Why I’m a reluctant left-wing Brexiteer

To be lumped-in with the Faragian “Little Englander” stereotype of those who are extremely sceptical about the European Union (and who, admittedly, probably comprise the vast majority of such sceptics) is an extremely uncomfortable position for a socialist to find himself in. The belief that all humans are inherently equal and that accidents of birth should not predestine someone make us fundamentally hostile to nationalist notions of exceptionalism (whether explicit or implicit). We comfort ourselves with the fact that ours was once the prevailing opinion within the political left, championed by heroes like Tony Benn, Michael Foot, and my own particular favourite, Peter Shore (pictured above).

In the coming weeks, I intend to provide a left-wing critique of the European Union. Subsequent blogs will consider the role of the European Court of Justice, in particular, in entrenching a neoliberal ideology into the legal orders of EU Members States; the one-way street of privatisation and marketisation that is driven by the EU; and the EU’s ideological choice to impose harsh austerity measures in response to the Eurozone crisis. All of these, I believe, demonstrate that the EU forces Member States to adhere to conservative ideology.

I have never been a rampant Europhile (as a student, I regarded the Young European Federalists with considerable disdain), and have always looked upon the European Union with a critical eye, believing that significant reform was necessary, but possible. Two parallel processes have led me to conclude that such reform is not possible. The first, is that in becoming more expert in European Union law, as a student and then a lecturer and writer, I have come to conclude that only the wholesale revision of the core principles of the Union could transform the EU from a neoliberal, free-market union to a social union. Second, recent events in Europe have convinced me that no will exists within EU institutions to make such a change and, indeed, the institutional support for neoliberal free-market capitalism has become more trenchant, and more harsh. Both of these I intend to deal with more comprehensively in the coming weeks.

In essence, there are two orders of complaint about the path that the European Union has taken.

The first order complaint is fairly ideologically neutral: that the European Union deprives the citizens of Member States of any direct say over matters that would usually be the subject of political discourse and division. Invariably, the main proponents of this argument appear to be drawn from the right. Complaints about the surrender of sovereignty can frequently be heard from the Conservative benches of the House of Commons, but seldom heard from the Labour benches.

The second order complaint is distinctly partisan, and from a left-wing perspective more worrisome: that having been deprived of any direct say over matters that would usually be the subject of political discourse and division, we have had imposed upon us a free-market ideology from which we are not at liberty to depart.

Though the preference for free-market ideology has been evident, in particular in judgements of the ECJ, since the early days of the EEC, the abandonment of the façade of ideological neutrality came during the 1980s. During this period we saw the entrenchment of a consensus that arose in the 1980s, when almost every Minister in the Council was drawn from the centre right. This consensus led to both the Single European Act and the Treaty of Maastricht. Unlike in domestic politics, that ideological choice cannot be undone by a majority, even a relatively sizable one. A similar uniformity of ideology as was evident in the 1980s would be necessary before a reversal of this ideological choice became possible, let alone likely. Such uniformity becomes less and less likely as more and more states are represented at the Council.

It is surprising, therefore, that so many on the Conservative benches are so antagonistic towards the European Union, relative to those on the Labour benches. If Conservatives don’t like that their political autonomy over the ideological direction of the country has been stripped away, they can at least console themselves with the fact that the levers of power of which they have been deprived are nonetheless being pulled in a manner that is, for the most part, to their pleasing. For example, John Major’s government actually quite liked the EU’s deficit-limitation rules because they represented the entrenchment of “good conservative values”. Arguably, John Major is the most successful Conservative Prime Minister in British history because he succeeded in entrenching conservative ideology in the British Constitution in a manner that no other politician in the history of the Kingdom had ever achieved.

By contrast, the more elitist elements of the left are quite at peace with not pulling the levers of power themselves provided that they are being pulled in a manner of their pleasing (the internationalisation of human rights is a good example thereof). But in EU Member States control over the levers of power has been surrendered and that power is being exercised in a decidedly right-wing manner. It is astonishing, therefore, that the Labour Party should be the strident defenders of the European Union, while it is the Conservatives who are amongst its harshest critics. The Labour Party has convinced itself that the European Union can be a vehicle for left-wing ideology when sixty years of evidence has shown that the opposite is, in fact, the case.

So my objection to the EU is not rooted in some intrinsic objection to the internationalisation of exercise of political power. My objection is that the internationalisation of that political power has been to entrench a conservative ideology to which I am fundamentally opposed, and to prohibit the governments of Member States from acting in any manner that departs from that ideology.

British Eggs for British Hospitals: Creagh Falls Fowl of Community Law

Anyone who’s ever taught in a law school will be able to attest to how taxing it is upon your imagination to come up with problem scenarios for your seminars. It’s difficult, sometimes, coming up with scenarios that are so obviously in breach of the European Community treaties that even freshman undergraduate students can spot it.

Thanks, therefore, to Mary Creagh for providing me with just such a scenario for my classes this year! Yesterday, Labour’s Shadow Environment Secretary proposed (and I shall ignore the fairly obvious devolution issues here) that British Schools and hospitals should be encouraged by Government to ‘Buy British’:

‘kitchens in schools and hospitals could be encouraged to buy British – something the RSPCA and other animal welfare groups have been calling for. […] she said what could be done was to insist on food produced to British welfare standards.’

Obviously, such a campaign would be illegal. In Case 249/81 Commission v Ireland [1982]] the Government of Ireland orchestrated a ‘Buy Irish’ campaign. It did so using similar methods to that which Creagh is proposing (‘encouragement’ rather than compulsion) and through a body that, though the court found to be largely backed by the Government, was far more removed from Government than a Health Board or a local authority. The court held that

‘it is not possible to overlook the fact that [those activities] form part of a government programme which is designed to achieve the substitution of domestic products for imported products and is liable to affect the volume of trade between Member States.’

Creagh does, at least, appear to be aware that the Commission might have a bit of a problem with such a policy, and therefore proposes that insisting upon higher animal welfare standards might be the trick Britain could use to get around it. Alas, however, Creagh has neglected again neglected a fairly obvious principle of Community law – the principle of mutual recognition. Case 120/78 Cassis de Dijon [1979], essential reading for any undergraduate law student, held that imposing higher standards that had the effect of restricting the availability of imported goods – whether actually discriminatory or not – was a breach of Community law. In effect, the only effective standard within the EU is the lowest one. This is ultimately why the UK has higher standards for the storage and treatment of animals within the United Kingdom, but cannot prohibit the sale of products from Member States with lower standards.

Creagh complains, with some justification, that other Member States are better at ensuring that their own products are served in their schools canteens. Aside from the fairly obvious answer to that complaint – that those states’ lower welfare standards make their products the cheaper option – the French, in particular, have been very good at enacting measures that surreptitiously favour domestic products over imports. Often times they’re caught out [see Case 216/84 (powdered milk) or Case 168/78 (grain spirits)], but on every occasion in which they are – they’re never so stupid as to openly admit that the true intention of their policy is to favour French products.

So if Creagh really wants to make British products as attractive to schools and hospitals as imported ones, she really only has two options: that a Labour Government would propose in the European Council to raise animal welfare standards across the European Union; or else to lower Britain’s standards to that of our Common Market competitors. Or if she does want to go down the French route, she’s going to have to learn to be more subtle about it – because if it’s the sort of dinger of a breach of Community Law that undergraduate students could spot it, you can guarantee the Commission would as well.