*A* Labour Brexit policy – or *the* Labour Brexit policy? Comments on Jeremy Corbyn’s Brexit policy speech

Professor Steve Peers, University of Essex

Labour party leader Jeremy Corbyn sharply divides public opinion. For my part, I think he’s neither the Messiah nor a very naughty boy – simply a politician who should mainly be judged on the policies he’s advocating today, not by dubious claims (or libellous smears) about what he may have said or done decades ago.

In a speech today, he clarified some aspects of Labour’s Brexit policy, which had previously been rather vague on most points. Leaving aside his domestic policy arguments, and his critique of the government’s confusion on Brexit policy – which was accompanied by the sound of glass houses shattering – he made some key points.

First of all, the tone of his speech was important.  He began by condemning the scapegoating of migrants, setting of generations against each other and playing off the different nations of the UK – laying justified emphasis on preserving the Good Friday Agreement in Northern Ireland. And he ended by inverting the Prime Minister’s infamously narrow view of national identity in the modern world, declaring that “we can only fully achieve what we want to as citizens of Britain by also recognising we are “citizens of the world”.”

As for the content, the most significant point was support for a form of customs union with the EU after Brexit – or more precisely, after the post-Brexit transitional period, where the EU27 and the UK government have agreed that the customs union will continue (see my discussion of the competing proposed texts here). While the UK necessarily will leave the EU’s customs union on Brexit, Corbyn advocated that the UK should “seek to negotiate new comprehensive UK-EU customs union to ensure that there are no tariffs” with the EU, “and to help avoid any need for a hard border in Northern Ireland”. In other words, the UK would be leaving the customs union, but would still have a customs union with the EU.

A customs union means that goods circulate freely between the parties.* It’s linked to having a uniform policy on trade policy towards non-members of the customs union, although the EU/Turkey customs union does allow for separate deals (at the cost, however, of additional checks at the border) and customs unions do not cover services issues.

Corbyn went on to elaborate that the UK would have to have “a say” in future trade deals, not becoming a “passive recipient of rules decided elsewhere by others”. He did not explain further his view on two key issues: what if the EU were not willing to agree such an arrangement? And if it were agreed, what would happen if the EU was keen to negotiate a free trade deal with a certain country, and the UK was not – or vice versa?

On other issues, he said little explicitly about non-tariff barriers, although his anecdote about the process of building a Mini neatly demonstrated the importance of avoiding customs checks for the car industry’s just-in-time production process. He said little about services either, besides disdain for the UK’s financial services industry.

Corbyn did commit to “use funds returned from Brussels” on UK public services after Brexit – right after criticising people for “making up numbers and parading them on the side of a bus”. The problem with this promise is that the bus did not only mislead by misstating the amount of money actually sent to the EU – but also by suggesting there would be any “Brexit dividend” at all.  The government’s own forecasts (which Corbyn later refers to, when it suits him) suggest a reduction in economic growth, which would entail an inevitable downturn in public revenue.

Furthermore, Corbyn’s own plans for maintaining a future relationship would necessarily entail further costs. He expresses support for remaining in at least some EU agencies, bodies and programmes; there would be a contribution required for that. He also supports some form of close link with the broader single market, which implicitly falls short of full participation – given that he rules out the continuation of the free movement of people after the Brexit transition, and has a list of issues where he wants to “negotiate protections, clarifications or exemptions where necessary in relation to privatisation and public service competition directives, state aid and procurement rules and the posted workers directive.”

He briefly mentions continued defence cooperation, but does not refer to internal security issues. Finally, he places repeated emphasis on not lowering labour, environmental, consumer and food safety standards. There’s no specific mention of the EU’s Court of Justice.

Comments

Corbyn described a lot of things he supported about the EU, and also offered a shorter list of things he disliked. Let’s look at the latter first. Ian Dunt has discussed most of the arguments about privatisation et al here – pointing out, for instance, that countries with a bigger state role in the economy, like Scandinavian social democracies, also exist as EU members. As for the posted workers’ Directive, a revision which might address Corbyn’s concerns is well underway: the text of the Council’s position (now being negotiated with the European Parliament) on that revision is here. 

But that is inevitably linked to the things that Corbyn liked about the EU. The key question here is: in legal terms, what exactly (besides a customs union) would the EU/UK relationship look like? Presumably some form of ad hoc relationship to the single market. This sounds a lot like what the government is aiming for, except that the Conservatives are troubled by the thought of making many commitments on issues which Corbyn is keen about (regulation of product standards, labour and environmental law, tax avoidance), and conversely relaxed about the issues that Corbyn would want exemptions from (competition and state aid). But as long as the EU side regards such suggestions as “cherry-picking”, there’s no reason to assume that a red unicorn is any more politically feasible than a blue unicorn.

Now for the most concrete part of the Corbyn speech: the customs union commitment. This might be simply a tactical move designed to make life difficult for the government, since some Conservative MPs also support the idea. But it’s not surprising that politicians play politics.

As for the broader political impact of the move, an interesting article by Duncan Robinson provides evidence that there is not a huge public demand for more free trade deals, especially among Leave voters, and that trade policy was not a major factor in the Leave vote. It’s possible that enthusiasm for free trade deals is even less among Labour Leave voters – leaving Corbyn freer to placate Labour Remain supporters by endorsing a link to the EU on this issue, without irritating Labour Leave voters unduly. Indeed, Corbyn’s speech was critical of the prospects of trade deals with the US and China, from a Labour perspective.

In fact there is also support for Labour’s customs union position from a business perspective – suggesting there is not a vast business demand to exit some form of customs union. The Confederation of British Industry backed the customs union aspects of the Corbyn speech, and the Institute of Directors earlier proposed a more detailed (but probably more limited) form of customs union themselves. Corbyn himself noted that the government’s economic assessments suggest that future free trade deals would only have a modest economic benefit.

