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Dora Kostakopoulou – When Tomorrow Is Yesterday: The Manufacture of an EU Membership Referendum (Part II)

By Professor Dora Kostakopoulou (Warwick Law School, University of Warwick)

WHAT IS A STORY?

W. B. Gallie, who articulated the ‘essentially contested concepts’ thesis in the mid-1950s,[i] published a book entitled Philosophy and Historical Understanding in 1964. In it, he made a plea towards a more historical understanding of theories, concepts and moral judgements.[ii] He correctly pointed out that philosophical enquiries have always had an agonistic character, that is, they have been characterised by an unimpeded questioning and competition among possible explanations.[iii] His basic premise was that public narratives, that is, stories, play a very important role in socio-political life. For this reason, the second chapter of his book was entitled ‘What is a Story?’. There, Gallie raised two rather simple questions which he then proceeded to answer. The first question was ‘what is a story?’, and the second was ‘what does it mean to follow a story?’.

Gallie’s answer to the first question was that ‘every story describes a sequence of actions and experiences of a number of people, real or imaginary.’[iv] And further ‘whether or not the main characters respond successfully to this predicament, their response to it, and the effects of their response upon the other people concerned, brings the story to within sight of its conclusion.’[v] Following a story, on the other hand, requires us to ‘appreciate, without needing to articulate to ourselves, many of the reasons and motives and interests upon which the story’s development up towards its climax depends. It is only when things become complicated and difficult – when in fact it is no longer possible to follow them – that we require an explicit explanation of what the characters are doing and why.’[vi] In other words, Gallie noted that there is a flowing unfoldment of the characters’ actions and reactions and a natural sequence of events, actions and experiences that grip our attention and enable us to understand what is going on and why. As he put it, ‘following a story is a form of understanding’.[vii] I believe that Gallie’s insights are apposite to the discussion about the European Union membership referendum in the United Kingdom.

Several reasons underpin this argument. First, it would be incorrect to view the EU membership referendum as an event. True, both political commentators and academics have treated it as a factum and have proceeded to provide in depth analyses of the UK’s position, arguments for the negotiations that have been conducted and the possible implications of a Brexit for the UK and for the EU respectively.[viii] However, scant attention has been paid to the fact that it is an unfolding story and that neither the Conservative party’s electoral success in the May 2015 general election nor even the Prime Minister’s decision to bring this issue to the fore of his policy agenda in 2008 constitute singular events. The latter form important parts of a story’s sequence of actions and events.

As is the case with all stories, in order to understand ‘what the characters are doing and why’, one cannot but adopt a historical discursive approach. The latter requires not only the identification of the right place for the story to begin, but also an examination of the presumptions, arguments and ideological underpinnings of the actors involved in a political game aimed at achieving two objectives, namely, ‘less Europe in the UK’ or, otherwise put, ‘a much more reduced role for Britain in Europe’ and ‘defending a sense of country’, or national sovereignty.

The story began long time ago, and to be more precise with the Tory Euro-rebellion in the mid-1990s. What we have been witnessing is the unfolding of the story which will reach its conclusion on the 23rd of June 2016. For the purposes of this discussion, I will refrain from guessing its conclusion, that is, the outcome of the prospective referendum. Nor will I discuss the possible implications of a Brexit. Quite intentionally, the discussion, here, is backward looking. I gaze at the past and argue that, if we examine the arguments, political manoeuvres within the Conservative party in the mid-1990s, which were mainly a reaction to the political turn in the European integration process and the entry into force of the Treaty on European Union (1 November 1993), we could easily discern not only continuities between the present and the past, but also that the emergence of the EU membership referendum question in the new millennium necessarily follows. We might also concede, if we are brave enough, that many developments in this story could have been predicted. In fact, the similarities between the present and the past (i.e., what happened two decades ago) are so striking, that one might even be tempted to transcend the division of temporality into present, past and future, thereby bringing everything within the ambit of a single phase.

