David Keighley: Cameron’s claim he has banished “ever closer union” is a legal fiction

(This blog was first published on News-watch).

At the heart of David Cameron’s renegotiation claim is something deeply contentious and what many believe to be a bare-faced lie: that he has secured for Britain an unqualified opt-out from the ‘ever closure union’ ratchet clause in the treaties that underpin and drive the EU project.

The BBC – as the UK’s main public service broadcaster – ought to be subjecting the claim to thumb-screw scrutiny, as it does when anyone has the temerity to suggest that immigration might have disadvantages. Early signs are that this is not going to happen – and at least one pivotal feature on the BBC website suggests that it is tamely going to repeat the claim and trumpet it as a ‘Cameron victory’.

The PM’s pitch on this subject sounds highly attractive, if not irresistible; one of the main fears among British voters about the EU has seemingly been legally banished forever, leaving the UK to get on with ploughing its own furrow separate from the federalists across the water.

But there is mounting evidence that this is blatantly untrue. A leading authority on EU affairs says the decisions taken by the EU heads of state last week were not at the level of binding treaty change because it is a fundamental principle of international law – especially so in EU treaties – that governments cannot define what future treaties will be, or commit future governments to decisions at this level. If you doubt this, here is a quote from the arch-federalist lawyer and former Liberal Democrat MEP, Andrew Duff:

‘But there is another argument as to why a formal promise of the European Council to change the treaty in the future – even if put into a Council decision and tabled at the UN – can never be ‘legally-binding and irreversible’. This is because the Lisbon treaty, now in force for six years, has changed the constitutive procedures of the EU by adding in the wild card of the Convention (Article 48(3) TEU). The Convention is made up of the European Council, the Commission, the European Parliament and national parliaments. Its job is to propose amendments of the treaties to an intergovernmental conference. So while the member states can still lay claim to being the ultimate ‘masters of the treaties’, their prerogative is not unqualified: they cannot change the treaty, or even promise to change the treaty, left to their own devices. And it’s the European Parliament, not the European Council which gets to decide on whether to call a Convention.’

David Cameron and his pro-EU lackeys must be aware of arguments like this (they have been circulating the web for months) and so it suggests they may be deliberately projecting an untruth; they are dressing up the low-level, aspirational agreements reached so theatrically on Friday as a cast-iron triumph in the hope that, dashing for a quick-as-possible vote, they can hoodwink voters.

There’s an irony here: the EU is intrinsically fiendishly complex in its rules and its intent, and for those reasons, is fundamentally undemocratic. Cameron – who promised to reform that in his Bloomberg 2013 speech – is now relying on that complexity to ram through his so-called ‘deal’.

Why is the BBC complicit in this?

Exhibit A is a feature on the BBC website which, with the headline ‘What Cameron wanted and what he got’, purports to give a balanced overview of what is now on offer. It states: 

‘This has to go down as a win for Mr Cameron, with the commitment to exempt Britain from "ever closer union" to be written into the treaties.’

So, in other words, accepted at face value in this key article, and without subsequent qualification, is that Cameron has secured an opt-out from the notorious clause, and that future treaties can be manipulated in this way. There’s not a peep that others, including leading jurists, and experts on EU procedures, beg to differ.

Exhibit B was Sunday’s Andrew Marr Show. Marr raised the subject with David Cameron, and suggested that there were those disagreed that the opt-out was binding without actual treaty change. But Cameron flatly contradicted him and there was no further response from Marr.

The BBC has a special duty because of its public service remit and its massive taxpayer-funding to present impartial news, and to get at the truth. Here, at the start of the dash to the referendum, is clear evidence that it is failing in its mission. The newsroom has at least 5,000 journalists and 3,000 further staff in support roles. With those numbers comes massive capacity to investigate, and yet it is seemingly conveying basic untruths that are government spin.

Back in 2004, when the prospect of an EU referendum was looming over the Lisbon Treaty, the then BBC Governors commissioned former Cabinet Secretary Lord Wilson of Dinton to undertake a survey of the Corporation’s EU-related output. In retrospect, it stands as the only genuinely independent survey of the BBC output ever undertaken, and it was only commissioned because former Conservative Minister Lord Ryder of Wensum was appointed stop-gap chairman following the ignominious resignation of Gavyn Davies in the wake of the Hutton inquiry. Lord Ryder persuaded Davies’ permanent successor Lord Grade (also a Eurosceptic) that such an inquiry was essential.

Lord Wilson, when he submitted his report at the beginning of 2005, was coruscating about aspects of the poor quality of the BBC’s EU output, its inherent bias, and especially about the overall lack of level of knowledge at all levels of the Corporation of EU affairs. The report observed (section iv para 16):

‘Journalists are unlikely to be able to explain the issues (of the EU and a possible referendum) clearly unless they understand them themselves. There is much evidence that the public do not get the clear and accurate explanations they need because there is a lack of knowledge of the EU at every stage of the process from the selection of an item to the conduct of the interview.’

The BBC promised in response to devise special training courses to remedy this major defect, but the evidence of dozens of subsequent News-watch reports, in revealing serial and consistent bias in the coverage of EU affairs suggests that this was a totally ineffective exercise.

James Harding, the current Director of News, acknowledged this, in effect, when he appeared before the Commons European Scrutiny Committee last December. Committee members – worried about referendum coverage – had strong reservations that there remained an all-pervading Corporation ignorance about EU matters. In response, Harding promised that before the referendum all newsroom staff would get a further half day’s training.

Has this happened? The BBC has not said. But it appears not to have done, if the reporting of the Cameron deal is anything to go by.

David Keighley

  • Gimme some fightin’ room

    ‘David Cameron and his pro-EU lackeys must be aware of arguments like this (they have been circulating the web for months) and so it suggests they may be deliberately projecting an untruth; they are dressing up the low-level, aspirational agreements reached so theatrically on Friday as a cast-iron triumph in the hope that, dashing for a quick-as-possible vote, they can hoodwink voters.’

    As Richard North points out over at EU Referendum …

    ‘… not only does Mr Cameron not have a treaty, with the French president believing that there has been nothing sufficiently substantial as to require a treaty, there is no likelihood of an EU treaty in the foreseeable future, which will give his “deal” any greater credibility. For Mr Cameron to present it as he is doing – a non-treaty that is going nowhere – can only amount to that most heinous of crimes. This is treaty fraud.’

    EU Referendum: treaty fraud

    http://eureferendum.com/blogview.aspx?blogno=85938

  • Colkitto03

    Great peice David! In October 2015 the EU demanded 1.7B euros off the UK. David Cameron stood at a podium and said “We are not going to suddenly get out or cheque book and write a cheque for two billion euros, Its not going to happen” Note the use of words! He intentionally mislead everyone.
    In two payments last summer the amount was quietly paid off in full. The BBC have ignored this story and played along with the PM as it suits thier combined agenda. I had been a Tory all my life but I could not vote for this fraud. David Cameron is an extremely disingenuous man.