Can We Renegotiate Our European Union Membership?

Back in the 1990s there were voices from the Conservative end of politics, with a little message, which goes something like this:

Of course, we're not talking about leaving the European Union. All we're talking about is renegotiation. If the other nations do not agree with our modest and reasonable requests then we will be have to look at withdrawal

As I saw noted often at the time, "renegotiate" was a code for "withdrawal"- make demands which force us out of the European Union.

Sometimes Eurosceptics will talk about neverendums, where a country like Denmark or the Irish Republic give tbe "wrong" answer to a referendum and so Brussels makes them vote again until they give the "right" answer.

Let's look at this. The Treaty of Maastricht was signed in February 1992, and in June the people of Denmark narrowly rejected it in a referendum. So, did "Brussels" make them vote again?

In July 1992 the presidency of the European Communities (as it was then) went from the Netherlands to the United Kingdom, so it was up to John Major, then the Conservative Prime Minister, as de facto President of the European Council, to find a solution.

Major had had his own problems during the presidency. In September 1992, he had taken the decision to withdraw from the European Exchange Rate Mechanism (which he had taken us into as Chancellor of the Exchequer in October 1990) as interest rates were hitting 15% briefly (Labour make a song-and-dance routine about this, but firstly membership of the ERM was a policy they fully supported, and secondly they had hit similar levels under the March 1974- May 1979 Labour government).

Yes, the Conservative party's record of ecomomic competence was shattered (unfairly really as it recovered. As I sometimes say, if you want to blame someone for the length of time Labour were in office, blame Ken Clarke, the Minister without Portfolio, as he was such a good Chancellor of the Exchequer that Labour inherited such a strong economy it took them three terms to destroy the economy rather than the usual one or two), but Major was willing to risk personal and political unpopularity for putting the national interests first.

And Major had also found the solution to the Danish question.

The clear message of Black/White* Wednesday [*delete as applicable] was that ERM wasn't for everyone, and so surely the € wouldn't be best for every nation. Maybe for the majority of nations, but not all of them.

So, at Edinburgh in December 1992, the European Council decided that Denmark could negotiate opt-out, in particular, it wouldn't have to replace the krone with the €. Major had already negotiated the UK's opt-outs from the € and the Social Chapter, so why should we be a special case? Why not let other nations do what we had done?

Due to Major, the European Communities had accepted that 99.9% of a loaf is better than no loaf at all. Yes, let the bulk of Maastricht be binding on every member nation, but accept that if you're going to get it through every nation's ratification procedure, then there are parts that other nations have to be allowed to opt out of to get it through. A multi-speed Europe had been born.

It was not a case that Brussels had made Denmark vote again and again until it gave the "right" result. Instead:

The Danish government had signed Maastricht

The Danish people said no in a referendum

The Danish government listened to the people and brought the objections to Edinburgh

Maastricht was not renegotiated- but Denmark was given opt-outs

The Danish people said yes in a referendum- to a slightly different deal

The next example is of the current Prime Minister, David Cameron, who at a European Council meeting in December 2011 (at which the Accession Treaty with Croatia was signed) decided that the United Kingdom would not join the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, and vetoed its introduction as a European Union treaty.

And this was the nub- Cameron wasn't saying the other nations couldn't go ahead with it, just that if they did, then it would have to be as effectively a private treaty outside the EU's competence and jurisdiction, and therefore the EU insitutions such as the European Court of Justice, couldn't be involved in it.

In January 2012, the Czech Republic- the only other country with an Alliance of European Conservatives & Reformists-led government- decided it would not be part of the Treaty, and in March 2012, 25 of the EU's member nations signed the Treaty.

This raises an important issue. Sometimes we hear the more enthusiastic Eurosceptics saying that the EU has become a single country. However, the Major-Cameron approach gives us:

There can be EU treaties which contain opt outs so are not binding in their entirety on all member nations

Nations can make treaties amongst themselves without the EU

And the other important thing is that treaties have to be ratified by all member nations. If you want to look at a "federal superstate" look across the Atlantic to the USA, where amendments to the Constitution can be ratified in the face of opposition from up to 12 state legislatures (and are binding on them, as well as the District of Columbia). The Supreme Court would give short shrift to any plea based on "this amendment cannot apply to us as our state legislature never ratified it."

So, treaties are not simple one-rule-for-everyone affairs. They can, and are, ratified with opt-outs. But this is opting out during the negotiation and ratification process. Surely once a treaty is signed it is a done deal, never to be renegotiated or opted out of.

Is it?

In January 1973 we became a member of the European Communities (the collective name for the European Economic Community, the European Coal & Steel Community, and the European Atomic Energy Community).

Labour returned to power in March 1974, following the previous month's general election, promising to renegotiate the terms of our membership. In March 1975, they did just that, and in June 1975 the people voted in a referendum.

Notice the word referendum again. Notice that it's the countries which hold referendums- and the ones which vote no- who seem to hsve the power during the ratification process to go back and ask for opt-outs. And under the European Union Act 2011 we have joined that select group of countries.

From our own history the answer is yes, we can renegotiate our EU membership.