On 4th March, George Osborne suffered a bruising defeat in negotiations in the Council of the EU about bankers’ bonuses. 26 EU Member States wanted limits on bonuses, Britain did not, and as the dossier was voted under Qualified Majority Voting (QMV), Britain was marginalised, and lost. OK, the financial sector is of special importance to the UK, so perhaps that was a special case we thought at the time.
Yet in the last 24 hours a further case of UK choosing to marginalise itself has come to light. This time Britain is trying to seek an opt out from the General Data Protection Regulation currently being negotiated, and specifically from Article 17 of the Regulation. The Guardian sums up the case here. Article 17 is Viviane Reding’s favourite ‘right to be forgotten’, a grandiose term for granting a power to users to be able to delete all data they have uploaded to social networks.
The idea is a noble one, but trying to make it work could well be a nightmare. But that’s precisely the point of EU negotiations – the negotiations are about making the legislation practical and workable. That is why Grayling’s position looks so strange: he seems to be deliberately marginalising the UK. The Regulation (PDF of the Commission’s draft here) has legal basis Article 16(2) and Article 114(1) of TFEU (Treaty PDF here), meaning that Qualified Majority Voting will apply here too. The UK could simply be outvoted.
As James Wilby pointed out on Twitter, Grayling has only been in post since September – the Ministry of Justice position was hence in large part developed by his predecessor Ken Clarke. But even so I simply cannot understand why Grayling thinks this tactic could possibly work. Trying to strong-arm the EU does not work when QMV is the voting mechanism, and the sort of opt-out Grayling is seeking is very seldom granted and would set a bad precedent. Further, data protection is a Single Market issue, and isn’t the UK still supposed to support the EU’s Single Market? A functioning Single Market means everyone respects the same rules of that market.
Perhaps all of this should be seen in the context of lessening of UK influence in Brussels, a process that started to be documented in this excellent FT piece last month. Put up a straw man, get knocked down or outvoted, UK public opinion takes a further hit, and the government moves closer to UKIP… or is that too cynical?