This points a way to new tactics - not new policy
This contains a lot of good sense and positive thinking. The europhiles and the EU itself would scream blue murder as would the manic europhobes like UKIP and it’s hangers-on, seeing someone shooting their fox.
But it's reasonable and - thanks to the Germans - has a wonderful precedent to build on!
Christina
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TELEGRAPH 3.11.09
Conservatives need a new European policy
The Conservative commitment to hold a referendum on the Lisbon Treaty was presaged on its not being in force when the Conservatives entered office. [At last somebody tells the truth! -cs]
By Damian Chalmers, Professor of European Union Law, London School of Economics
If, as looks likely, it is in force at that point, they will need a new European policy. There are currently searching and the whispers are of renegotiation. Certain competences where the EU has no business, notably social policy, should be repatriated, the Tories suggest.
Yet this policy is as vulnerable to external forces as the referendum commitment.
First, it is subject to the whims of all the other national governments as the British Government has a treaty obligation to each one of them.
In this, it is twenty seven times easier to give up a competence to the EU than to get it back. If Tony Blair handed social policy over to the EU within a week of election, even Malta could ask for concessions for its return to the UK. The price for repatriation could be high.
Secondly, it is legally complex and subject, therefore, to the whims of lawyers and judges. A bewildering gamut of EU competencies regulate our industrial relations. These include its citizenship, public procurement, single market and health and safety competencies. The infamous Working Time Directive was thus part of EU health and safety legislation. It will be difficult to opt-out of the lot. Moreover, the price will also go up the more you wish to opt out from.
The policy is difficult to sustain for a more fundamental reason.
Concerns with the EU do not pivot around its social policy. They are more general and are based on the perception that it governs too extensively, too intensively and too insensitively. Cutting out social policy does not change this. Indeed, it undercuts subsequent influence. Other governments will simply point to our already having obtained our pound of flesh in the form of the opt-outs.
There is an alternative European policy which tackles these concerns more directly. Concerns that lay at the heart of opposition to the Lisbon Treaty.
It is to do what the Germans do. In its recent judgment on the Lisbon Treaty, the German Constitutional Court created a ‘constitutional identity’ exception to the authority of the EU. It stated that even where the EU was acting within its extensive competencies, there were certain lines it could not cross. Education, law and order, defence, cultural policy and, above all, social policy were to be predominantly a matter for national law not EU law.
In British terms, this would simply mean amending the European Communities Act so that where the EU passes laws that violate things that mean a lot to us we reserve the right not to apply the law. This might be our idea of self-government where it legislates too extensively. More generally, we might also reserve the right not to apply the law, as the German court suggests, where it destroys something of significant value to this.
This would not require negotiation with the other governments. Nor would it be ‘un-European’. It would be reclaiming something that lies at the best of both European and British traditions, the authority of the law. We obey EU law because there are good reasons for obeying it.
Not simply to follow the crowd.
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