What about the counter-arguments against staying in a form of customs union? The “Labour Leave” organisation may well call it a “betrayal” of the Brexit vote, although it’s striking to note that this “Labour” body has received major amounts of funding from Conservatives. Some non-EU countries do have a customs union with the EU, as noted above, and there was no “customs union” box on the referendum ballot paper.

Some call a customs union a “protectionist racket”. But most countries have some form of trade protection against foreign goods; a customs union is merely a mechanism of agreeing such rules by a group of countries collectively. Along the same lines, it’s suggested that a customs union prevents its parties “trading with the world”, but many EU countries (including the UK) have a significant trade with non-EU countries, and the EU has a number of free trade deals in force or under negotiation, as detailed here. As for “starving the poor”, the impact of EU trade policies on developing countries is often exaggerated – given that the EU has a number of free trade deals with and unilateral tariff preferences for developing countries, especially for the very poorest, as discussed here.

Some would prefer to abolish all tariffs, but there’s no mandate from the referendum or the last election for that policy, which would leave the UK with little or no negotiating capital in talks with the EU or anyone else. And since that policy’s chief proponent, Professor Patrick Minford, accepts (indeed advocates) that it would “mostly eliminate manufacturing” in the UK, it’s not surprising that this policy has no appeal to the Labour party.

Time will tell whether today’s speech simply set out a Labour Brexit policy, designed as a short-term tactical shot across the bows of the Conservative party to be developed further later; or the Labour Brexit policy, left deliberately vague on many points to continue to serve as a compromise position designed to appeal to significant numbers of both Leave and Remain supporters. In any event, its political significance is that it creates a clear distinction between the Brexit policies of the two largest parties.  

*clarification added 27 Feb 2018: I'm referring to free circulation of goods within the definition of the EU's customs union set out in Article 29 TFEU. That doesn't mean the same thing as "no border checks"; as the Corbyn speech recognises, a customs union agreement would only "*help* to avoid any need for a hard border in Northern Ireland". 

Barnard & Peers: chapter 27

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The UK General Election and Brexit: Comparing Party Manifestos

Professor Steve Peers

Tomorrow sees another general election in the UK, just two years after the last one. Since this is (according to the Prime Minister) an election on Brexit, it seems appropriate to review the parties’ views on this issue, including future UK/EU relations. I will examine the parties’ views in turn – focussing on larger UK-wide parties plus (due to its political importance) the Scottish National Party. The final section is an overview and comparison.

Conservatives

The Tory manifesto position on Brexit is largely a summary of the position set out in the Brexit White Paper (discussed here), and the planned Great Repeal Bill (discussed here), which would keep EU law as part of ‘UK law’ for the time being. Essentially, the Tories believe that the future UK/EU relationship should be based on a free trade deal without ‘vast’ payments into the EU budget or free movement of persons. Participation in the customs union and internal market would end, and there are some details about the transition to full separate UK participation in the World Trade Organisation. There’s an objective of continuing security cooperation with the EU, but the details are not spelled out.

Some fair settlement of UK accounts would be made upon departure from the EU, but the Tory policy is ‘no deal is better than a bad deal’ – without spelling that position out further. Fortunately, the UKIP manifesto (discussed below) addresses this point. Unlike UKIP, the Tories do not attempt to ‘sell’ the no-deal scenario – which is just as well considering the concerns about its potential economic damage. Rather there is much discussion of what the positive outcomes of a deal would be.

Future immigration policy would retain an objective of net immigration below 100,000 – which would entail reducing non-EU migration (an issue largely outside the scope of EU law for the UK) as well. This would include further restricting the number of foreign students and family members, despite promises from the Leave side made during the referendum campaign to make it easier to admit UK citizens’ non-EU family members.  

Labour

Labour accepts the result of the referendum but sets out in more detail than the Conservatives what the future UK/EU relationship would look like.  It supports continued relations with Euratom and the single energy market, plus wants to maintain the ‘benefits’ of the single market and customs union without explaining how. Other remarks from the party suggest that it opposes continued participation as such in the single market and customs union, and opposes free movement of persons continuing.

Labour reject the ‘no-deal’ option, support a transitional deal, and list a number of areas where they still wish to cooperate with the EU: research programmes, Erasmus, Europol, Eurojust, the European Arrest Warrant (EAW), climate and anti-terrorism cooperation.  They have a different policy from the Tories on future family migration, as they would waive the strict income requirements for family members rather than tighten them. (There would still be a requirement not to use public funds). They would ‘guarantee existing rights’ of EU citizens in the UK. They set out in detail their future trade policy, insisting on links between trade and other concerns like the environment and human and labour rights.

Liberal Democrats

The LibDems aim for a referendum on the final Brexit deal, and support continued membership of the EU single market (including free movement of people) and customs union. They make specific reference to staying in Erasmus, preserving social and environmental rights, and participating in Europol, the EAW, EU databases, EU research funds, the European health card, abolition of roaming fees, and pat passports. Like Labour, they suggest links in between human rights and the environment in future trade deals. LibDems also give some detail on the position of EU citizens in the UK:

Greens

Similar to the LibDems, Greens propose a referendum on the final Brexit deal, and seek to continue with free movement and the single market. They also wish to guarantee EU citizens’ rights, retain social and environmental safeguards, and link trade deals to other standards.

Scottish National Party

The SNP manifesto views on Brexit reiterate its two key positions: Scotland, or the UK as a whole, to stay in the single market (previously discussed here), and a Scottish independence referendum when the terms of Brexit are known (previously discussed here). They also repeat their support for guaranteeing EU citizens’ rights.

