Marina Wheeler QC: The case for Brexit

Despite an emotional attachment to the EU, Marina Wheeler QC tells Matthew Rogers that the current centralised model is not right for the 21st century

The official campaign groups for the EU referendum on 23 June have been confirmed. Britain Stronger in Europe (BSE) and Vote Leave will try to persuade Britons whether a UK future is better served inside or outside of the Union. Inspired by intelligible analysis, influenced by past experience, or intimidated by the alternative, voters will head to the polls wary of or hoping for a Brexit.

From an objective point of view, Marina Wheeler QC would seem an unlikely Brexiter. Born in Berlin and educated at the European School of Brussels, she was immersed in two of the leading EU institutions from an early age. After earning pupillage and attaining a master's degree in EU law, Wheeler, daughter of the late BBC journalist Sir Charles Wheeler, spent four years practising at European law firm Stanbrook & Hooper. On her return to the UK in the mid-90s, a successful career blossomed as a human rights and public law barrister, culminating in her appointment to Queen's Counsel in February 2016.

The recently appointed silk has been the subject of press scrutiny of late, due to her husband - Boris Johnson - backing the Vote Leave campaign. The media has since taken different approaches in how it reported on Wheeler. While The Brief newsletter from The Times once called her 'Mrs BoJo', The Independent has referred to her as 'The brains behind Boris Johnson'. As a result, one might imagine that Wheeler would be reluctant to give interviews on Brexit, yet here she sits, in a spacious side room at One Crown Office Row's chambers in London, where she now practises, explaining her disenchantment with the UK-EU relationship had been growing for some time.

'I was very conscious that with each successive treaty - Maastricht, Amsterdam, Lisbon - new areas of competence were being handed to the EU - employment, consumer protection, justice, and security - and greater power given to its institutions, by, for example, the extension of qualified majority voting,' she says. 'Yet this enthusiasm didn't seem to be shared by the people: turn-out in European elections was always low and when the citizens of Europe were asked their opinion, they often expressed their dissent.'

As we entered the new millennium, a European Constitution was proposed that would see deeper integration from member states in return for a brighter EU. When French and Dutch voters rejected the new arrangement in 2005, plans were shelved. The objectives of the proposed constitution were, however, to lie in the Lisbon Treaty - given legal effect in December 2009 - in a bid to make the EU 'more democratic, more transparent, and more efficient'.

Prime Minister Gordon Brown's decision to ratify the treaty in 2007 without holding a UK referendum was roundly criticised by then opposition leader David Cameron, who was forced to renege on his push for a public vote. Cameron did, however, vow to renegotiate Britain's relationship with the EU should his party ever win the general election.

In 2013, the new prime minister set out his vision for EU reform. Cameron called for greater competitiveness in the single market, increased flexibility for member states, democratic accountability with a more significant role for national parliaments, and a fairer Eurozone.

Fulfilling his party's manifesto commitment to renegotiate EU policy and hold a referendum before the end of 2017, the prime minister agreed a settlement with EU council members in February, which has been met with wide-scepticism.

Wheeler believes the agreed mechanism that would protect the UK against 'discrimination' for being outside of the Eurozone was 'purely defensive': 'To me this part of the deal highlights the fact that the Euro project now dominates and drives the EU. It is designed to stop Eurozone members forming voting blocs - caucusing - and taking decisions that would impact on us without our being present, something they should never have considered doing in the first place.'

The barrister is equally critical of an opt-out being secured from the Treaty on the Functioning of the European Union (TFEU) commitment to an 'ever-closer union', arguing that it merely restates the opt-out from joining the Economic and Monetary Union (EMU) obtained in the Maastricht Treaty.

Wheeler adds that it would be a mistake to think the agreement would insulate the UK from further integration. 'The EU/Eurozone is now pursuing an explicitly federal agenda, which we cannot escape,' she explains. 'For example, the Commission's work programme for 2016 commits to developing a new "European pillar of social rights" to complement EMU. These would, I imagine, be proposed as single market measures and we have no opt out from that.'

Closer union

On how the European Court of Justice (CJEU) should take 'ever-closer union' into consideration, Wheeler does not believe the court would change its modus operandi and apply it solely to the UK: 'It would have to be something that applied to all member states; this commitment would have to be removed from the treaty.

