The President of the United States came to the UK to tell the British people why he thought it would be good for the UK to remain in the EU. In this address, delivered at a UK in a Changing Europe event at King’s College London, Bernard Jenkin MP set outs why he believes the UK must leave.
I will explain why leaving the EU would be good for the UK, but first, in response to the President, let us understand why EU membership is becoming so intolerable, and why no American President would ever accept for the United States to be subject to anything like the terms of EU membership which the UK endures today.
The case for leaving the EU
I never thought I would end up saying things like this. I entered politics as a second career – or even as a third career. I first trained to be a professional singer. At university, I was a member of an idealistic cross-party group called the Young European Democrats. I joined Ford Motor Company, where I worked in sales and marketing. I then spent six years in venture capital investment, before being elected an MP in 1992. It was only when I started to read about the EU treaties and how they operate, that I began to have doubts about the direction of what we now call the EU.
There is a danger in this debate in becoming absorbed in too much detail, particularly economic detail: whether we are in our or out of what people call “the Single Market”; or whether economists think the growth rate will be a shade higher, or a shade lower, if the UK is in or out. But this is to lose the meaning of this great question concerning the destiny of our whole nation, in the forecasting margin for error.
You can ask about how we will continue to trade with the rest of the EU after we leave, but there is no question at all that we will continue to trade. The Prime Minister himself told Andrew Marr, in or out of the EU, “Of course the trading will go on”. The economic issues are not unimportant, but the economic case for neither Remain nor Leave is decisive.
The big facts are constitutional and about democracy, accountability and nationhood. When an American President takes office, he swears an oath of allegiance: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The biggest fact of all is about the constitutional direction in which the EU is heading, and intends to keep heading; and so it would be impossible for a British head of state to honour the undertaking which is so central to the office which President Obama holds in the United States.
This EU direction has been established for decades now. The reason the UK turned away from joining at the outset at the Messina conference in 1955, is because it was already going in the wrong direction. We have spent 43 years of membership proving that we cannot change its direction from within. Today, the EU has never been less likely to change, because of what successive governments have signed up to.
From the moment we signed the Treaty of Rome, we subjected our entire Parliamentary and legal system to the supremacy of EU law, albeit in a relatively limited way at the outset, but which amounted to a constitutional ratchet. And as each new treaty was ratified, so new areas of policy, or competences, were acquired by the EU. Even while the treaties were not being changed, the European Court of Justice has continued to operate according to what is known as “the doctrine of the occupied field”. This means, once a power is acquired by the EU, it cannot be returned to the member states or withdrawn. This is the common characteristic of a supreme court in any federal system.
I first joined the House of Commons in 1992, when John Major decided to force through the ratification of the Maastricht Treaty. I made the worst mistake of my career. I read it. While even the Single European Act still largely limited the EU to trade and market matters, Maastricht was the step-change in the legal and constitutional development of the EU, when the Treaties included for the first time reference to home and justice affairs, and to a common foreign and security policy, which would lead to a common defence policy. Above all, we gave up any right to object to the principle that there should be a single European currency, to replace national currencies.
Maastricht was the critical turning point for the EU. It marks the moment when we gave up any effective control over the centralising direction of the EU. We gave the green light to the majority of the other EU states to forge ahead with the formation of the euro, whatever the consequences for our own national interests.
Not only has the euro proved disastrous for most of the Eurozone economies, with tragic levels of unemployment, particularly for the young; not only has it divided our continent between the euro “ins” and “outs”, and between the rich states and the poor; but along with the steady accretion of powers, and the increase in majority voting in the Council of Ministers, it has resulted in a fundamental shift in the balance of power in the EU, so that the 19 Eurozone states now dominate, but most particularly Germany.
And then we ratified the Lisbon Treaty in 2009, which was almost identical to the EU Constitutional Treaty which was rejected by referendum in France and Holland in 2005. This not only further increased areas decided by qualified majority voting, it brought foreign and defence under the jurisdiction of the Court of Justice, along with the EU Charter of Fundamental Rights.
The President should have been warning us. Have no illusions! If you vote remain, you are not voting for any kind of status quo. You are voting for more of the same: to continue on the same trajectory. You are confirming, ratifying, consenting to this continuing centralising trend, which is hard wired into the treaties and institutions of the EU.
The EU’s threat to security
Let me just mention one recent issue which underlines how the EU’s constitutional attrition on the UK’s freedom to decide its own affairs is a threat not just to our security and safety, but to our relationship with the United States also, and this is an issue that should concern President Obama.
The prime minister told the Commons earlier this year that: “People in our country had fundamental rights long before the EU charter of fundamental rights was even thought of, so we do not need these documents in force in Britain.’ This week, the Home Secretary announced that the UK should leave the European Convention on Human Rights, warning that it can “bind the hands of Parliament”, yet still she advocates remaining in the EU. How logical is this?