Reversing the arrow of time will thus enable us to follow the story and, as Gallie observed, the latter is a form of understanding.[ix] Understanding the process of conjuring up an EU referendum in order to respond to intra-party exigencies will, in turn, reveal that it would have been impossible to follow it ‘unless the game had shown a certain amount of continuity – of shape, character and quality – in its development to date.’[x]

 

THE ROOTS OF DISSENT

Baroness Thatcher’s successor, Sir John Major, did not preside over a united Conservative party. The entry into force of the Treaty on European Union (- the so-called Maastricht Treaty) on 1 November 1993 had given rise to anxieties about the future of statehood in an integrated Europe. In late 1994, nine Conservative backbenchers defied Sir Major’s policy on fishing rights in the House of Commons and eight of them were deprived of the party whip in January 1995. Refusing to accept this predicament, the Euro-rebels produced an eight point policy paper which called for the renegotiation of Britain’s relationship with the European Union. In interviews and the media, they argued that further European integration threatened the ‘survival’ of the United Kingdom and that a different relationship with the EU based on free trade and friendship was needed.

Their ideology was distinctly nationalist and intergovernmentalist. The whipless Euro-rebels thus articulated a manifesto which demanded a reduced role for Britain in Europe. In the four page document they produced, they demanded the end of the Common Agricultural and Fisheries policies, the end to the Court of Justice’s activism, a right to ban the export of live animals, an issue that was topical at that time, the UK’s opt out from the European Monetary Union and the Common Foreign and Security policies and the abolition of the directly elected European Parliament. In its place, they suggested an assembly consisting of members of national parliaments nominated by the Member States. They also demanded the curtailment of the EU budget.

Although Sir Teddy Taylor, the most senior of the rebels, was insisting that their manifesto was not a direct challenge to the Government’s policy on Europe, in reality their discourse was procuring a schism in the Conservative Party.[xi] Their ‘mission statement’ to ‘defend a sense of country’ and their calls for the repatriation of decision-making from ‘unaccountable and undemocratic foreign institutions’ were influencing moderate Conservatives and public opinion. In its Editorial, The Guardian criticised those statements: ‘These policies are not Euroscepticism. They are Europhobia. They are anti-Europe in every way. They remove any meaning or substance from membership of the European Union.’ And it continued: ‘An old-fashioned anti-European agenda like this ought not to be serious politics in the 1990s.’…‘The Europhobes have succeeded and are succeeding in dragging the Prime Minister, his party and thus the country even further off base’.[xii]

The Prime Minister could not ignore the Euro-rebels’ discourse. Preparations for the 1996 Intergovernmental Conference, which culminated in the Treaty of Amsterdam (in force on 1 May 1999), had commenced and, in an attempt to appease the Euro-rebels and to foreclose the possibility of a referendum on EU membership, he declared publicly that the UK would not join the single currency and that would not agree to any further extension of qualified majority voting in the Council of Ministers. His Defence Secretary, Sir Rifkind, delivered a speech in Brussels emphasising that the Union is a Union of nation-states, while Sir Major was stating internally that there was no need for a referendum because he would not accept any ‘constitutional changes’ during the negotiations for the amendment of the Treaties. Pro-European members of the Cabinet were marginalised and Lord Douglas Hurd, who had produced a paper on the 1996 IGC and had criticised the Euro-rebels’ manifesto, was eventually forced to retire from the Cabinet in the summer (summer 1995). All this did not prevent Sir James Goldsmith to launch a new party, the Referendum Party. The Party had a single aim, namely, the enactment of a Referendum Bill. Sir Goldsmith stated that as soon as the Bill was passed in Parliament, the members would resign their seat and the party would dissolve itself.

The Euro-rebels and Sir Goldsmith continued to call for an EU membership referendum in subsequent years. The same pressures that Mr John Major encountered in 1995, Mr Cameron encountered a decade later. Unable to appease his Euro-sceptic backbenchers, Mr Cameron entertained the idea of an EU membership referendum. ‘The New Deal for the UK’ he was seeking, resembled the Euro-rebels’ 1995 manifesto. The only major difference was the replacement of the dissatisfaction with the Common Agricultural Policies with the EU Free Movement regime.

