Long read: The EU is losing its way – it needs a new constitution

A notable irony surrounding Britain’s departure from the European Union has been the heightened, almost obsessive, interest shown by Leavers in Europe’s business now that we have left.

Most, it is fair to say, are looking for little more than confirmation that they made the right choice. It would obviously be galling if Europe’s star were to burn brighter in our absence. But there are also those who insist that the whole rotten edifice is about to collapse in on itself, ending up like a white dwarf, a stellar remnant that emits only the faintest of light in a sea of darkness.

To the more extreme brand of Brexiteer, the vaccines crisis was proof, if proof were needed, that the European Project is about to hit the buffers. It will be no more. It will cease to be. Bereft of life, it will rest in pieces. It will kick the bucket, shuffle off its mortal coil, run down the curtain and join the choir invisible.

It could happen. No one can be sure what the future brings. But for now, the EU, though racked with Covid, is very much with us, still functioning, still a baleful presence in the life of the newly re-emerged United Kingdom. A mere 21 miles from Dover, it is the elephant in the room during any discussion about sovereignty and Global Britain.

The question we should be asking ourselves is not, when will the EU face up to reality and book its appointment with Dignitas, but rather, what sort of a European Union can we expect to see in the years ahead?

Britain is not alone in pondering the mystery. Across the continent, politicians, lobbyists, businesses and concerned citizens are looking for a shift in the Force. Brexit is part of this. If one of the group’s largest and richest members can walk away without fear of the consequences, there is obviously something amiss. There is unease about the single currency, defence and security, immigration, North-South inequalities, unsavoury regimes to the East and the leadership role perennially assumed by France and Germany.

Debate remains deadlocked between More Europe and Less Europe, with Emmanuel Macron pleading the case for Ever Closer Union while the populist Right and dissident states look to a much looser, trade-based confederation of sovereign states.

If Remain had won the 2016 referendum, it is possible that David Cameron would have felt emboldened to lead a reformist charge. To what extent he would have overcome the institutional stasis of recent years is very much an open question, but he would have received a sympathetic hearing in many of the member states.

Such are the ifs of history. If Britain had joined the European Coal and Steel Community in 1952, when its post-war prestige was still high, and subsequently helped shape the Common Market along free-market lines, history could well have taken a different turn. And if my granddad had wheels, he would be a bicycle. The reality is that Britain left, and by doing so left the cause of reform without an obvious champion.

Yet hope persists. The Covid vaccines scandal, which exposed the sclerotic inner workings of the Commission, has opened an unexpected window into the house of cards. If the window is permitted to admit fresh air and light into the debate, reform could still find its way onto the agenda. If it is pulled shut, the result could be years, even decades, of stagnation.

It was Michael Gove, Britain’s minister for transition, who in the run-up to the referendum made the claim that Westminster and Whitehall had become mere handmaidens of the Brussels machine.

“It is hard,” he said, “to overstate the degree to which the EU is a constraint on ministers’ ability to do the things they were elected to do, or to use their judgment about the right course of action for the people of this country. I have long had concerns about our membership of the EU, but the experience of Government has only deepened my conviction that we need change.

“Every single day, every single minister is told: ‘Yes Minister, I understand, but I’m afraid that’s against EU rules’. I know it. My colleagues in government know it. And the British people ought to know it too: your government is not, ultimately, in control in hundreds of areas that matter.”

At the very least, this was an exaggeration. The treaties certainly touch on a wide range of areas, including foreign policy and defence, but in terms of legal competence, the Commission – working a system devised by the European Council – is directly responsible only for the following: the single market, trade, agriculture, fisheries, environmental protection, the single currency, control of the external border, the free movement of labour and capital and workers’ rights.

This sounds like a lot. And it is. But in almost every other area, from taxation, foreign policy, defence and national security, to civil and criminal law, pensions, social welfare, local government, education, healthcare, the police, prisons, housing, transport, culture and sport, it is left to member states to decide the issues and to make what provisions they may. There is no EU-NHS anymore than there is a European Army. The European Court of Justice has no jurisdiction outside of the treaties. The European Parliament may speak loudly, but, outside of the Commission remit, it carries a very small stick.

The problem is not so much what the EU is, but what it might become. The creation of the single currency and the Eurozone (now with 19 members) has led, inevitably, to calls for full economic and political union – for only then can there be common taxation and mutuality, creating the level playing field that, to the Brussels equivalent of the Deep State, is the project’s raison d’être.

President Macron affects to want progress to be agreed as quickly as possible. Yet anyone who knows French politics knows that, like De Gaulle, Mitterrand and Chirac before him, he would only agree to it on condition that it enshrines ongoing control by Paris and Berlin. For her part, Angela Merkel is wary of any such development, and her successor can be expected to be at least as sceptical. What Berlin wants is a policy of muddling through, in which the euro survives as a result of skilful manipulation and sleight of hand, constrained in a crisis by the Bundesbank and the German Constitutional Court.

