As we await decisions on extensions and general elections, I thought we might step back and consider the question of how the UK might behave during its remaining time as a member state.
In the run-up to the new extension, there was much talk from Leave MPs and activists in Westminster about trying to sabotage the EU. This appears to have contained three distinct elements. The most immediate intention was to make other EU members thick twice about giving an extension in the first place. The second was the implication that should an extension be agreed, then the UK would try to make the entire organisation grind to a halt, while the third was the notion that the government would remember who had forced this on the UK, with a price to be paid in any future talks on a new relationship.
At which point we might usefully consider whether any of this stands up to inspection.
Thorn in my side
A good place to start is the historical record, since the UK is scarcely the first country to have a problematic relationship with the institutions of European integration.
The classic case is that of France in the mid-1960s, during the so-called ‘empty chair crisis’.
This came during the early days of the then European Economic Community (EEC), which was still working through its transitional phase of setting-up policies and practices. One of those related to new rules on the Common Agricultural Policy (CAP), which would have given more power to the European Commission and carried various budgetary implications for member states.
The French President, Charles de Gaulle – already well-understood to have an rather antagonistic relationship to the EEC – was particularly exercised by the shift of powers from states to the European level, and so announced in the summer of 1965 that France would not be attending any further meetings of the EEC’s Council of Ministers until the situation was resolved to his satisfaction.
For the next six months, the EEC was largely hamstrung. On the one hand, there was a degree of sympathy among other states with French demands that there should be a power of veto on critical decisions, but on the other there was a strong desire not to let the momentum of the EEC disappear, either there and then or later with all decisions been held hostage the blocking power of a single state.
The solution took form in early 1966, in the ‘Luxembourg compromise’: a de facto veto on matters of ‘very important national interest’ was agreed by the member states, but not put into the legal text of the treaty. Honourable outcome secured, work started up again: perhaps tellingly, no state sought to use the veto explicitly until the 1980s, even if it did cast a shadow over much of the period, with a more cautious Commission and greater concern for keeping all members onside with new legislation.
What you see you might not get
For a long time, the empty chair crisis remained the archetype of trying to force an issue: the French could claim they got what they wanted; but at the same time the European institutions were able to adapt. Ultimately, it could be presented as a win-win.
But as others tried to mimic de Gaulle’s approach, so the limitations became ever more apparent.
In 1965-6, there were only six member states, and only one – France – that was unambiguously in a critical leadership position: it was not the only large member, but Italy lacked robust government coalitions that could back up any ambition, while West Germany was still particularly conscious of the moral limits to its power so soon after World War Two.
With enlargement, the weight of any one member state necessarily decreases. Add to that the normalisation of German politics, especially post-Cold War, and the range of voices asking to be heard has grown and grown.
Linked to this has been the shift away from unanimous voting to more majoritarian models. This really got underway in the 1980s with the Single European Act, which introduced a qualified majority voting system on single market legislation precisely to get around the blockage of single states on specific pieces of law. Each subsequent treaty reform has extended this model, until now there are very few areas of decision-making where all states have to agree.
Finally, while the French might have benefited from a tacit understanding of their counterparts that a veto might be of use to all, other states that have tried this tactic have found it much harder to frame their concerns as ones that might worthy of support by others.
Consequently, the subsequent instances where being obstructive have been most successful have been those where a member state has held enough power to require movement by others.
One example of this include the Greek threat to veto enlargement to Spain and Portugal in the 1980s in return for an increase in regional development funds, a threat made more credible by the previously highly-eurosceptical nature of the PASOK government.
Similarly, efforts by Margaret Thatcher to secure a reduction in net contributions to the EEC’s budget in the early 1980s were ultimately successful because of the persistence in pursuing the issue (some five years) and because of that same enlargement to Spain and Portugal, which required changes to the budget (an area of unanimity).
By contrast, John Major’s boycotting of Council meetings in 1996 to protest against the imposition of bans on the trade of British beef in the wake of the outbreak of bovine spongiform encephalopathy (BSE) achieved nothing of consequence: British absence from decision-making didn’t leave the rest of the EU stuck and no wider principle of equity or justice was successfully invoked.
I’m out and I’m gone
It’s important to note one key distinction between all these cases and the potential one. In all the previous instances the aim was to work within the system, in order to change it. What the British government seem to be suggesting is action sufficient to induce the EU to eject the UK completely from the system.