UKIP

Finally, that brings us to the UKIP manifesto. This manifesto gives us an indication of how the ‘no-deal’ scenario hinted at in the Conservative manifesto might play out. UKIP opposes the use of the Article 50 procedure to negotiate with the EU, focussing instead on the purely domestic law change of repealing the European Communities Act. They still aspire to a free trade deal with the EU, however, although they are indifferent to whether they get one – since they also promise to spend the £11 billion “windfall” from tariffs on EU goods. There’s no acknowledgement of the effects on the UK economy of this scenario: indeed, they argue that talk of a “cliff edge” from leaving the EU without a trade deal is “hyperbole”, since trade will still continue. This ignores the obvious prospect that the level of trade will decrease if tariffs and non-tariff barriers are imposed. While they reject the single market and customs union, they want EU/UK trade to continue “on the same basis as present”.

In any event, UKIP not only refuse to make any payment upon departure, they expect the UK to receive a sum from the EU as it leaves. Moreover, they pledge to oppose the existence of customs unions like the EU in the World Trade Organisations – even though the WTO expressly provides for the existence of customs unions, and (as UKIP even acknowledge) the EU is a WTO member in its own right.

Overall then, UKIP expects to receive all the current trade benefits of EU membership, with none of the perceived drawbacks, plus a payment on the way out. All of this while refusing to use the official departure route and campaigning to end the EU’s existence as a customs union and WTO member. If you seek a visual metaphor for how UKIP sees the world, imagine their leader Paul Nuttall – a star football player in his own mind - repeatedly scoring penalties over the heads of 27 massed goalkeepers.

UKIP’s rage against the dying of their light deserves one final paragraph. Their immigration policy includes not just an unreal zero migration target, but also a demand that new immigrants observe UK “values” to be admitted. This from a party who have continually disregarded the basic British values of tolerance, equality and fair play: members have referred to gays causing floods, and repeatedly insulted minorities. Indeed, after the last European Parliament election, to receive EU money UKIP did a deal with a party whose leader denies the Holocaust, and claims that women are inferior and obtain their political beliefs via biological transmission from the men they have sexual intercourse with. Clearly, politics’ loss is gynaecology’s gain.

Overview

There are two broad categories of opinion on the EU in this election, but also important differences within each group. The Liberal Democrats, Greens and SNP want to continue participation in the single market as well as a number of other EU policies. Moreover, all three parties want to offer the option of continued EU membership – the LibDems and Greens by means of a UK-wide referendum on the final deal, and the SNP by means of a referendum on Scottish independence.

The Conservatives, Labour and UKIP all favour departure from the UK without the single market, the customs union and free movement of persons, and aim instead for a free trade deal with the EU. However, these similarities soon end.  Like the first group of parties, Labour would guarantee EU citizens’ rights (in fact, it supports guaranteeing their existing rights, an important nuance), and would seek participation in a number of specific EU measures. The Tories are considerably cooler and less detailed on these issues, and are willing to contemplate a ‘no-deal’ scenario, although they cannot bring themselves to ‘sell’ it. Labour would welcome foreign families and students; the Tories see them as numbers to be reduced.

UKIP offers voters not just one fantasy, but a choice of two fantasies: either a problem-free ‘no-deal’ scenario, or a deal with all of the benefits and none of the supposed drawbacks of EU membership, with a gold watch for UK service to the EU thrown in for good measure. Of course, some would argue that UKIP’s fantasies are simply more explicit than Labour’s or the Conservatives’ – since the EU has made clear in its negotiating position that it is not possible to retain all benefits of the single market for a former Member State which leaves it.

Voters may not wish to make Brexit the main reason for their vote, or may in any event choose to cast a tactical vote against a party they dislike, rather than vote for a party which they most agree with but which has no chance of winning their seat. But it can hardly be said that all parties take the same view on Brexit issues, and the summary above makes clear that for those whose concern is Brexit first and foremost, there is a lot at stake in this election.

Manifestos: Conservatives Labour Liberal Democrats Greens Scottish National Party UKIP

Barnard & Peers: chapter 27

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The Referendum Bill: politics and law

 

Steve Peers

Yesterday’s publication of the Referendum Bill fired the starting pistol in the process of renegotiating the UK’s membership of the EU, and holding an ‘in-out’ referendum on the results. I’ll look at two different elements of the Bill: the parliamentary process and its main contents. It inevitably leaves some issues out, since a Referendum Bill is only meant to deal with the basic referendum process, not with the substantive questions like the content of the renegotiation or the consequences of withdrawal.

Parliamentary process

Although some press reports give the impression that the contents of the Bill are already law, this is obviously not the case. Every Bill must be approved by both Houses of Parliament before it becomes law. Even then, it would always be possible to amend the ensuing Act of Parliament.

Will the Referendum Bill become an Act of Parliament? Yes, that’s virtually certain. The principle of a referendum on EU membership is not only supported by the Conservative majority in the House of Commons, but also (following a recent U-turn) by the Labour party. That should ensure that a Referendum Act can get through both the Commons and the Lords.

However, the devil is in the details. It’s still possible that the Bill could be amended, particularly as regards the issues discussed below (the question, the timing and the franchise).  In the last majority Conservative government, the Bill to ratify the Maastricht Treaty ran in to endless trouble at the hands of an alliance of Labour and Eurosceptic Tory MPs. The current Conservative government has a similar slim majority in the House of Commons, and while there are fewer Labour MPs, there are more Eurosceptic Tories. Time will tell whether these two groups (perhaps in conjunction with the big contingent of Scottish National Party MPs?) can find common cause as regards any amendments.

The Bill also has to pass the House of Lords, of course. While it is unlikely to be defeated as such there (in part because of the ‘Salisbury Convention’, which provides that the House of Lords will not oppose the principle of Bills which were set out in the winning party’s manifesto), again there may be attempts to amend the details. The political dynamics are different, since the Conservative party does not have a majority. While the House of Commons can override the House of Lords if need be, by use of the Parliament Acts, this would cause a one-year delay in the entry into force of the law, scuppering any plan to hold the referendum in 2016.  