In his letter to the President of the European Council (10 November 2015), Mr Donald Tusk, the Prime Minister, Mr Cameron, outlined the British demands for a renegotiated EU membership.[xiii] Free movement rules and the Court’s judicial activism remained key concerns for the Government, in addition to affirming the UK’s opt-out form the Eurozone and enhancing competitiveness. The latter two areas do not pose significant difficulties for the European partners. Flexibility is already existing in the EMU and the proposed voluntary opt-in to a future banking union is unlikely to cause major concerns. However, the re-affirmation of sovereignty on page 3 of the letter and the reduction in the number of EU citizens entering the UK will do so. The UK was also seeking Treaty amendments concerning the reference to ‘an ever closer Union’, an enhanced role for national parliaments which would involve a collective national parliamentary veto of EU legislative proposals, less ‘Europe’ in line with the principle of subsidiarity and the continuation of the UK’s opt-outs from justice and home affair issues. Concerning the free movement of EU citizens (- it is noteworthy that the title used was not ‘internal mobility’, but ‘immigration’), Mr Cameron requested extended transitional arrangements for future participating countries, tackling the alleged abuse of free movement provisions and taming the activism of the Court of Justice in this policy area. The most controversial proposal was the postponement of the application of the principle of non-discrimination on the grounds of nationality as regards the EU citizens’ entitlement to in-work benefits and social housing. In this respect, Mr Cameron suggested a four year residency criterion and envisaged that all these proposals would form the content of an agreement which would eventually morph into a legal binding protocol attached to the Treaties.

 

BRITAIN’S SPECIAL FOLKDANCE

Both the Eurorebels’ manifesto in 1995 and Mr Cameron’s proposals a decade later signal the desired emasculation of state elites and the ‘restoration’ of British sovereignty by loosening the ties with the European Union. This, in effect, implies the questioning of the Community acquis, the dissolution of legal and political obligations undertaken voluntarily several decades ago and the restoration of unanimity in European Union decision-making. In such a discourse there is little appreciation for the institutional layering and the legal and procedural interweaving that have taken place during the European integration process. One discerns quite clearly the worshipping of a rather illusionary notion of state sovereignty.[xiv]

True, the temper of the age facilitates the dissemination of such arguments. The austere economic climate and the ensuing sense of uncertainty leave room for ideological scripts, patriot games and a generalised belief that ‘confrontation politics’ yields results. In addition, while austerity programmes take hold in several European countries and the debate about how to make undisciplined public expenditures more controllable and sustainable continues in a lively way, we notice the rising of intolerance towards Europe’s ethnic residents and citizens, neo-nationalism, populism and Euro-scepticism. This is not something new. Conservative forces have always exploited economic circumstances in order to capture the political imagination and to provide simplistic narratives with a view to attracting votes.

The European Union’s free movement rules are depicted as the problem despite the fact that declining living standards, youth unemployment and shrinking welfare budgets are the product of domestic economic policy choices as well. Anti-Europeanism is vocalized through a patriotic-nationalist discourse which extols ‘national sovereignty’, ‘repatriation of powers from Brussels’ and migration control. Elites find it easier to convince people that national institutions are the best promoters of individual welfare and advancement and the best managers of socio-political contexts. It does not matter if socio-political and economic realities in a globalised era demonstrate that no single institutional actor can accomplish things and find solutions without the manifold input of other institutional actors.

In the 21st century all polities in the Western World are more or less compound republics and this compounding is unlikely to be reversed partly because issues, challenges and problems are transnational in character or in their effects. Compounding also increases respect for the rule of law precisely because ‘the governed’ cannot evade the partial control of institutions above them. It thus reduces ‘dominocracy’, that is, the power of elected majorities and leaves a more circumscribed space for governments ‘behaving badly’.

Leaving, or renegotiating, the European ‘pactum unionis’, to use a Hobbesian term,[xv] would mean a return to a world in which democracy and accountability become again equated with national sovereignty, closure and non-intervention. And this not only forecloses the possibility of further democratisation in practices and institutions but also reduces the possibilities for citizens to hold their leaders to account by utilising norms and rules higher up. Breaking the ‘pactum unionis’ would thus strengthen the authority of the nation-state and the ‘national-statist pactum subjectionis’ as far as citizens and residents are concerned. Affirming the primacy of everything national thus benefits most national executives who would be able to shield their rule from the checks and balances that characterise complex societies and unions of states and peoples.

If we reflect further on the serviceability of the discourse surrounding the EU membership referendum and the political options in view, we could identify more concrete harms on individuals and the society, in general. For both the discourse and the specific issue of EU migration, which features at the heart of the UK’s renegotiation package,[xvi] impact directly on individuals, irrespective of their nationality and residence. They disrupt the bonds of social fellowship generated by working together in society[xvii] and create ‘othering’. Such artificial divisions are exploited by the right wing press in order to arouse irrational fears and prejudice among the population. Boundary lines are drawn and redrawn: workers are distinguished from work-seekers; workers are divided on the basis of their nationality; newly arrived ‘EU migrant workers’ are distinguished from permanent EU residents and so on. Anti-EU migrant agitation is driven by the irrational fear of propelled stereotypes.

