when where the EU does have tariffs, they average it out at 1.6%. They are insignificant.

The removal of tariffs has allowed the amalgam of technical barriers to trade and phytosanitary measures. Clustered under the term regulatory convergence. What's that? In simple terms, let's say we are two countries in a post tariff world. We want to trade shoes. But you only accept red shoes and me blue shoes. No tariffs, but still no trade. To trade, we need common rule books. In every sector, we need common standards, be it for washing machines or banks. "Taking back control" is the opposite of free trade. It destroys common rule-books by definition. It takes us back to a red shoes / blue shoes scenario. Free trade needs common rule-books, agreed in common by many countries. This is what the EU single market is about. Moreover, because the EU is so big, the biggest economy in the world, when we adopt a rulebook, half the world, from Brazil to Australia, copy us because that's how they can access global trade. We are global rule setters. Inside, the EU, the UK creates the rulebooks for the world in its image. Outside the EU, the UK needs to keep and align with them anyway if it wants to trade, but it has no say over them. It ends up having to take rules it has no say over to be able to trade in every sector. With the rise of the Single European Market, the number of lobby groups in Brussels skyrocketed.

At around the same time that the Single European Market was set up, there came about the introduction of single majority voting, which increased the status of the European Commission; since individual member states were no longer able to veto its legislative proposals single-handedly. There was also the introduction of a cooperative procedure through which the European Parliament could play a role in amending legislation. When the Maastricht Treaty was being signed, between 1989 and 1991, the fall of communism was seen. In December 1991, the old Soviet Union ceased to exist. With these changes came certain insecurities associated with a fear that these countries would revert to autocratic forms of government. It was as a result of the signing of the Maastricht Treaty, that the European Union was given its name. Apart from establishing its pillar structure which stayed in place until the Lisbon Treaty came into force in 2009, the treaty also greatly expanded the competences of the EEC/EU, and has been pointed out previously in these pages, led to the creation of the single European currency, the Euro.  In a nutshell, the Maastricht Treaty allowed the EU to implement four primary measures; namely placing employment and citizens’ rights at the heart of the union; allowing Europeans to move freely and live in a secure environment; giving Europe a message and a voice in the world; and providing effective institutions for an enlarged EU.

Of historical interest is that Britain joined the EU in 1973, which as we have seen was a period in which Europe could do little to further its own progress. Some books refer to this period as a Euro-sclerosis. Alongside Britain, Ireland and Denmark joined the EU. The UK joined under Edward Heath who was concerned that Great Britain would have much to lose if it remained out of the EU; but certain factors were not considered by the British. For instance, the EC spent a lot on agriculture, but since farming was not such a large industry (relatively speaking) in the UK, this translated into the UK become a large net contributor to the EEC. Margaret Thatcher came to office as UK Prime Minister in 1979 and stayed on until 1990. While she firmly believed that a more unified Europe could offer Britain a by far larger market than Britain could have on its own; and her neoliberal policies that led her to lead an intensive privatisation plan and cuts on welfare spending implied that the UK budget was kept under tight monetary control; she has been described as Eurosceptic as she was critical of the EU being too bureaucratic and costly. However, she was clearly not Eurosceptic enough not to appreciate the benefits of the free market for Britain. Sir Ivan Rogers explains that Britain trying to be in and out of the EU at the same time has not helped matters. He says that ‘being just outside the EU outer perimeter fence – even if that is where we choose to be (which I rather doubt) – is not AT ALL the same as living just inside it. Which, as I have said before, is where David Cameron sought to entrench the U.K. – outside political, monetary, banking, fiscal Union, outside Schengen, and with a pick and choose approach to what used to be the third pillar of justice and home affairs. His was the last attempt to amplify and entrench British exceptionalism WITHIN the EU legal order’.

The Treaties of Amsterdam, Nice and Lisbon.

The Treaty of Amsterdam which was signed in 1997 also set out to simplify the Community Treaties, deleting more than 56 obsolete articles. The most pressing concerns of ordinary Europeans, such as their legal and personal security, immigration, and fraud prevention, were dealt with. In particular, the EU became responsible for legislating on immigration, civil law or civil procedure, in so far as this is necessary for the free movement of persons within the EU. At the same time, intergovernmental co-operation was intensified in the police and criminal justice field so that Member States should be able to coordinate their activities more effectively. With the Treaty of Amsterdam, the Schengen Agreements were incorporated into the legal system of the EU (Ireland and the United Kingdom remained outside the Schengen agreement, see Common Travel Area for details).  

Staab (2011) explains that the Treaty also lays down new principles and responsibilities in the field of the common foreign and security policy, with the emphasis on projecting the EU's values to the outside world, protecting its interests, and reforming its modes of action.  The treaty introduced a High Representative for EU Foreign Policy who, together with the Presidents of the Council and the European Commission, puts a "name and a face" on EU policy to the outside world. It broadened the use of the co-decision procedure in which the EP had a veto power on all legislative proposals. The President of the Commission will also have to earn the personal trust of Parliament, which will give him the authority to lay down the Commission's policy guidelines and play an active part in choosing the Members of the Commission by deciding on their appointment by common accord with the national governments. These provisions make the Commission more politically accountable, particularly vis-à-vis the European Parliament.