 

Main contents

Most of the Bill sets out the dry but necessary detail of the mechanics of holding the referendum. But it does address three key issues: the timing, the question and the franchise (ie, who can vote). I will address these issues in turn.

First of all, the timing. As promised by the Conservative party, the Bill sets a deadline of end-2017 for the Referendum to take place. A referendum in the midst of Christmas shopping is highly unlikely, so the latest realistic date would be November 2017. In fact, the real issue is whether the referendum might be held earlier, sometime in 2016. There’s been some speculation that it might be held in May 2016, on the same date as elections in London, Scotland and Wales. Ideally, as recommended by the Electoral Commission, the referendum should not be held the same day as other elections, to ensure that voters are completely focussed on the separate choices facing them.  Furthermore, holding the referendum on the same day as elections in pro-EU areas such as Scotland and London will give rise to suggestions that the poll is biased, which it is better to avoid.

Secondly, the question. The Bill suggests the following question:

“Should the United Kingdom remain a member of the European Union?”

Some have objected to the word ‘remain’, because it allegedly biases the question in favour of staying in. However, I see no problem in referring to an objective fact: the UK is indeed currently a member of the EU. Indeed, the Electoral Commission recommended the word ‘remain’ rather than ‘in’, because apparently some people are unaware that the UK is currently a member of the EU. I am hoping that none of my former students are among them!

It will still be fully open to the ‘Out’ side to try to convince the public that our current EU membership is a bad thing. Indeed, their whole argument will presumably rest on the awful consequences of being (and indeed remaining) an EU member.

Having said that, it would be preferable not to give either side the supposed advantage of being the ‘Yes’ side. A better question would therefore be ‘Should the UK remain a member of the European Union, or leave?’ with the possible answers being ‘remain’ or ‘leave’.

Some have suggested that there should be multiple questions on the ballot paper, namely a chance to vote for the current status quo of EU membership, as well as withdrawal or Cameron’s renegotiated version (see Jon Worth’s blog for how this could work). The argument against this is simply democratic legitimacy: the Conservative party won a majority in the House of Commons on the basis of holding an in/out referendum on the renegotiated terms.

This brings me to the vexed question of the franchise. The Bill proposes to use the franchise for general elections: citizens of the UK, Ireland and Commonwealth countries over 18 years old living in the UK, and UK citizens living abroad for less than 15 years. But it proposes to add members of the House of Lords and residents of Gibraltar. I have already blogged on the reasons why the general election franchise should be used, due to concerns about legitimacy as well as tactics. (See also the analysis by Jo Shaw here). But some have suggested that it may be illegal to ban EU citizens in the UK from voting in the referendum: see the arguments by Richard Edwards here and by Albert Sanchez Graells here. 

Let’s examine these legal arguments in more detail. The obvious argument against the right of EU citizens to vote in the referendum is the list of EU citizens’ rights in Article 20 TFEU. That list includes the right to vote in local and European Parliament (EP) elections, but does not mention other elections. Article 25 TFEU then says that for EU citizens to have more rights, a further Council Decision has to be agreed and ratified. In the absence of such a decision, they surely do not have further electoral rights. The general references to democracy in the Treaties aren’t very specific, and mostly (for instance in Article 10 TEU) refer to the EU institutions only. It can’t be seriously argued that the ‘general principles’ of EU law require all EU citizens to vote in referenda, in the absence of any widespread practice to that effect (even Ireland does not allow UK citizens to vote in referenda).

The EU Charter of Rights doesn’t help either. It only mentions the rights to vote in local and EP elections, and Article 52(2) of the Charter makes clear that these provisions of the Charter do not add anything to the citizenship provisions of the Treaties. Anyway, the Charter only applies where there is a link to EU law, and although the process of withdrawal from the EU is referred to in Article 50, Article 50(1) in turn refers to the national law of individual Member States as regards the decision on whether to withdraw. It couldn’t be any clearer that it’s entirely up to each Member State to decide who votes in a withdrawal referendum. And for those contemplating litigation on this issue: do you seriously think that the prospects of an ‘In’ vote (and British citizens’ regard for the EU more generally) could possibly be helped by a EU or ECHR court (or a UK court doing their bidding) ordering Parliament to allow EU citizens to vote in the referendum?

 

Barnard & Peers: chapter 2

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The UK's general election: a fundamental change to UK/EU relations?

Steve Peers

The result of the current British election campaign could be crucial for the future of the UK’s relations with the European Union. Every UK-wide election party which is likely to win seats in the election has now released its election manifesto, namely: the Conservatives; Labour; Liberal Democrats; UKIP; and the Greens. It’s therefore a good time to examine what the parties are saying about the EU, and what the various post-election scenarios would mean for the UK’s relations with the EU.

According to pollsters, at present the most probable outcome of the election is that no party will have an overall majority, although there is a small possibility that either the Labour party or the Conservative party will obtain enough seats for a majority. In the absence of a majority, either the Conservative party or the Labour party will try to obtain enough votes to govern from other parties, which are likely to include parties running in Wales, Scotland and Northern Ireland.  So it’s necessary to consider what these other parties’ view on the EU is, and (more indirectly) whether they are likely to support Labour or the Conservatives in office.

Of these parties, only the Welsh Plaid Cymru has released its manifesto already, but I will refer to the other parties’ positions to the extent that they have been announced to the press: the Scottish Nationalist Party (SNP) and the Democratic Unionist Party (DUP). I won’t discuss Sinn Fein, since it will not take up its seats in Parliament, or the Northern Irish Social Democratic and Labour Party, since it sits and votes with the UK-wide Labour party.

Party manifestos

There’s a lot in the manifestos that touches upon EU-related policy. For instance, the Liberal Democrats promise a ‘Digital Rights Bill’, which is closely related to EU laws on data protection and net neutrality. EU law also has a big impact on environmental law, consumer law and some other policies. But I will focus here on the key question of ‘Brexit’, ie the UK’s withdrawal from the EU.