In practical terms, the way to do this would be to get the EU to a point where they would refuse to agree another extension of Article 50, i.e. the process of withdrawal. The time limit on this is agreed unanimously by the EU with the UK, so even one state withholding its support would suffice.
Either that could be done through direct lobbying of a state, or by a more general refusal to comply with the treaty obligations that all members are supposed to follow. These include the Article 4 principle of ‘sincere cooperation’ (essentially promising to do what it necessary to meet obligations) and the Article 2 core values (including promoting peace and well-being). While there is no direct route to eject a state under the Article 7 procedure (currently being applied to Hungary), the supposition would be that such an approach would be grounds to make an extension of Article 50 look much more desirable.
But how could such a strategy of construction and sabotage work?
As already suggested above, the indications of the actions that UK might take have focused on points in the EU system where maximum leverage might apply.
Money is a good starting point here, since it remains one of the more sensitive parts of the European Union and one that is understandably close to state’s hearts (and wallets). However, annual budgets only require a qualified majority vote from member states (Article 312), so the UK wouldn’t be able to stop the 2020 budget (currently under discussion).
What does fall under unanimity is the longer-term planning, under the Multiannual Financial Framework (MFF). A new seven-year cycle is due to begin 2021, and the Commission is aiming for preliminary agreement in the first half of next year. Surely here an opportunity for the UK?
Here’s it worth noting that the previous negotiations on MFFs were hardly the stuff of calm and dispassionate debate: every cycle has seen some major disagreement and last-minute wrangling by EU leaders. With that in mind, the treaties note that if a new MFF can’t be put in place, then the EU just keeps on using the old one until the problem is resolved. Not ideal, but also not the game-changer that some in London might imagine.
Another financial option would be non-payment of contributions to the EU budget: while the EU might be able to withhold disbursements back to the UK, as a key contributor that would still result in financial difficulties for the Commission. At the same time, it would be in clear violation of the UK’s obligations under the treaties. Given that the UK has already accepted liability for various amounts of funding under the Withdrawal Agreement, it would just be expected that the EU would add this into the calculations, to be recovered at whatever point the UK sought a new, post-membership relationship.
If finance offers no good routes, then perhaps personnel might be another avenue.
With a new extension, the UK is now obliged to suggest an individual to become part of the Commission. Why not propose someone who might put the cat among the pigeons, such as Nigel Farage?
The clue is in the sentence itself: the UK does not decide on ‘its’ Commissioner, but rather nominates someone, who then has to be approved by the European Parliament. As the treaty notes (Article 245), ‘member states…shall not seek to influence them’: Commissioners are bound to act in the interest of the EU as a whole.
Even if the European Parliament were to agree to a controversial figure, there still remains the option of ‘compulsory retirement’ (Article 247) if the individual ‘no longer fulfils the conditions required’, a power held by the Court of Justice, not member states.
So where does this leave the UK’s plans?
Practically, it is hard to see any action that the UK might take which could force the EU’s hand. There is no evident point of pressure that the British government could exploit to achieve its end.
But much more than this, there is the question of what good might it serve. It is not as if the EU does not already know very well that there are very deep differences of opinion about Brexit within the UK, or that the current British government is very determined to leave as soon as possible. None of that changes the prevailed attitude in other EU capitals that a no-deal outcome is clearly less desirable than an exit with a deal, so if extension is the only way to keep no-deal off the cards, then so be it.
Moreover, sabotage – even if possible – comes with a longer-term price.
Leaving the EU does not mean that the UK will never have a relationship with the organisation afterwards. The two will remain geographically, economically, politically and culturally very close to each other and the unpicking of membership will doubtless uncover areas where cooperation is wanted or needed.
To add a deliberate programme of obstructing and sabotage to the rest of the UK’s actions in negotiations since the 2016 referendum can only make the building of a new, stable relationship (of any kind) more difficult.
The compromising of trust in UK-EU relations has been an increasingly important part of the Brexit process – it explains much of the EU’s determination to enshrine the backstop arrangements in legal text, for example. Regardless of whether sabotage worked, it would mark a further degrading of that process, as the UK moves to an actively obstructive position.
In the end, the thing that might end up most damaged is not the EU, but rather the chances of finding a durable and constructive relationship between it and the UK.