The latest polls suggest almost two-thirds of Scots would vote to stay in the EU while a small majority of the English might back membership; but then again England might not. David Cameron’s see-saw tactics – emollient one moment, confrontational the next – during his negotiations with his fellow European leaders and a series of unprecedented crises hitting the EU could derail the referendum process, producing a result that nobody wants. Here one of Scotland’s leading EU experts examines the entrails:

It’s tempting to regard the current debate between the UK and the EU as a beefed-up re-make of the 1975 movie – “Do we want to be part of Europe?” – with David Cameron portraying a somewhat more suave version of Harold Wilson. In the original movie Wilson came back with very little, if anything, of substance from his re-negotiations but fairly easily won the subsequent referendum. Similar plot line, same outcome, different actors, but surely the re-made movie will have the same ending?

Or perhaps these renegotiations are better regarded as the latest storyline in that long running soap opera that we affectionately refer to as “the awkward partner”. And, like all soaps, we are silently confident this is a storyline in which common sense ultimately triumphs and “right” prevails over “wrong”.

I think both depictions are wrong, as is the confidence, if not complacency, underlying both. Self evidently the political and popular mood on both sides of the English Channel are profoundly different today compared to 1975. The EU itself is unrecognizable both in its complexity and state of health – or more accurately state of crises– to anything we have seen in the past. The EU in 1975 was generally an uncontested arrangement,.

Today the EU faces a number of major crises – both external and internal – that threaten its coherence, and possibly its very existence, in its present policy and constitutional configuration. And these crises have both served to place centre-stage and test the notions of ‘solidarity’ and collective responsibility that many regard – implicitly if not explicitly – as at the very core of what it means to be a member state within the EU. It has also raised deep-seated questions about what it means to be a citizen (rather than a state) of this European Union.

To many of our partners in recent years successive UK governments have increasingly rejected these notions and failed – either materially or by exercising the leadership befitting a large and prosperous MS – to contribute constructively to resolving the multiple crises that have buffeted the EU: first the Eurozone, then Ukraine, and now the refugee crisis. Instead, the UK Government’s relationship with its EU partners has become explicitly transactional – we will support you only insofar as it benefits us to do so, but don’t expect Britain to incur EU ‘membership’ costs for which no direct benefits flow in return.

This is hardly an auspicious setting in which to be seeking concessions from our partners that appear to elevate Britain’s national self-interest to levels that must appear to other member states, and more worryingly to many British voters, as fundamentally incompatible with membership of the collective endeavour that is the EU. Not least when EU leaders are being obliged to divert attention from ‘objective’ crises to a so-called British membership ‘crisis’ that they regard as no such thing.

Civil society

Today the EU truly is a contested project not only among member states but at the level of the individual citizen and many civil society bodies as well. This is uncharted territory. We have seen the emergence of radical political parties, most dramatically in those countries on the leading edge of the various crises the EU is facing. The so-called radical left has gained ground in the austerity-hit south, and increasingly the radical-right is in the ascendancy in the refugee and Russian-facing countries along Europe’s eastern borders. But even in the settled heartlands of the EU – in France, Holland, Sweden and Germany – we are seeing a shift to the radical extremes in voter preferences.

Forty years ago the UK membership debate was relatively trouble-free. Today it represents a contributing factor to an EU that may fast be approaching an existentialist moment. How does the ‘In’ camp in the UK conduct a civic-based pro-EU campaign when citizens and civic groups across the Union seem to be rebelling against that very organization?

Or are we just witnessing instead yet another episode in the long-running saga of British exceptionalism where, despite all the huffing and puffing from our partners, the UK will end up with a further list of special exemptions from EU Treaty obligations that will placate the majority of public and political opinion until the next time? The “business as usual” scenario. Certainly, this is the outcome David Cameron would seem to be betting on. In my view, while this may still be the most likely outcome, it will not be achieved easily.

In the past, and with the exception of the 1984 budget deal, Britain’s “awkwardness” could be accommodated at little cost to other EU member states or to the fundamental principles – the four freedoms – enshrined in the EU Treaties. Fundamental freedoms including the free movement of persons, I would stress, of which the UK traditionally has been among the most fervent proponents.

The difficulty with this is the nature of the new bargain that David Cameron seems to be determined to secure: both Treaty reforms as well as imposing costs on our partners are implicit in his demands.

These, as set out in Cameron’s letter to Donald Tusk, President of the European Council are grouped under four headings: economic governance, competitiveness, sovereignty and immigration.

Promoting competitiveness and making some move to enhance the role of national parliaments in the EU legislative process (the ‘sovereignty’ question) pose few problems, echoing fairly well established objectives shared by a large number of member states. Moreover, working faster to complete the EU single market and reduce the burden on business of “Brussels’’ red tape are common aims and are achievable without Treaty reform.