In 2013, a High Court judge, Mostyn J, in the case of R (on the application of AB) v Secretary of State for the Home Department, commented on how the EU Charter of Fundamental Rights includes rights that go beyond rights protected in the ECHR, and is now legally binding in the UK. In this case, a claimant asylum-seeker wished to assert a right – the protection of personal data – which was not expressly protected by the ECHR and which, as such, did not fall within the Human Rights Act. However, that right was contained in the EU Charter, raising the question whether it could thereby be relied upon in this case.
Commenting on this, Mostyn J said: “It can be seen that the legal basis of the claimant’s claim rests in part on alleged violations of the Charter of Fundamental Rights of the European Union. When I read this in the skeleton argument on his behalf I was surprised, to say the least, as I was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law.”
His comments on the Charter were based on his interpretation of a judgment of the ECJ known as the NS judgment. Referring to this Mostyn J said: “The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.”
The Home Secretary’s position is illogical and constitutionally illiterate. The EU, whose law unlike the ECHR, has direct applicability and direct effect, binds the hands of parliament in a far more comprehensive manner than the ECHR. There is no point in leaving the ECHR and staying in the EU. On this basis, the ECJ has used the Charter of Fundamental Rights to bring surveillance by the UK intelligence services under its remit. In 2014, the ECJ struck down the Data Retention Directive (2006/24/EC), which required telecommunications companies’ to retain traffic data for the purpose of fighting serious crime.
As a result of the ECJ’s decision in the case of Davis, the Divisional Court in London annulled the Data Retention and Investigatory Powers Act 2014 which the Home Secretary had described as ‘crucial to fighting crime, protecting children, and combating terrorism’ (HC Deb 15 July 2014, col. 704). In October 2015, in the Schrems case, the ECJ reiterated its approach to surveillance when it struck down the ‘Safe Harbour’ agreement which regulated data sharing between the US and the EU. This is vital to enable GCHQ to share an electronic intelligence with the US, and vice versa.
Whatever the ECJ decides, it is now clear that it is in control of the powers that the intelligence agencies have to intercept communications. It is also liable to undermine the Five Eyes Alliance on which British security has depended since the Second World War. As President Obama’s Attorney General, Loretta Lynch, has said, ‘it is certainly highly concerning to us that data privacy legislation advancing in the European Parliament might further restrict transatlantic information sharing (Reuters, 9 December 2015)
There is more uncertainty for the UK if we remain in
Nobody can seriously pretend what the government claims: that the UK is now in a so-called “reformed EU”, or that the UK has achieved some so-called “special status”. We remain signed up to the EU Treaties in full. The February Decision, the Brussels deal, has not changed a dot or comma of those treaties. In fact, we gave up yet more control.
In 2011, David Cameron vetoed the proposed Eurozone Treaty on Fiscal Union, because it failed to resolve the relationship between the Eurozone “ins” and the Eurozone “outs”. Nothing has changed since then. But in February, the UK agreed the following text: “Member States whose currency is not the euro shall not impede the implementation of legal acts directly linked to the functioning of the euro area and shall refrain from measures which could jeopardise the attainment of the objectives of economic and monetary union.”
The former Governor of the Bank of England has just published a book: The End of Alchemy, in which he makes three things very clear: that here is a Eurozone crisis which has not been cured or gone away; that the Eurozone will collapse; and that this will be the case unless there is a new country called Europe.
For as long as we remain in the EU of 28, we are but a minority of one. What will be the consequences for the UK if we are still an EU member, subject to all its laws and rulings, and forced to contribute to its budget when the euro does finally collapse? Or how much influence will we have if the Eurozone continues its process of merging, and those 19 countries do indeed form a new country they call Europe? The principle reason that leaving the EU will be good for the UK is that there is much more uncertainty for the UK if we remain in.
I have always believed that immigration is good for our country, enriching our culture and good for our economy, but there are limits to how much we can take and how quickly. We are not in the Schengen border-free area, but the UK is subject to the Maastricht provisions on the free movement of EU citizens. The Treasury’s own document last week based its forecasts on net migration into the UK of another 3 million people by 2030. The Home Secretary just days ago admitted that being subject to the EU principle of free movement makes it much harder to control our borders.
What will happen when Turkey does gain visa free access to the EU for all its 77 million citizens? And Ukraine has been offered the same. How will our NHS cope? Our housing? Our schools? I only mention immigration, because it is the most toxic tell-tale of how today’s EU is so lacking in popular consent, as Labour’s Frank Field has also indicated.