Othering is essentially about distancing: keeping ourselves apart from those who we wish to depict as Others. And distancing could be physical, that is, manifested in strict border controls and/or the building of walls separating the ‘ins’ from ‘outs’, or spatial. In the latter case, the space is fractured and boundary lines are drawn. It could also be social and psychological. The latter happens when the Other shares the same space but (s)he is made to feel that (s)he does not belong to it. The Other’s empirical presence is thus denied in law and (s)he is kept apart by policies which pose obstacles to his/her full inclusion.

By seeking to narrow the social bonds and ties, however, the openness of the British society and its cosmopolitan outlook are compromised. Delanty notes that ‘the cosmopolitan moment occurs when context-bound cultures encounter each other and undergo transformation as a result’.[xviii] Individuals are no longer interested in taking part in the wider community of ‘human argument and aspirations’.[xix] Instead, they focus on safeguarding state resources from ‘welfare tourists’. The public discourse becomes defensive. Although the UK’s has failed to provide empirical evidence to substantiate the ‘benefit tourism’ claim despite the Commission’s request, images of EU citizens as welfare seekers are created and manipulated so that the future itself can be manipulated. The Government constructs the narrative, fails to substantiate it empirically and then responds to it by seeking changes in the EU free movement regulations. There are no such things as simple facts; the political discourse involves constructs.

Such constructs can alter common-sense realities and affect societal and community relations. The society becomes disturbed and quietly altered as the narrative unfolds; it becomes more inward looking, restricted and less humane. The ability to share, to work together, to cooperate, to celebrate human creativity and innovation is impaired. The socio-political environment becomes narrow, constraining and immoral since human beings are stereotyped, pronounced to be burdens and problems and are seen with suspicion and contempt. Amidst the reality of negative perceptions and ill-feelings about EU citizens, morality becomes synonymous to ‘stateways’ and ‘folkways’.[xx] Otherwise put, it is framed as the morality of insiders, the members of the in-group, and not of an expanding circle of co-residents and co-citizens sharing the benefits and burdens of the commonwealth they construct with their multifarious activities.

For this reason, EU citizens have become EU migrants in official discourses during the months preceding the referendum. As a consequence, EU citizens residing permanently in the United Kingdom find themselves caught in multiple realities.[xxi] Embedded within the webs of their everyday lives and their socio-political relations, they suddenly realise that the environment redefines their status and role within society by depicting them as guests or as outsiders. The relevant substratum underpinning their status, that is, the rights derived from the EU free movement rules and EU citizenship, is becoming irrelevant in British politics thereby changing their biographical situation. Both their identity and ‘being here’ can no longer be taken for granted since a new post-referendum ‘we’ could, in fact, exclude them. A new system of relevancies might be emerging anchored on British nationality or ‘in-group’ status.

 

THE DE(CON)STRUCTION OF REALITY

Jacques Derrida gave an interview in 1993 to mark the publication of his ‘Spectres de Marx’ which was later published under the title the ‘Deconstruction of Actuality’.[xxii] In it, he highlighted individuals’ ‘duty to think their time’ and coined the term artifactuality. By artifactuality, he meant the artificiality or constructedness of reality. He observed that, if actuality is made, ‘it is important to know what it is made of, but it is even more necessary to recognise that it is made. It is not given, but actively produced; it is sorted, invested and performatively interpreted by a range of hierarchising and selective procedures – factitious or artificial procedures which are always subservient to various powers and interests of which their ‘subjects’ and agents are never sufficiently aware’.[xxiii]

I would argue that, in addition to the artifactuality of the EU membership referendum, we should also be aware of how political elites construct actuality by denying it, that is, by ‘turning away from reality’. Turning away from reality is, essentially, an epistrophe to the world of yesterday. A world in which executive power is relatively untrammelled by anything external and normative, and a world of fear of a loss of identity and societal change. The latter are enduring characteristics of the Conservative ideology and have underpinned the call for a renegotiation of Britain’s relation to the EU since the 1990s.