The Conservative party re-iterates that party’s policy of renegotiating EU membership and then holding an in/out referendum by the end of 2017. The renegotiation would focus on free movement (‘immigration’) from the rest of the EU, although the manifesto also refers to changing the principle of ‘ever closer union’ of EU Member States, and protecting the interests of non-eurozone Member States.

The Labour party manifesto refers to specific EU reforms, including EU immigration issues. It promises an in-out referendum if there is a further transfer of powers from the UK to the EU  This policy pledge is a development of current legislation (the 2011 European Union Act), which requires a referendum already in the event of such transfer of powers – but not an in/out referendum. However, the party does not promise an in-out referendum relating to the renegotiation. Indeed, they have made much of their opposition to that prospect.

The Liberal Democrats also promise an in-out referendum if there is a further transfer of powers from the UK to the EU. In fact, it’s their long-standing policy. They don’t call for a referendum following renegotiation.

The UK  Independence Party reiterates its long-standing policy in favour of the UK leaving the EU. It calls for a referendum to be held ‘as soon as possible’, with the preferred question ‘Do you want Britain to be a free, independent and sovereign democracy?’. They support a negotiated withdrawal, rather than a unilateral departure.

The Green Party declares itself in favour of the EU, although supports reform of it, and favours holding an in/out referendum on EU membership. However, it seems unlikely that this party would support a Conservative-led government.

Plaid Cymru declares that it is pro-European, and makes no demand for a referendum. It also seems unlikely that this party would support a Conservative-led government. The SNP support the UK’s EU membership, but in the event of an in/out referendum, they would like the public in each region of the UK to have a veto on leaving. This party has expressly ruled out supporting a Conservative-led government. The Labour party has in turn ruled out a coalition with the SNP, although it has not ruled out less formal arrangements.  

Finally, according to press reports, the DUP supports an in-out referendum on EU membership. It’s not clear if they would support renegotiation first, or would like an immediate referendum along the lines of UKIP. The DUP has traditionally supported Conservative governments in the past, although the party has declared its willingness to negotiate with the Labour party as well. It’s not clear if they would insist upon an EU referendum as the price of their support of a Labour government (it would be superfluous to insist on one as a condition of supporting the Conservatives). It’s also not clear if, like the SNP and Plaid Cymru, they would insist that Northern Ireland would also have to vote in favour for Brexit to be valid, but I doubt that this is their view, since they traditionally seek stronger ties between Northern Ireland and the rest of the UK.

Analysing the manifestos

To make things simpler, I will assume that politicians will stick to the policies that they are promising. Of course, it’s always possible that politicians will break their promises; some might say that this is about as certain as death and taxes. But politicians do keep some promises, and in some cases there are strong pressures on them to keep those pledges. For instance, if David Cameron reneged on his renegotiation policy, he would not last 24 hours as leader of the Conservative party.

There are three different visions of the UK’s future with the EU on offer: an immediate Brexit referendum (favoured by UKIP); renegotiation followed by a referendum (supported by the Conservatives); or renegotiation without a referendum (supported by Labour and the Liberal Democrats).

The latter two parties do support a referendum in the event of a transfer of powers from the UK to the EU, but that would only happen if there were a Treaty amendment that other Member States appear to have little enthusiasm for. In the event that Eurozone Member States want new measures to ‘save the euro’, it’s possible to agree separate treaties or EU legislation among themselves (as they have before), or, if necessary, to agree on amendments to the EU Treaties which only apply to the Eurozone states, or which otherwise give the UK an opt-out. In that case, there would be no transfer of powers from the UK to the EU, and so no need for a referendum.  Simply put, an in/out referendum under the Labour or Liberal Democrat policies is very unlikely.

As for the details of the Brexit policies, I have commented already on the details of the Conservatives’ intentions to renegotiate the free movement rules, and so won’t repeat these points again.

While UKIP make much of the need for an unbiased referendum campaign, their suggested question is clearly biased. A genuine unbiased question would be: ‘Do you support the UK remaining a member of the European Union, or leaving it?’, with boxes for ‘remain’ and ‘leave’ (so that neither side has the supposed advantage of being the ‘Yes’ vote).  

The demand for regional voting on a Brexit referendum in the different parts of the UK is clearly incompatible with the constitution of the UK as it currently stands. It resembles the arrangements in federal states like Canada, Australia and Switzerland, where there are both national and regional thresholds for constitutional amendments. But the UK is not such a state – though whether it should be one is a rather broader question. In any event, it’s a moot point, since it would only arise in practice if the SNP is supporting a Conservative government – which it has said it won’t do.

Negotiations between parties

What happens if no party holds a majority? The exact composition of the next government will then depend on negotiations between the parties, which in turn depends on the exact numbers of seats each gets. It’s too early to predict that now. But some basic points can be made.

First of all, it’s simply not true, as Professor Tim Bale has pointed out, that the biggest party always gets to form the government. It’s rare for the second largest party to form one, but it’s entirely legal and consistent with constitutional convention if it does.

Secondly, the Liberal Democrats have clearly indicated via press reports their willingness to compromise on the Brexit issue, and to support the Conservative demand for a referendum subject to discussion of the details, such as the width of the voting franchise and the wording of the referendum question. A Brexit referendum is clearly a ‘red line’ (non-negotiable issue) for the Tories. So a renegotiation and referendum would be likely to take place if the Tories and Liberal Democrats hold a majority of seats between them, or if the Tories, Liberal Democrats and DUP hold a majority.

Thirdly, a coalition or other arrangement involving UKIP (Tory/UKIP; Tory/DUP/UKIP; Tory/LibDem/UKIP; Tory/LibDem/UKIP/DUP) might have difficulty agreeing on the Brexit issue, due to the different policy of UKIP. Some Conservative backbenchers would undoubtedly like to a see an immediate Brexit vote, but others in the party, and the Liberal Democrats, would not. But it would be awkward for UKIP to back down on its most important policy.