Critics of Too Much Europe, shocked by the lamentable response to the Covid pandemic, want no part of a superstate. Neither the Far Left nor the Extreme Right is comfortable with the idea of an unelected government in Brussels that robs them of the power to deliver to their constituencies. Many in the middle agree.

In France, the Rassemblement National (formerly the National Front) has more or less dropped its opposition to the euro, but it regards ceding any more power to Brussels as tantamount to national surrender. Across the Rhine, the Alternative für Deutschland is bent on taking the EU down a peg, so that it becomes a servant of the member states, not their master. Similar demands are being voiced in the Netherlands, Austria, Denmark and Sweden.

Italy, riven with Covid and with its banking system hanging by a thread, remains hopelessly divided on just about everything. It is possible that Mario Draghi, a former head of the European Bank, will knock some sense into the country’s competing factions should he succeed in forming a government. But if he does, he will have to do so as an Italian patriot, not a Brussels surrogate.

To the East, Poland and Hungary have got so used over the last year to ignoring both the Commission and the Council that it is no surprise to see them pivoting east, towards Russia. They have made it abundantly clear that they will not accept Muslim immigrants. Nor will they be told which judges to appoint or which laws they should re-write in order to conform to the Convention on Human Rights. All that they will accept, it seems, is generous handouts from the EU’s hard-won €750 billion rescue and recovery fund. And don’t expect them to be grateful.

From a purely practical standpoint, the best way forward for the 27 at this unique time of trial would be to take up the old idea of a multi-speed Europe, with a slimmed-down Eurozone at its core and the rest at various stages of remove. There are obvious risks with such an approach. How would Greece or Italy fare after the reintroduction of the drachma and the lire? Would the European Bank, heavily reliant on the Bundesbank, be prepared to act in some way as guarantor? And what about Poland and Hungary? Can they be allowed to continue with impunity as rogue states, taking Brussels’s money while regularly giving two fingers to the concept of solidarity? Which side of the divide would Spain be on? Would Denmark and Sweden veer back towards the idea of a Nordic Union? And what about Ireland? Just as Britain remains moored off the coast of mainland Europe, so Ireland is stuck with the UK as its closest neighbour.

In general, it seems fair to speculate that if the EU is unwilling to accept More Europe, then the only alternative – other than muddling through – is Less Europe.

In that event, there would have to be a new European Constitution, overriding and largely annulling the Lisbon Treaty. The resulting document, no more than 20 pages in length, would be designed to boost the efficiency of the Union while reflecting its more limited geopolitical ambitions.

The new treaty would first of all have to establish a smaller, more coherent Eurozone, with its own operational budget and its own highly specialised secretariat, closely tied to the European Central Bank. The obvious candidates would be Germany, France, the Netherlands, Belgium, Luxembourg and Austria, but others would be welcome so long as they agreed to conform to the rules. Those opting to leave would be assisted to reintroduce their national currencies.

The non-Eurozone member states would then make up a larger, outer ring.

The Commission would slim down. There would be no more than 15 Commissioners, whose responsibilities would be restricted to financial services, trade, the single market, competition, climate action, border control, workers’ rights, consumer protection, data regulation, agriculture, fisheries and regional development. The number of fonctionnaires employed would fall by at least 25 per cent.

The European Council would be given the power to place consistently delinquent states on notice. In the event of continued defiance of the rules their rights and benefits would be suspended, subject to appeal to the Court of Justice. Ultimately, they could be expelled. This would be unprecedented and fraught with risk, but then so was Brexit.

Only in relation to the remit of the Commission would the Court of Justice have jurisdiction. There would be no question of its becoming Europe’s Supreme Court.

The European Parliament would continue much as now but would not, as of right, intrude into areas delegated to the Council and member states. The Commission as a whole would meet in Strasbourg during sessions of the Parliament to present its policies and to answer questions.

Foreign policy, defence and matters of European security would be decided exclusively by the Council on a basis of cooperation and would not be binding on the member states. The Council’s High Representative would cease to be a member of the Commission but would have a right of audience at the UN and meetings of the North Atlantic Council. Europol, together with any European intelligence agency that might be established in the future, would report directly to the Council and the member states.

Finally, and crucially, the goal of Ever Closer Union should be formally dropped in favour of ever more voluntary cooperation on matters of mutual concern. Brussels must no longer be endorsed as the putative capital of a European superstate.

All a bit fanciful? Of course. The smart money must still be on muddling through. But the benefits of change would be considerable. One thing is surely beyond doubt: the European Union cannot go on as it is. If it refuses to respond to the wishes of its 450 million citizens, it could be the next empire to fall.