And it brings us to the constitutional and democratic truth, namely that the EU has control of more and more of the laws and policies which in a democracy people feel entitled to decide for themselves. The EU is made up of democracies, but is not itself a democracy. So as this power transfer continues, the EU is removing power from accountable, democratic control, and transferring it to something else, which most people would call a bureaucracy. It is what is known in the jargon as the EU’s “democratic deficit”.
A better alternative
You do not have to accept this. There is no moral, geographical, security or economic imperative which requires it. In fact, the reverse is the case. As the Home Secretary also said this week, the UK is “big enough and strong enough to be a success story in or out of the EU”. However, it is imperative that we leave, or the UK, the fifth largest trading nation in the world and Europe’s leading defence power, continues to lose democratic control, autonomy over its own laws, and influence over its own destiny in the world. That is not in our national interest, or even in the interests of Europe, or the world.
To leave the EU is not to leave Europe. It is merely your right to choose to be engaged with our European partners on a different basis. You do actually know far more about leaving the EU, than about the consequences of remaining. You know that if you vote to leave the EU, the UK will take back control over our own laws, over our own ports of entry, and that the UK will no longer be bound by the principle of free movement.
You know the UK will take back full control over the £350 million per week we contribute to the EU budget. You know that we get back barely half of what we contribute: in rebate, in farm support, in grants to science and universities and so on. So you know – and these are the official figures – that last year, we made a net contribution of just under £10 billion to support our EU competitors.
Since we joined in 1972, the UK has paid a staggering £508 billion into the EU budget. What was spent in the UK, we could spend better. The rest would be better spent at home rather than subsidising your competitors abroad. So you know that what the EU currently spends in the UK on farm support, or science research, or universities, or regional and structural funds, will simply be funded direct, instead of by the EU. Who is advocating anything different? Who in their right mind would use Brexit as a pretext to cut funding for farming, or for science, or for universities, or for infrastructure, when leaving the EU frees up the billions we currently contribute to the other EU countries?
There would also be new opportunities. We will not only regain control over our laws, our borders and our money. This government has started to try to rebuild our diplomatic representation and trade missions around the world, but we are also having to pay for the EU’s fantastically grand network of so-called Embassies for what they call their External Action Service. Outside the EU, we will be out in the world with far more freedom, energy and enthusiasm than ever. Exit from the EU is absolutely not about disengagement and shrinking from the world. Quite the reverse.
The Remain campaign has resorted to a number of stories about how dreadful it will be to leave the EU, for young people, for jobs, for farmers or for scientists – but all based on the most unlikely scenarios – like all farm support would be stopped, or that universities would be starved of cash or teaching staff without the EU. This is all just chaff. Any sensible government will take advantage of the spare money and legal freedoms which come with leaving the EU.
You have to ask yourself: why did the prime minister offer this referendum if the choice is all one way? Wasn’t that a fantastically irresponsible risk to take with the country, if the consequences of leaving were so bad? Of course, these are just campaigning positions and therefore not to be taken seriously.
Most countries in the world are not in the EU, and they are fine. Many non-EU countries trade with the EU, and very successfully. Some 50 countries have free trade agreements with the EU. It is by no means essential for us, but why would the EU not conclude a free trade deal with the UK? Do you really think they will just be spiteful? Few developed countries outside the EU have the economic and unemployment problems which the Eurozone has inflicted inside the EU. The idea that the UK will suffer outside the EU is not substantiated by any facts.
And we should respectfully dismiss President Obama’s advice. He is the President of a state which is so pre-occupied with its sovereignty, that it is the only member of the United Nations that is not party to the UN Charter for the Rights of the Child, and still refuses to join the International Criminal Court. It was foolish of the President to threaten British voters with going to the “back of the queue” when Australia negotiated a free trade deal with the US in less than two years.
In any case, we have no free trade deal with the US today, because we are in the EU, so if we leave the EU, nothing would change. President Obama came to power on the back of the slogan, “yes we can!” How sad that he should come to the UK to say “No you can’t!” No you can’t control your own laws, your own courts, your own parliament. You can’t have your own democracy.
The UK ignored the United States in 1940, when President Roosevelt wanted Churchill to make peace with Mussolini. Should we have accepted their advice then? The UK ignored Ronald Reagan’s initial advice, when his administration tried to persuade Prime Minister Thatcher not to take military action to retake the Falkland Islands. I have listened to so many Americans over the years, insisting that it must be in our interests to join the euro.
They were wrong then. And they are wrong now. Listening to President Obama, it is worth remembering what Churchill often said: “The Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.”
Note: A version of this article was originally posted on bernardjenkin.com. It gives the views of the author, and not the position of BrexitVote, nor of the London School of Economics. Image: Jon Tan.
Bernard Jenkin MP is Chair of the Public Administration and Constitutional Affairs Select Committee (PACAC).