If Labour and the Liberal Democrats held a majority, or if Labour formed a government in most other scenarios (Labour/SNP; Labour/LibDem/SNP; Labour/SNP/Green/PC etc) a Brexit referendum is highly unlikely.

Finally, in the improbable event that Labour and the Conservative party do a deal, differences in the Brexit referendum policy would be one of many obstacles. But the far bigger issue would be managing the consequences of hell freezing over.

Passing EU-related legislation

Finally, would there be any difficulties legislating for Brexit? It can be assumed that a Tory-led government would immediately introduce a government bill to put into effect its planned referendum. One potential problem here is the House of Lords, which blocked a previous private member’s bill which aimed to put this policy into law. The so-called ‘Salisbury Convention’ means that the House of Lords does not block government bills which implement policies which were set out in the leading party’s manifesto. According to the House of Lords itself, the convention should only apply if all of the coalition parties have set out the same policy – but only the Tories (and likely the DUP) have set out a renegotiation and referendum plan in their manifesto. That could lead to the House of Lords blocking the referendum Bill. Although a majority in the House of Commons could use the Parliament Act to overrule the Lords, that would mean a year’s delay in the law coming into force, which might complicate renegotiation talks.

Art credit: Adam, Daily Telegraph

Barnard & Peers: chapter 2

Amending EU free movement law: What are the legal limits?

Steve Peers

Much public debate in recent weeks has centred upon the possible amendment of EU rules on the free movement of people. In particular, the think-tank Open Europe and the UK Labour party have set out policies on this issue, and Prime Minister David Cameron is expected to make an announcement of his views soon. While most of the discussion focuses on the political and economic aspects of these proposals, there is also an important legal dimension to the debate, because EU law determines how easy (or difficult) it would be to put any potential changes into effect.

In particular, there are three principal ways to change the EU free movement rules: (a) by changing national law, while still remaining consistent with EU law; (b) by changing EU legislation; or (c) by amending the EU Treaties. The first course of action needs only (at most) a national parliamentary majority; the second course of action needs a Commission proposal and support from the European Parliament and a qualified majority in the Council; but the third route needs unanimous support from all 28 Member States’ governments, then ratification in national parliaments.

So it’s important to know which of these categories the proposed reforms fall into. For the reasons set out in this blog post, some of the proposals of Open Europe fall into the second category (EU legislative amendment). But contrary to their arguments, the most significant proposals made by Open Europe fall into the third category (Treaty amendment), making them much more difficult to accomplish than their authors suggest.

As for the Labour party proposals, they broadly reflect the Open Europe suggestion to impose a waiting period on access to in-work benefits for EU migrants. Finally, it’s obviously not possible to comment on David Cameron’s proposals for EU policy reform (which might go beyond EU free movement law) until he makes them. So this blog will return to the issue after his forthcoming speech.

This blog post is in three parts: an analysis of the proposals on cutting back benefits for workers, job-seekers and former workers;  an examination of the other proposals made by Open Europe; and my suggested text for proposed amendments to EU legislation to implement those Open Europe proposals which are (in my view) both desirable and legally feasible.  

Cutting back workers’ benefits

The central proposal of Open Europe today is that newly-arrived EU citizens should be denied equal treatment as regards out-of-work or in-work non-contributory benefits, social housing and apprenticeship schemes for a period of between one and five years, to be negotiated. This suggestion builds upon another recent Open Europe paper which suggests further details of changes to EU legislation on these issues. My comments are mainly directed at the latter paper, which sets out the legal reasoning underpinning today’s proposal. As noted already, the Labour party proposals reflect Open Europe's suggestions, and so the following comments equally apply to those proposals.

I won’t mince words: there’s a fundamental legal problem at the core of these proposals. The Open Europe paper suggests that both in-work and out-of-work benefits could be limited simply by amending EU legislation. This is true for those EU citizens who are not workers, and who have never looked for work or held work in the host Member State, as the CJEU has recently clarified in the ‘benefit tourism’ case of Dano (see discussion here). But look at the Court’s reasoning: it deferred to the wording of EU legislation in that case because the Treaty rules on the rights of EU citizens (Articles 20 and 21 TFEU) defer to the limitations on EU citizens’ rights ‘defined by the Treaties and the measures adopted thereunder’, and ‘laid down in the Treaties and in the measures adopted to give them effect’. Equally the Court referred to Article 18 TFEU, which provides for non-discrimination against EU citizens ‘[w]ithin the scope of application of the Treaties, without prejudice to any special provisions contained therein’.

For people like Ms. Dano, there are no Treaty rules which govern their legal situation, because she was not a worker, and was not a job-seeker or former worker either. Neither was she a self-employed person, service provider or student. Therefore the Court only looked at her position under EU free movement legislation.

But the vast majority of EU citizens in another Member State do fall within one of those other categories – most notably as workers, including job-seekers and former workers. The crucial point here is that all of those other categories of EU citizens have rights not just pursuant to EU legislation, but also pursuant to the Treaties. Indeed, that point is recognised in the very wording of Articles 18, 20 and 21 TFEU: Article 18 defers to the special rules on non-discrimination in the rest of the Treaty, while Articles 20 and 21 defer equally to the Treaties and secondary legislation. The intention of the Treaty drafters is perfectly clear.

So what does this mean for the position of workers? (I’ll concentrate on them, since they are the main focus of the Open Europe proposals). The specific Treaty provision regulating workers’ free movement is Article 45 TFEU, which first specifies that ‘Freedom of movement for workers shall be secured within the Union’. Article 45(2) further specifies that free movement entails the abolition of discrimination between EU workers as regards ‘employment, remuneration and other conditions of work and employment’. Article 46 TFEU then confers powers to adopt legislation ‘setting out the measures required to bring about freedom of movement for workers’. Article 48 TFEU sets out powers to adopt rules to coordinate social security for workers.