But it is one thing to harbour a nostalgia about a non-globalised world, sovereign nation-states, distancing from the Union, anti-cosmopolitanism in the sense of separating the polis from the cosmos, and the executive dominocracy of the past and quite another to display an inability to come to terms with complex contemporary realities. As we witness the unfolding story of the EU referendum, I do not feel better, safer, optimistic or more inspired. There is no way of locking others out that does not also lock us in.

The past, the yesterday, has been brought within the present and becomes alive within it. It is simultaneously distant and near; chronologically distant and substantively aligned with the present. This has the effect of foreclosing the future; it promises a future that resembles the past.[xxiv] But when tomorrow becomes yesterday, everything becomes dull and uninspiring.

 

Editor’s note: This is the full paper presented at Durham University on 23 February 2016.  A summary of this paper (Part I) can be accessed here.


[i] This paper was first delivered to the Aristotelian Society on 12 March 1956; ‘Essentially Contested Concepts’, Proceedings of the Aristotelian Society, Vol. 56, (1956), pp. 167-198.

[ii] W.B. Gallie, Philosophy and Historical Understanding (London: Chatto and Windus, 1964).

[iii] Ibid, pp. 153-156.

[iv] Ibid, p. 22.

[v] Ibid, p. 22.

[vi] Ibid, p. 22.

[vii] Ibid, p. 32.

[viii] The House of Commons Library has produced a helpful bibliography of the relevant literature.

[ix] Ibid, p. 32.

[x] Ibid, p. 38.

[xi] Hugo Young, ‘Grey clouds lift to reveal Major’s bleak Euro-vision’, The Guardian, 19 January 1995.

[xii] The Guardian, Editorial, 20 January 1995.

[xiii] The Prime Minister’s letter to the President of the European Council, Mr Donald Tusk, 10 November 2015; https://www.gov.uk/government/publications/eu-reform-pms-letter-to-president-of-the-european-council-donald-tusk, accessed on 18/03/2016.

[xiv] See H. J. Laski, Studies in the Problem of Sovereignty (New Haven: Yale University Press, 1917); N. G. Onuf, ‘Sovereignty: Outline of a Conceptual History’, 16 Alternatives (1991) 425; Neil MacCormick, Questioning Sovereignty (Oxford, Oxford University Press, 2002); ‘Liberalism, Nationalism and the Post-Sovereign State’, Vol. 44(3) Political Studies (1996) pp. 553-567; ‘Beyond the Sovereign State’, 56(1) Modern Law Review (1993) pp. 1-18; Dora Kostakopoulou, ‘Floating Sovereignty: A Pathology or a Necessary Means of State Evolution?’, Vol. 22(1) Oxford Journal of Legal Studies (2002) pp. 135-156.

[xv] Thomas Hobbes, Leviathan.

[xvi] It also featured in the Prime Minister’s letter to the President of the European Council, Mr Donald Tusk, 10 November 2015, note 12 above.

[xvii] Georg Simmel, ‘How is Society possible?’, Vol. 13, No. 3, American Journal of Sociology (1910) pp. 372-391.

[xviii] G. Delanty, Citizenship in a Global Age (Oxford: Oxford University Press, 2000) p. 145.

[xix] It is cited in D. Held, ‘Principles of Cosmopolitan Order’ in Gillian Brock and Harry Brighouse (eds.) The Political Philosophy of Cosmopolitanism (Cambridge: Cambridge University Press, 2005) p. 10.

[xx] E. G. Sumner, Folkways: A Study of Mores, Manners, Customs and Morals (Cosmico Classics, 2007 [1906])).

[xxi] Alfred Schutz used this term in 1945; ‘On Multiple Realities’, V, Philosophy and Phenomenological Research (1945) pp. 533-576.

[xxii] It was subsequently published in Radical Philosophy 68, Autumn 1994 pp. 28-41.

[xxiii] Ibid, p. 28.

[xxiv] Ortega y Gasset wisely noted in the mid-20th century, ‘all extremism inevitably fails because it consists in excluding, in denying all but a single point of the entire vital reality. But the rest of it, not ceasing to be real merely because we deny it, always comes back and back, and imposes itself on us whether we like it or not’; Man and Crisis (London: Allen and Unwin, 1959) p. 152.

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