The Independent guide to the UK constitution: Europe - a union too far?

In the final part of our series, we examine the most problematic of all aspects of our unwritten constitution - the evolving EU-UK relationship

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If you look back over the past 40 years, it is hard to think of any political issue or debate that has transcended generations and is still as “live” and important today as it was then.

Unilateral disarmament, the fate of the mining industry, or the stark ideological differences between labour and capital that divided the country in the 1970s and 1980s: all these have come and gone; or, at least, have dwindled into some kind of broad political consensus that reflects changing reality.

But there is one notable exception: Europe, and the vexed question of what exactly we want our relationship with our closest neighbours to be.

This month is the 40th anniversary of the last time the UK held a referendum on our country’s membership of what was then the European Economic Community. David Cameron cites this time gap as a reason for the British people to have another say on the subject. Yet, in fact, it says something different. It says that, at a profound level, we haven’t moved on. A No campaign leaflet from that time offers the risk to jobs and sovereignty as reasons to pull out of the Common Market – in short, not especially different from today.

So how exactly did this troubled relationship come about? How did it evolve? And how much power does it exert over our everyday lives?

The European Union started its life not long after the Second World War as an organisation called the European Coal and Steel Community (ECSC). Ostensibly its aim was to create a common market for French and German coal and steel production under a “joint authority” established by both countries. But steel and coal are weapons of war, and the Treaty of Paris (1951), which gave birth to the ECSC, was actually about binding the French and West German economies together in such a way that war would be, if not impossible, at least much more difficult.

In a way that central tenet has never entirely disappeared from the purpose of the ECSC’s successor bodies. Continental leaders, particularly in France and Germany, see the European Project in quite simple terms: that it is only through consensual politics and ever closer union that you can permanently prevent one power from dominating Europe by force again. We in Britain have never quite seen it that way – but then we were never occupied.

If the Treaty of Paris was the foundation stone of what we now know as the European Union, it was the 1957 Treaty of Rome that gave birth to the European institutions as we know them today. In addition to creating a customs union between its six original signatories (Belgium, France, Luxembourg, Italy, the Netherlands and West Germany), this also resulted in the old “joint authority” of the ECSC becoming an embryonic European Commission, while a small democratic mandate was provided by the Common Assembly that later became the European Parliament.

Britain at this stage was still outside the club – although it was a member of the quite separate Council of Europe (founded in 1950) and was signed up to the European Convention on Human Rights (which came into effect in 1953). It wasn’t until 1961 that the UK, along with Denmark, Ireland and Norway, officially applied to become a member of what was then the European Economic Community (EEC).

But it was not to be. The French President, Charles de Gaulle, concerned that British membership would weaken the French voice within the EEC and that close Anglo-American relations would lead to the United States increasing its influence in Europe, vetoed the move –adding the memorable justification: “L’Angleterre, ce n’est plus grand chose” (“England is not much any more”).

This was how things remained for much of the 1960s until de Gaulle left the scene and Britain resubmitted its application for membership. Negotiations began in 1970 under the Conservative (and pro-European) government of Edward Heath, and Britain officially acceded to the Community in January 1973. Even then, however, our relationship with Europe was a thorny political issue. The Labour Party, in particular, was divided on the issue, and Harold Wilson was forced to include a pledge for an in/out referendum in his 1974 election manifesto.

When his party won power, the referendum – on the question “Do you think the United Kingdom should remain part of the European Community (the Common Market)?” – duly took place. It was the first nationwide plebiscite to be held in the UK during the 20th century. Wilson backed a Yes vote – as did Margaret Thatcher, who was pictured wearing a top featuring the flags of all the European countries on it. The vote was convincingly won by the Yes side, by 67 to 32 per cent.

There was then a period of relative quiet on the European controversy front, lasting for the rest of the 1970s and much of the 1980s – the only exception being 1985, when the Schengen Agreement led to the creation of open borders without passport controls between most member states apart from the UK.

This calm was in large part due to Mrs Thatcher’s success in 1984 in securing a rebate of funds paid by Britain to the EEC to make up for the high proportion of spending that went on the Common Agricultural Policy (which disproportionately benefited France).

But it all flared up again in the early 1990s. This time, the bone of contention was Britain’s ratification of the Maastricht Treaty (1992), which turned the EEC into the European Union. Maastricht effectively set the EU on the path to ever closer political and monetary union and was vociferously opposed by the Conservative right when the Bill to ratify the agreement went through the House of Commons.

John Major negotiated several important opt-outs – including from the single currency and social chapter on workers’ pay, and health and safety – but many in his party could never accept the basic principle of the treaty: that the EU should gradually replace the nation state as the ultimate source of political power in Europe.

These mainly Tory divisions on Europe were to a large extent swept away, along with the party, when Tony Blair won his landslide victory in 1997. Questions about sovereignty were not so much resolved as brushed aside – or, in practical terms, eroded by time. People grew used to the increased impact of the EU on British life – while European considerations became increasingly embedded in, for example, legal precedent. Mr Blair, meanwhile, was determined to put Britain’s relationship with the EU on a better footing – and was also determined to reform the EU itself.

Oddly, given the flavour of much of the current British debate about Europe, it was the UK that was the most enthusiastic proponent of EU enlargement, which led to the accession of the former Eastern Bloc countries in 2004 and 2007.

It pushed for enlargement then because it believed this would dilute the EU’s Franco-German axis, and that countries such as Poland would be more sympathetic to the British perspective. What was not anticipated was the influx of labour which, while welcome in the good times, quickly turned toxic following the financial crisis of 2008.

And so here we are today: with another EU referendum looming and the country still divided over what we want our relationship to be.

When the moment comes, we will probably vote to stay in, just as we did in 1975.

But – as in 1975 – that is very unlikely to be the end of the matter.

Key texts: The UK and Europe

A | From the European Communities Act 1972 (Section 2:1; amended 2008):

“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed and followed accordingly...”

B | From Erskine May’s “Treatise on the Law, Privileges, Proceedings and Usage of Parliament” (24th edition, 2011):

“Accession of the United Kingdom to membership of the European Communities (now the European Union) on 1 January 1973 qualified the exclusive legislative authority of the United Kingdom Parliament … Although the primary obligations created by [section 2 of the European Communities Act 1972] are susceptible of amendment by Parliament, by virtue of the doctrine of the supremacy of Parliament, the courts have on a number of occasions had to consider the relative priority of United Kingdom statute law and law which has effect by virtue of the Treaties and the Act of 1972. It has been decided that European law takes priority over inconsistent United Kingdom law, not because the former supplants the latter, but because European law is part of United Kingdom law.”

C | From  the Human Rights Act (1998), Sections 3 and 6 (1) (referring to the European Convention on Human Rights (1950), which established the European Court of Human Rights in Strasbourg):

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights...

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

D | From Lord Hoffmann’s judgment in R (Simms) v Home Secretary (1999):

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.”

E | From Lord Hope of Craighead’s judgment in  R (Jackson) v Attorney-General (2006):

“Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute… Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”

F | From  the Cabinet Manual (2011):

“The UK is obliged to ensure that its national laws and measures are compliant with EU law... If the UK fails to implement its obligations fully, it is liable to face legal proceedings... brought by the European Commission before the Court of Justice of the European Union.”

G | From the Lisbon Treaty (2007):

“Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives...

The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.”

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