And while I find the demand that the UK be exempt from Treaty recitals referring to the “ever closer Union among the peoples of Europe” interesting, nobody really regards this to be problematic. Its real significance rests in the fact that it would necessitate EU Treaty reform.

Home rule

But the other two issues – economic governance and immigration: undoubtedly the core demands and the success in achieving which will largely determine the shape and tone of the forthcoming debate – are considerably more problematic.

On economic governance at first sight there seems little controversial in the UK position. Seeking a statement that the EU has more than one currency simply reflects the reality… while ensuring the integrity of the Single (financial) Market echoes a foundational principle of the EU treaties and one the Commission is legally bound to uphold.

However, then the waters become somewhat muddied. The UK seeks assurances – as well as an appropriate safeguard mechanism – that the regulation of UK financial services will remain under the competence of UK authorities – namely the Bank of England, not the European Central Bank.

Moreover, this provision should be extended to cover all non-Eurozone countries. Just what this means is unclear. Does it imply that in future EU legislative proposals relating to the ‘stability and supervision’ of financial services (and providers) will be subject to a double majority (or conceivably a British veto), such that not only must they command the normal qualified majority of EU Member States, but a (simple) majority of non-Eurozone countries on top before being enacted?

If that is the case, then it implies an extension, possibly to the single financial area legislative arena, of the double majority agreement the UK secured in 2012 whereby a simple majority of non-Eurozone countries can block (non-legislative but binding) proposals by the European Banking Authority that apply to all EU banks if they do not agree with them.

This interpretation certainly would be consistent with some reports on Chancellor George Osborne’s determination to protect the status of the City as the EU’s dominant financial centre against EU legislation that might weaken this position.

If what the UK is seeking under economic governance has yet to be fully spelled out, what is being demanded vis-à-vis immigration is relatively clear – namely withdrawing for up to four years the eligibility of migrant workers to claim in-work benefits. Any move to discriminate against migrant workers in their entitlement to in-work benefit would violate the fundamental principle of non-discrimination that lies at the heart of the EU Treaties. Short of a Treaty reform, for which there is no appetite either in general or with regard to this specific issue, it is very difficult to see how any such concession could be granted – or concessions that are granted by Member States would not subsequently be successfully challenged in the ECJ.

Finally, there is much confusion about how any final agreement might be implemented. I think we can assume that part of any agreement will involve a Treaty revision – even exempting the UK from the “ever closer union” will require this. That, along with any other agreed changes in the Treaty text, most likely would be included in a Protocol to be appended to the Treaty and subject to ratification at a later date. There are two main problems with this approach. First, the European Council cannot guarantee a successful ratification of such a new Protocol and, second, and more worryingly in my view, bundling this ratification into a later and more general Treaty revision process would introduce an entirely new set of risks and, under the standard Article 48 Treaty revision procedures, substantial delays. The risks include the very real possibility that even if the UK Protocol was acceptable to all other national parliaments in a future round of EU Treaty revisions, it nonetheless may fail to be ratified if bundled with a range of other Treaty revisions that were not acceptable to member state parliaments. This is far from an unlikely scenario.

Delusion

The anti-EU lobby in the UK is deluded as to the costs and benefits of alternatives to EU membership in the event of Brexit. This delusion is informed by three errors.

The first is that the EU is obliged to be sympathetic to the UK’s (economic) interests in any Brexit negotiations, and readily will conclude a new deal offering the UK preferential terms of access to the single market. This is what I call the ‘soft exit’ delusion. While the Lisbon Treaty did introduce a new Article 50 setting out the procedure to be adopted in the event a member state seeks to exit the EU, it says nothing about the terms on which any subsequent relationship must be based. It strikes me that many member states might seek to impose a ‘hard exit’ on the UK in that scenario, not least to ensure they do not provide ammunition for Eurosceptics in their own countries. The easier the terms of exit, the more this will feed the anti-EU lobby in other member states.

The second delusion is that there are significant economic opportunities for Britain to exploit outside the EU in the form of new and beneficial international economic deals, including with the EU, that are not available to the UK as an EU member. This is a variant of the sovereignty illusion: securing an increase in constitutional sovereignty is equivalent to increasing the degree of effective sovereignty. One narrative of the “leave” camp is that the UK would reap economic benefits from Brexit. Opponents argue that continued membership of an economically failing EU is holding back UK economic growth and global success. That a UK outside the EU could (indeed would) retain all the economic benefits of access to the single EU market, but would somehow be liberated from its rules and regulations while free to strike its own deals with countries all over the world. Sovereignty – both economic and political – would be restored.

These are, in my view, utterly misinformed propositions. As we know, continued access to the EU single market would only be permitted if the UK adhered to the entire range of EU single market rules, including the four freedoms – as do Norway, Iceland, Lichtenstein and Switzerland. Similarly, the EEA countries participate in a range of EU flanking policies (ie transport, competition, social policy, consumer protection, environment, statistics and company law), and observe EU competition rules, rules for state aid and for government procurement. Were it not to adhere to these rules, and Switzerland is a current case in point, access to the single market would be compromised and British business would suffer.

