The euro crisis poses dilemmas for Labour too

Cameron's EU pain is a gift to the opposition, but how far is Ed Miliband willing to go to destabili

Ed Miliband challenged David Cameron in parliament today on his negotiating position ahead of Friday's European Council summit. The charge was that the prime minister has promised something to his backbenchers that he cannot deliver - a repatriation of powers from Brussels. It was a line calculated to probe Tory eurosceptics' anguish over their leader's failure to capitalise on the opportunity (as they see it) of the eurozone crisis to bring about the longed for renegotiation of the UK's relationship with Brussels.

That was a fairly easy hit for a leader of the opposition. Why, when the prime minister's biggest political bruise is exposed, would he do anything other than punch it? At the moment, Labour doesn't really need to do much on Europe other than find new ways to exploit coalition pain on the subject. And just to be clear, there is a lot of pain out there. Cameron is in an appalling position. He has to go to Brussels and somehow persuade fellow EU leaders that he wholeheartedly endorses their plans to save the euro with a treaty for much closer integration, while pointing out that his party thinks a treaty for much closer integration is an affront to democracy and human dignity, so could he please have a bunch of concessions on issues unrelated to the euro, otherwise he might have to veto the whole thing. If he fails to pull that off, his backbenchers will feel betrayed. And if he manages to get concessions, they probably won't be big enough and his backbenchers will demand a referendum on the new treaty. They can sabotage it in parliament if they don't get one.

It all adds up to a Christmas hamper of opportunities for Labour. But if, as is quite possible, the situation turns still more critical for the single currency and David Cameron, Ed Miliband will also have to start formulating a position on his preferred outcome. At the moment, Labour's EU policy has been spelled out by shadow foreign secretary Douglas Alexander. He advocates taking a "hard headed view of Britain's interests", which means supporting plans to stabilise the single currency, while making sure single market rules are not skewed against the UK and pushing for reform to boost European trade. The balance of power between Westminster and Brussels is not ideal, Alexander concedes, but now is not the time to fixate on repatriation of powers.

That, as it happens is not so very far removed from the government's official negotiating position. The key difference is that Cameron actually has to deliver it and his raucous party has made it much harder for him (my column in this week's magazine deals with that in more depth). Meanwhile, Ed Balls has taken the lead for Labour in the economic debate around the single currency crisis and struck a slightly more sceptical tone. He has positioned the party firmly against British participation in any EU bailout funds. He also likes to take the credit for helping Gordon Brown keep Britain out of the single currency when Tony Blair wanted to join. Combined, the two positions make for a kind of cautious scepticism-lite - liking British membership of the EU for pragmatic commercial reasons; ready to like it more if the EU were something it is not.

That is a decent enough holding pattern. But it is not clear how it would evolve if Britain's EU relations lurch into a full-scale diplomatic crisis. Would Labour ever support Tory backbench calls for a referendum on a new EU treaty? The natural law of political opportunism dictates that they must denounce whatever deal Cameron does as a failure (which it probably will be), so should the party then join with Tory rebels and try to defeat it in parliament? If eurozone members proceed with their own fiscal consolidation, Britain's relationship with Brussels will, by definition, be changed. Will Labour then support calls for a more substantial renegotiation, including repatriation of powers? And, what it all comes down to in the end: how eurosceptic is Ed Miliband prepared to make Labour in order to make life really difficult for David Cameron and the coalition?

Labour's current position works as a cautious account of Britain's interests under the circumstances. But those circumstances are changing fast.

Rafael Behr is political columnist at the Guardian and former political editor of the New Statesman

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Is TTIP a threat or an opportunity?

TTIP offers potentially huge opportunities to both Europe and the US - we should keep an open mind on what the final agreement will mean.

Barack Obama made it abundantly clear during his visit to the UK that if Britain left the European Union then it would be quite some time before we would be able to negotiate a trade deal with the United States. All the more reason to examine carefully what the Transatlantic Trade and Investment Partnership (TTIP) will mean for the UK. For Labour this is especially important because a number of trade unionists and Party members have expressed concerns about what TTIP could mean.

The economic worth of such a partnership between the European Union and the US has been questioned and it has been frequently stated that TTIP could give multinational companies unprecedented influence and undermine the British NHS.

With regard to the economic benefits of TTIP there are few that would argue that there are no economic gains to be achieved through the partnership. The question is to what extent economic growth will be stimulated. On the positive side the European Commission has argued that an agreement could bring economic gains of between €68 billion to €119 billion per year to the EU (0.3% to 0.5% of GDP) and €50 billion to €95 billion (0.2% to 0.4% of GDP) to the US. For Britain, this means that an agreement could add up to £10 billion annually to the UK economy.

On the negative side, a study commissioned by the European United Left/Nordic Green Left Group in the European Parliament has maintained that TTIP would bring only “limited economic gains”. These gains have to be weighed, it was argued, against the “downside risks”. Those risks have been identified as coming from the alignment of standards in areas such as consumer safety, environmental protection and public health.

These are important concerns and they should not be quickly dismissed. They are made all the more important because the existence of already low tariffs between the EU and the US make the negotiations to reduce non-tariff barriers to trade all the more significant.