'But even if it were,' she continues, 'there are plenty of other mechanisms used by the court to promote integration, override national decisions, and expand the community reach. One way is by insisting on "uniform application of EU law". And we cannot ignore the Charter of Fundamental Rights: the Trojan Horse in our midst and a powerful tool for further centralisation.'

A new 'red card' system, allowing member states to challenge EU policies if 55 per cent of the 28 parliaments vote against a proposal, was also agreed. Wheeler believes this indicates the UK's feeling of 'desperation and impotence'.

'The EU is supposed to operate in accordance with the principle of subsidiarity and only legislate at EU level when the aim cannot be achieved at member state level,' she observes. 'But it does not respect this. It still does too much, not well enough. And in an EU of 28 we are more often outvoted. It is hard to feel confidence in this type of mechanism when, notoriously, the Commission ignored 11 member states, who yielded the yellow card to oppose creation of the European Public Prosecutor's Office. Indeed, the fact that it's thought to be needed rather highlights the problem: we revere parliamentary democracy, yet tolerate the imposition of unwanted laws.'

The fourth key change that Cameron agreed was an 'emergency brake' on migrants' in-work benefits for four years. Also confirmed was an indexing system which would see EU migrants from poorer countries receive less child benefit.

'The fact that we have to go to Brussels and ask permission on this indicates to me how much control we have lost,' says Wheeler. 'Surely the allocation of social benefits - the redistribution of taxpayers' money - is a matter of political choice.'

The silk goes on to describe how she had agreed with the prime minister's previous analysis of the UK's relationship with the EU, but was left disappointed with the February settlement.

'It does not achieve fundamental reform,' she reasons. 'If you look at the agreement altogether, you can't honestly say it begins to tackle the really big issues. It will not achieve what the PM said in his Bloomberg speech in 2013 was essential: a flexible EU that allows for a wide variety of national approaches that is outward looking, competitive, and accessible to its citizens.'

Loss of sovereignty

Wheeler's deconstruction of the settlement encapsulated her main argument for the UK to leave the EU - a loss of sovereignty. 'There are different ways in which our sovereignty has been eroded,' she remarks. 'Of course there is legislation which may not reflect our national priorities or on which we have been outvoted. But my greatest concern at the moment is with the court.

'Once the EU legislates in an area of shared competence, it becomes "occupied territory" and severely restricts the member states' freedom of action. Interpretation of these EU laws is the preserves of the Luxembourg court and, by virtue of principle of the supremacy of EU law, national laws which are considered incompatible with EU law can be set aside.'

Wheeler describes how the continued expansion of the EU, beyond the economic sphere into areas such as national security, was placing greater responsibility on the CJEU, raising concerns over its competence. She stresses that entrusting the court to apply the Charter of Fundamental Rights, which can override national laws, was a 'step too far'.

When introduced in December 2000, the charter, which was to be taken into account by national courts and the CJEU, brought about new civil and social rights, freedoms, and principles to EU citizens. However, it was not legally binding. Eventually given legal force by the Lisbon Treaty, Tony Blair told the House of Commons that he had secured an opt-out via Protocol 30 of the Treaty on the European Union (TEU), following concerns at the risk to UK sovereignty. Future decisions of the CJEU would prove otherwise, however.

In N.S v Secretary of State for the Home Department (C-411/10), an Afghan national claimed asylum in the UK via Greece. NS challenged the UK High Court's decision to deport him by invoking several charter articles. The case ended in Luxembourg, where the CJEU confirmed that Protocol 30 was not intended to be used by national courts as an opt-out.

The willingness of the CJEU to extend the scope of the Charter was also seen in the Digital Rights Ireland cases where the court declared the Data Retention Directive (2006/24/EC) invalid because it exceeded the limits imposed by compliance with the principle of proportionality in the light of charter rights on data protection, freedom of expression, and privacy.

Wheeler believes the government of the day did not intend to sanction a new mechanism that individuals could invoke to strike down national laws: 'It is certainly the case that everyone downplayed its significance. It was said that the charter just reflected existing rights and only operated when a member state was implementing EU law.