Sovereignty trap

Brexit to be sure will increase the scope of constitutional sovereignty to be exercised by the UK Parliament, but – if the gains from access to the EU single market are to be protected – can do so only at the expense of reducing the degree of effective sovereignty available to that same parliament.

Moreover, if the UK did proceed to form new international trade deals by exercising this aspect of new-found constitutional sovereignty, then to the extent these diverged from EU external trade relations, new border posts would be required between the UK and the EU single market to ensure that trade deflection was avoided – i.e. imports from outside the EU into the UK on more favourable terms than permitted under EU policy subsequently being re-exported to EU markets from the UK.

The irony, and the delusion, is obvious. Rather than restoring sovereignty as advocates of Brexit insist, it is inevitable this would reduce the sovereignty of the British government over a host of economic and social policy issues.

And the third delusion, and perhaps the most dangerous of all, is that the other EU member states will go to any lengths to prevent Brexit. And that it is this reluctance to lose the UK that gives David Cameron his negotiating leverage, and encourages brinkmanship on the UK part in upping the stakes. I understand from informed sources and from the tenor of remarks by senior EU officials (including Donald Tusk), no such blank cheque exists on which the UK can write its own terms of EU membership. Reportedly, even Cameron’s closest allies – such as the Dutch and Swedish leaders – have been astonished at UK tactics recently.

Conclusion

On one level, it is entirely right and proper that any EU member state, including the UK, seeks through negotiation to maximize the benefits it derives from membership. But a sense of common destiny and collective responsibility (call it ‘solidarity’) remains, despite the crises.

So we can surely criticize successive UK Governments for representing the UK’s national EU interests in exclusively economic terms and, increasingly, to the exclusion of any semblance of solidarity with our partners. Or, an approach that elevates transactionalism and transactional politics above all other ideas and ideals of EU membership. While this is a feature that has been evident from our earliest discussions around EU membership, it has come to dominate Britain’s approach.

The 1972 White Paper preceding UK entry advanced the economic gains of membership as the principal, if not exclusive, reason for joining the EU. Similarly the 1975 referendum process focused almost entirely on reducing the economic costs of membership.

None of the discussions – either immediately before or after membership – adequately reflected the real attraction of EU membership to successive British governments since the early-60s: a vehicle by which the UK might restore some part of its then rapidly declining global influence.

In the years since 1979 successive British Prime Ministers have paid lip service to “putting the UK at the heart of Europe” while all the time overseeing governments whose views have become increasingly marginal to mainstream thinking across continental Europe about the future of the “ever closer Union”. Britain’s strategic contribution to the EU direction of travel has diminished. To many of our partners ‘exceptionalism’ rather than ‘solidarity’ has become the defining narrative of Britain’s EU membership. And, while our partners have tolerated and indeed accommodated this exceptionalism, they have never endorsed the ‘variable geometry’ EU it implies.

Multi-speed Europe

For the UK, on the other hand, a variable geometry EU has been – at least implicitly – virtually a necessary condition for continuing membership. And it is this aspect of membership that David Cameron has now raised to the top of our national interest agenda. His view of Britain’s future in Europe not only requires the acceptance by others of British exceptionalism, it may require, or at least may trigger, a change in the very nature of the EU itself.: an explicit recognition that the EU is a Union of variable geometry.

If that is true then Cameron’s chances of success must be regarded as unlikely; this would raise the extraordinary prospect of the British Prime Minister and, presumably the entire machinery of British government, actively campaigning for Brexit. And those of us who recall the Scottish constitutional debate recognize just what a formidable machine Whitehall can be. Brexit is a complex matter and may also have effects on the healthcare system, if you want to find out more about this then you should check out EHIC Brexit effects, that being said none of these effects are certain until a deal has been done.

I still expect a deal will be done that will avoid this outcome. But it is not a deal that I believe will settle – for anything close to a generation – the question of Britain in Europe. Today Britain is further from the “heart of Europe” as it has ever been. If Cameron gains the concessions he seeks, my view is that the UK will be further marginalized in EU debates and in designing a common EU strategy to the collective challenges we face. That is not the future for Britain-in-Europe that I want to see, but I fear it may be the best option available to us.

Already Cameron’s critics are lining up to attack his renegotiation objectives as lacking in substance, while ‘In’ supporters see nothing here that adds up to a new ‘vision’ either of the EU or Britain’s place within it. Indeed quite the opposite.

As last year’s referendum in Scotland demonstrated, the public tends to respond favourably to a positive, forward-looking narrative when asked to vote on such important matters. That element of the case for continued EU membership is absent both from the letter and the government’s current narrative, and, unless corrected, that may well prove costly to the ‘stay’ campaign.

This is an edited/abridged version of a talk given by Prof Scott to the European Movement in Scotland on December 4 2015

Cartoon by David McAllister