There are a number of areas of concern. These include food standards and the regulation of GM crops and the worry that the EU’s focus on applying the environmental precautionary principle might be weakened. The European Commission, which has a responsibility for negotiating TTIP on behalf of the EU, is however acutely aware of these concerns and is mindful of its legal responsibility to uphold, and not to in any way weaken, the agreed legal standards to which the EU adheres. A concern has been expressed that irrespective of what European law may say, TTIP could undermine those standards. This I find difficult to accept because the ‘rule of law’ is absolutely central to the negotiations and the adoption of the final agreement.

But the EU is mindful of this concern and has brought forward measures which have sought to address these fears. The latest proposals from the Commission clearly set out that it is the right of individual governments to take measures to achieve public policy objectives on the level that they deem appropriate. As the Commission’s proposal states, the Agreement shall not affect the right of the parties to regulate within their own territories in order to achieve policy objectives including “the protection of public health, safety, environmental or public morals, social or consumer protection or promotion and protection of cultural diversity”.

Of course, this is not to suggest that there should not be vigilance, but equally I believe it would be wrong to assume the theoretical problems would inevitably become reality.

The main area of concern which has been expressed in Britain about TTIP relates to the NHS and the role of the private sector. Under the Investor-State Dispute Settlement (ISDS) provisions investors would be able to bring proceedings against a foreign government that is party to the treaty. This would be done in tribunals outside the domestic legal system. If a Government is found to be in breach of its treaty obligations the investor who has been harmed could receive monetary compensation or other forms of redress.

The concern is that the ISDS arrangements will undermine the ability of democratically elected governments to act on behalf of their citizens. Some have maintained that measures to open up the NHS to competition could be made irreversible if US companies had to be compensated when there is a change of policy from a future Labour Government.

In response to these concerns the European Commission has proposed an Investor Court System. This would be based on judgements being made by publicly appointed and experienced judges and that cases would only be brought forward if they were precisely defined. Specifically, it is proposed that cases would be limited to targeted discrimination on the basis of gender, race or religion, or nationality, expropriation without compensation or the denial of justice.

Why, you might ask, is there a need at all for a trans-national Investor Court System? The reason in part lies in the parlous state of the judicial systems in some of the relatively recent EU accession countries in Eastern Europe. To be frank, it is sadly the case that there are significant shortcomings in the judiciary of some countries and the rule of law is, in these cases, more apparent than real. It is therefore not unreasonable for investors to have an international framework and structure which will give them confidence to invest. It should also be noted that there is nothing proposed in TTIP which contradicts anything which is already in UK law.

We need to remember too that this is not only about US investment in Europe, it is also about European investment in the US. No US-wide law prohibits discrimination against foreign investors, and international law, such as free trade and investment agreements like TTIP, cannot be invoked in US courts. The Investor Court System would therefore benefit European companies, especially Small and Medium Sized Enterprises. 

It is of course impossible to come to a definitive conclusion about these provisions because the negotiations are ongoing. But it would surely be unwise to assume that the final agreement would inevitably be problematic.

This is especially true regarding the NHS. Last year Unite the Union commissioned Michael Bowsher QC to provide an opinion. His opinion was that “TTIP does pose a threat to a future government wishing to take back control of health services”. The opinion does not express a view on whether TTIP will “force” the privatisation of the health service (as some have claimed) and Bowsher admits that much of the debate is “conducted at a rather speculative level” and he has been unable to produce any tangible evidence to support his contention about future problems. On the other hand, it is the case that there is nothing in the proposed agreement which would alter existing arrangements for compensation. There are of course many legal opinions which underpin the view that existing legal arrangements would continue. While I accept that it is theoretically possible for the Bowsher scenario to occur, it is nevertheless extremely improbable. That is not to say that there ought not to be watertight safeguards in the agreement, but let us not elevate the extremely improbable to the highly likely.

A frequently heard criticism of TTIP is that the negotiations between the US and the EU are being conducted in ‘secret’.  Greenpeace, for example, has strongly sought to make this a central part of their campaign.  Although the Commission publishes EU position papers and negotiating proposals soon after they are tabled, it is impossible to see how complex negotiations of this kind can be practically conducted in public.  However, I believe that the draft agreement should be made public well before the final decisions are taken.

Once the negotiations have been concluded, the draft agreement will be presented to the European Council and the European Parliament, both of which have to agree the text. The European Council is, of course, made up of representatives of the governments of the EU and the European Parliament is democratically elected. Both Houses of the British Parliament will also debate the draft and there will need to be parliamentary approval of the agreement.

Transparency and democratic scrutiny are two things which there cannot be too much of. But, in practical terms, it is difficult to see how there could be more of either without making it nigh on impossible to secure such a complex agreement. Unite, of which I am a member, and others are quite right to express their concerns about TTIP, but let’s not exaggerate the potential difficulties and let’s not assume that the worst case scenario will always come about. TTIP offers potentially huge opportunities to both Europe and the US, and we should therefore at least keep an open mind on what the final agreement will mean.

Wayne David is the Labour MP for Caerphilly and is Shadow Minister for Political Reform and Justice. He is a former Shadow Europe Minister and was a junior minister in the last Labour government.