The Treaty of Nice was aimed at preparing the EU for further enlargement to 27 members (at the time). It also limited the size of the EP to 732 members; commissioners to a total of 27; and introduced new voting formula for Council of Minister; (intergovernmental forum). In the Treaty of Nice, the Council of Ministers, with a majority constituted of 4/5 of its members, and with the approval of the European Parliament, could now declare that a clear danger existed of a member-state committing a serious breach of fundamental rights or freedoms on which the Union was founded (As a historical point, prior to the summit of Nice, a group of constitutional experts had drafted the Charter on Fundamental Rights; which sets out the civil, economic, political and social rights of EU citizens under six headings: dignity, freedom, equality, solidarity, citizens’ rights and justice. The UK under Tony Blair refused to permit the Charter to be enforceable under EU law or to allow the ECJ to base its rulings on it. This possibly worked out to promote the idea that the EU was primarily an economic union with only secondary interest in political and social rights).

With the Treaty of Lisbon, it was decided that 55% of the member states representing 65% of the population could approve legislative proposals that emanate from the Commission. Only defence and taxation needed the approval of all member states. An office of the President of the European Council was set up to host and chair the get togethers of heads of government. The post is mainly administrative.  Instead of the High Representative for Common and Security Policy, the High Representative of the Union for Foreign Affairs and Security Policy was set up and thereby had a more pronounced external dimension; including foreign affairs, trade, agriculture and environment. The EP now became an equal partner to the Council of Ministers when approving legislation under the so-called normal ordinary legislative procedure giving it the right to veto and amend legislation. The EP would need to approve the budget. Of significance was that the categorisation into three pillars introduced by the Maastricht Treaty became disbanded. The European integration project was simply the European Union. Should 1/3 of national parliaments raise concerns, the proposals would be re-evaluated by the Commission. If national parliaments as a majority oppose it, and national parliaments or the European Parliament also disagree, the proposal would be struck down. Every national parliament was to receive proposals for new EU legislation directly from the Commission, this giving the process greater transparency. Lisbon also saw the integration of a legally binding Charter of Fundamental Rights which gives the ECJ the power to judge on human rights cases and overrule national courts. This charter is not available to Poland and the UK due to opt-outs.  Ireland, Denmark and the UK also secured opt-outs for asylum, visa and immigration. It is like Britain is ignoring one essential fact in insisting on such opt-outs, namely that it is isolating itself. As Sir Ivan Rogers explains ‘the solidarity of the club members will ALWAYS be with each other, not with you. We have seen that over the backstop issue over the last 18 months. The 26 supported Dublin, not London. They still do. Nothing the Prime Minister bids for will change that’.

Conclusion.

If we observe, Britain has relied intensively on opt-outs. If we are to take the Schengen Area as a case in point, this operates very much like a single state for international travel purposes with external border controls for travellers entering and exiting the area, and common visas, but with no internal border controls. It is likely that Britain wanted to retain a certain degree of control on its borders. It could do that. Nobody stopped it. However, it also possibly promoted in people’s manner of thinking that there is Britain and there is the EU. Britain does things one way. The EU does them another. It is likely that this dichotomous way of thinking has fed into the existing confusion between free movement of people and external migration, which has featured so prominently in many a discussion about Brexit. However, as Sir Ivan Rogers explains, the EU crisis is about external migration. And from an EU perspective, ‘the British response to that crisis from both the last 2 Prime Ministers – has essentially been: we have an opt-out from that one. What you 27 do via common policies is up to you. We’ll help with aid in the affected regions.’

However, what Britain is not appreciating is that, as Sir Ivan Rogers points out, Britain out of the EU is a third country. The Prime Minister has never been in a room negotiating with the 27. That’s not how the exit game or the trade negotiation worked. Added to this is that Britain is internally split, even though, this may not be immediately apparent to the naked idea. As Ken Mifsud Bonnici says: ‘The UK is not a federation because your English and UK parliament/ government are fused, one and the same. If split, so you had 4 state parliaments each only competent for their country, and one federal, for federal matters, you'd be a closed federation. Not split, you are a unitary state with devolution. Westminster wears a double hat, as the English and national parliament, England still rules above the others. A federation requires equality of the states.’ Sir Ivan Rogers tells us ‘We need, urgently, on all sides of the spectrum, to start understanding how being a “third country” is different. And the most na?ve of all on this remain the Brexiteers who fantasise about a style of negotiation which is only open to members of the club. We are indeed, a soon-to-be third country and an opponent and rival, not just a partner, now. Again, that is what Brexit advocates argued for. It is time to accept the consequences.’

References:

Mifsud Bonnici Ken (recent) Private Correspondence (I would also like to thank Ken for reading an earlier draft of this article and offering me feedback).

Straab Andreas (2011) The European Union Explained. Indiana University Press (I have used this book extensively in drafting up this article).

https://news.liverpool.ac.uk/2018/12/13/full-speech-sir-ivan-rogers-on-brexit/?fbclid=IwAR1kX8R0pnDYvIa0xxcywPMH07l_m3AVqjReslcXlssHpWjxfoWm-2Rjbnw

Different EU websites for factual data about the EU.