'As it has turned out, placing these 50 rights and principles into a codified form and giving them treaty force has allowed them to be used as trump cards. And perhaps predictably, the court has taken a very expansive view of "implementing EU law" to cover discretionary decisions in an area within the scope of EU law, as well as situations where a member state is seeking to derogate from EU law.'

I ask Wheeler about an advisory opinion from December 2014, given by the CJEU, on a draft agreement on the accession of the EU to the European Convention on Human Rights (ECHR). The CJEU concluded the EU could not accede to the convention because of fears it would undermine EU courts' ability to ensure the uniform application of EU-based charter rights. This was despite all 28 member states agreeing that the EU should accede to the ECHR, which was also expressly remedied by the Lisbon treaty.

'That was a very disappointing - even shocking - decision, which rather encapsulates the problem,' argues Wheeler. 'In ruling that the proposed accession by the EU to the ECHR was incompatible with EU law, the court effectively asserted that it - not Strasbourg - should be the top judicial dog in protecting fundamental rights.

'Accession has been an objective of the member states for decades and it is a treaty obligation. But the CJEU wasn't having it. I think this is very alarming. We've got to a point where the supra-national institutions are putting their interests before the good of the people of Europe and above the will of member states.'

The public law expert adds that the court's decision would give the UK government a legitimate basis to go back to the other member states and say 'let's have another look at this'.

'That would be a very significant step in realigning the role of member states and the court, and clawing back some sovereignty in a real important area,' she says. 'It would also save our system of human rights protection from descending into chaos. Of course, as things stand, the government's policy on human rights is clouded in mystery. But it is hard to believe that it would leave the charter intact yet pursue its assault on the convention and Human Rights Act, given the obvious superiority of the convention as a mechanism.'

Fundamental rights

While many have criticised the UK's current relationship with the EU, few have offered an alternative. Wheeler believes the issue of fundamental rights could have been broached in Cameron's settlement and offered further insight into what might have been done differently.

'I agreed wholeheartedly with the PM when he said in 2013 that the EU cried out for reform. I wish we could have achieved that. My preferred approach would have been to work with a group of other member states outside the Eurozone, to develop a looser relationship with the EU - well, within a differently crafted EU, rather than saying the UK wants its own special deal with Europe. I accept this might have taken years rather than months, but it seemed to be a self-imposed deadline.'

Wheeler suggests a 'no' vote, come the June referendum may prompt other member states to follow suit and create an alternative relationship that is focused more on intergovernmental cooperation and consensus rather than supra-national control.

In accepting that other countries may require closer, more social protections, and value a role for the CJEU due to a lack of faith in their own systems, Wheeler reaffirmed the need for the EU to respect different national traditions and choices, and not impose a uniform model. With other countries wanting to join, including Albania, Macedonia, Montenegro, Serbia, and Turkey, the current arrangement could not carry on unaltered, she advises.

Should the UK vote to remain in the EU, Cameron will be given the chance to fulfil his promise that the UK can lead reform of the EU. Wheeler dismisses the claim, however: 'Apparently we pushed for change as hard as we could, but there was no appetite for fundamental reform. We are now required to vote. That is the end of reform efforts for the foreseeable future.'

While Wheeler's vote is firmly in favour of sovereignty, other voters will be more focused on risks to the economy or migration. The government recently sent out its EU referendum leaflet advocating the UK's position in Europe, but concerns remain about undecided voters.

A failure to engage with the electorate is a 'real problem' admits Wheeler, who was expecting more from the debate. However, for those still toing and froing, she has the following advice: 'When it comes to voting, I think people need to try to approach the question with as open a mind as possible. Many professional, liberal people, view "leave" as an anti-European position, which I don't think is true. Lots of us have an emotional attachment to the EU - it has achieved great things. It helped to heal the wounds of the Second World War and embraced countries from the former Soviet Bloc.

'We have learnt to cooperate and recognise common values. But the world has moved on and we face different challenges. I don't believe the current centralising model - apparently so resistant to change - is right for the 21st century, and now risks doing more harm than good. Not everyone will agree. But those that do need the courage to act on that conviction.'

Matthew Rogers is an editorial assistant at Solicitors Journal @sportslawmatt matthew.rogers@solicitorsjournal.co.uk