The wording of these Treaty articles doesn’t defer to the legislation in order to set out workers’ rights, and this has long been recognised by the Court of Justice. So free movement of workers (and the associated right to equal treatment) has long been recognised in CJEU jurisprudence as a directly effective Treaty right, precisely because it is not dependent on the adoption of further measures. This also means that the CJEU controls the definition of ‘worker’, and extends it to cover also those who are former workers or job-seekers.

Indeed, as recently as this summer, in the Saint-Prix case (discussed here), the CJEU expressly asserted that the definition of former workers (and therefore the access to benefits) as defined in EU legislation didn’t matter, since the Court would determine which former workers still qualified for access to benefits. So the Court ruled that female workers who were former workers at the time when they gave birth still had access to benefits (as long as they got work soon afterward), even though the legislation did not define them as former workers.

So unless the CJEU does a U-turn on this issue, there would be little point in trying to amend the legislation in order to require former workers to wait longer for benefits. At the moment, EU citizens retain worker status, and access to benefits, if they become involuntarily unemployed after working for more than one year in a Member State. If they become unemployed before that point, they retain worker status for a maximum of six months. There are also several other cases where they retain that status.

What about job-seekers who were not formerly employed in the host State? Well, there’s no need to amend EU legislation in order to refuse them some types of benefits, since the EU citizens’ Directive expressly makes clear that they are entitled to no equal treatment as regards ‘social assistance’ at all. However, the CJEU has said (in the Collins case) that, pursuant to the Treaties, job-seekers cannot be refused equal treatment as regards benefits which are intended to facilitate access to employment. And in the Vatsouras case, it expressly distinguished this type of benefit from ‘social assistance’ benefits which job-seekers are not entitled to pursuant to the citizens’ Directive.

The CJEU will have a chance to clarify the position in the pending case of Alimanovic. It might possibly do a U-turn on this issue in its judgment on that case. If it doesn’t, then again, in order to cut back on such labour-market benefits for job-seekers, a Treaty amendment would be necessary.

Next, as regards workers, the key free movement rule, and the equal treatment right, are laid down in the Treaty itself. When ruling on workers’ equal treatment rights, the Court regularly refers to the Treaty rule and the relevant legislation, and both of these confer equal treatment as regards benefits: see the judgment in O’Flynn, for instance. Since the right to workers’ equal treatment is expressly set out in the Treaties, then removing in-work benefits for workers – the core of the Open Europe proposal – would be manifestly contrary to the Treaties, and would require a Treaty amendment.

Of course, a Treaty amendment is not impossible; it’s simply much more difficult than a legislative amendment. It would most likely take the form of a Protocol which sets out a derogation from the Treaty rules.

Other Open Europe proposals

The Open Europe paper suggests an amendment to EU legislation to specify that EU law cannot derogate from national powers as regards matters such as social assistance. It’s not possible for EU secondary legislation to limit EU powers as defined in the Treaties, but an amendment to EU secondary legislation could refer to such limits. This is my suggested amendment 1 below.

In the context of a waiting period for benefits, the Open Europe paper correctly mentions that the time period spent in detention in the home State for committing offences does not count for this purpose. This rule is set out in the case law, but it could also be added to EU legislation. This is suggested amendment 2 below.

Next, the Open Europe paper suggests a number of protections for national workers as regards unfair competition from other Member States. It is suggested here that the EU posted workers’ Directive provides such protection, but this isn’t always the case. So I suggest an amendment to that Directive in order to overturn the controversial CJEU judgment in Laval (amendment 3).

The specific suggested amendments relating to unfair recruitment standards, living wages et al can best be addressed by amendments to the specific Regulation on the free movement of workers. My suggestions to this end are set out in amendment 4.  

Finally, the Open Europe paper gets round to suggesting some protection for migrant EU workers in areas other than employment, on the grounds that the proposed three-year waiting period for equal treatment ‘might contribute to a sense of vulnerability on their part’. The report’s authors should win an award for their contribution to the great British art of understatement here. One could equally say that the Titanic’s collision with an iceberg might have contributed to a sense of dropping body temperature on the part of its passengers.

Open Europe's specific suggestion is to adopt EU legislation protecting EU migrant workers against discrimination on grounds of nationality as regards supply of goods and services. This is possibly superfluous in light of the non-discrimination rules in the Treaty. But to be on the safe side, I have suggested amendment 5, to the Regulation on migrant workers.

Finally, a number of specific statements in the Open Europe paper need correction or clarification. On page 3, there are more than two ‘important protections’ (for States) as regards exceptions from equal treatment for benefits. Nor is sickness insurance a requirement for all EU citizens, only those who are not workers or self-employed. The Brey judgment (text at note 6) has been effectively overturned by Dano, which was delivered after this paper was published. Equal treatment applies only to those EU citizens who are legally resident. Former workers are entitled to benefits not just in the cases referred to in note 9. On page 9, the CJEU has yet to rule whether Article 31 of the EU Charter of Fundamental Rights creates justiciable rights; this issue is the subject of the pending Fenoll case. It’s an overstatement to say that national law giving effect to Charter social rights is always protected by EU law, as the CJEU judgments in Laval, Viking Line and Alemo-Herron make clear.

Proposed amendments

Amendment 1

Add a new Article 1(2) to the citizens’ Directive:

This Directive shall not affect Member States’ competence to define national rules on social assistance and social security (including pensions), public health, public education and employment policies, in accordance with the Treaties.

Amendment 2

Add a new sentence to Article 21 of the citizens’ Directive:

Periods spent in prison as the consequence of a conviction for a criminal offence shall not be taken into account.

Amendment 3

Add a new sentence to Article 2(10) of the posted workers’ directive:

In particular, equality of treatment as regards pay shall be assured as regards all collective agreements, whether or not they are covered by the definition set out in paragraph 8.  

Amendment 4

Regulation 492/2011 on the free movement of workers should be amended to add a new Section 1a, ‘Equal treatment of host State workers’, consisting of a new Article 6a:

Member States shall not permit recruitment of or advertising for employment to nationals of other Member States only.

A new sentence should be added to Article 7(1):

The principle of equal treatment in working conditions applies in particular to any rule relating to wages, including a minimum wage or living wage requirement in the host Member State, as well as any rules relating to health and safety.

A new Article 7(5) should be added:

In order to ensure a dignified standard of living for workers exercising free movement rights, Member States may prohibit bonded agreements or tied housing.

Amendment 5

A new Article 7(6) should be added to Regulation 492/2011:

Workers shall enjoy equal treatment without discrimination on grounds of nationality as regards access to and supply of goods and services which are available to the public.

*Note: This would be enforceable in the way that the Open Europe paper suggests, by means of the Directive on enforcement of migrant workers’ rights, adopted in 2014.

 

Barnard & Peers: chapter 13

Scottish independence: how would it impact the UK’s relations with the EU?

Steve Peers

With the Scottish referendum on independence now imminent, and a surge in the ‘Yes’ vote now putting the pro-independence side ahead in some opinion polls, it’s a good time to re-examine the impact that Scottish independence would have on the EU – particularly as regards the EU membership of both Scotland and the remainder of the UK (the ‘rUK’).

At the outset, Scottish independence would mean that four important events would happen more or less simultaneously: Scottish/rUK negotiations on their future relationship; Scottish negotiations to (re)join the EU; UK renegotiation of its EU membership; and the UK general election. The first two events are entirely unprecedented, while the third (UK renegotiation of EU membership) has only happened once before (in 1974-5), under rather different circumstances.

The last event (the UK election) is commonplace, but again the circumstances would be profoundly different than usual. In particular the loss of 59 Scottish seats from the House of Commons would likely alter the result of the election, given that Scotland usually votes far more heavily in favour of the Labour Party than the rest of the country. But if the election goes ahead as planned in May 2015, the loss of Scottish seats would not take effect until the following year, if independence goes ahead as planned in spring 2016.

These four events are closely related to each other. For instance, the result of the UK election will determine the rUK’s negotiation position with an independent Scotland. It will also determine whether the UK attempts to renegotiate its EU membership at all. It should be recalled that renegotiation is the position of the Conservative party, but not (as things stand) of the Liberal Democrat or Labour party. So only a Conservative majority would certainly result in a renegotiation.

Further significant developments are possible, too. A ‘Yes’ vote in Scotland might result in David Cameron’s resignation, or attempts by some of his party members to remove him. The UK Independence Party is likely to win its first Commons seat in an October by-election.

So no-one can realistically predict with any certainty how things would develop after a ‘yes’ vote. The key question of whether Scotland could rejoin the EU has already been discussed in a previous blog post (as has the issue of immigration between Scotland and rUK). The focus of this post is therefore on one issue: the impact of a ‘Yes’ vote on the UK’s relations with the EU.

The starting point here is Scotland’s relations with the rUK. Trade with the rest of the UK (as well as the rest of the EU has a whole) is obviously crucial to Scotland. Indeed, a key feature of the ‘Yes’ campaign is the argument that nothing would really change in this regard, whereas the ‘No’ side has argued that relations with the rUK and the EU would likely be jeopardised after independence.

Clearly, the ‘Yes’ side seems to be winning this argument. Apparently they have been able to convince an increasing number of voters that the ‘No’ side argument is a bluff which can be called.

Is this argument a bluff? Dissecting the issue objectively, there is good reason (from its point of view) for the ‘No’ side to refer to the risks of independence up until the referendum date (although politically speaking, making this argument seems now to be backfiring for them).

But in the event of a ‘Yes’ vote, the rUK ought to consider what it in its own best interests. It seems very clear that, given the economic importance of Scotland to the rest of the UK, the rUK ought to seek to maintain as close an economic relationship with the rest of Scotland as it possibly could. That has domestic implications (as regards a currency union), but also implications for Scotland’s relationship with the EU: it will overwhelmingly be in the interests of the rest of the UK to advocate Scotland’s continued membership of the EU on terms equivalent to the UK’s current membership. Indeed, this is the crux of the ‘Yes’ side’s argument on this point: the ‘No’ side is threatening not just Scotland but also itself. That threat just isn’t credible.

It is possible, however, that the rUK will not act in its best interest. Voters in the rest of the UK may be resentful and desire to punish Scotland. Furthermore, those who wish to renegotiate the UK’s EU membership, or withdraw the rest of the UK from the EU, may not have an interest (for tactical reasons) in supporting Scottish EU membership. The first group (the renegotiators) would face a difficult dilemma, because they would have to expend their limited goodwill with the EU not just on one major project (renegotiation) but a second project (Scottish membership) at the same time.

Provided that the renegotiators genuinely want the UK to remain part of the EU, then it nevertheless makes sense for them to push for both at the same time. After all, while the rest of the EU already takes up a large portion of UK’s trade, that portion would be larger still after Scottish independence – if an independent Scotland joined the EU.

Yet this in turn explains why those who wish to withdraw from the EU might seek to block Scottish membership of it, either directly (by refusing rUK consent) or indirectly (by stirring up opposition among countries like Spain, which have their own regional independence movements to contend with). Of course, if the UK does leave the EU, it can no longer block Scottish membership of it. But in that case, Scots would no longer be as keen to join the EU, since joining the EU would then possibly impede its trade with the remaining UK (although this assessment would be depend on the terms of an EU/rUK free trade agreement – if there is one).

Indeed, some English Eurosceptics might well fantasise that Scotland might be the first country to sign a free trade agreement with the newly ‘independent’ rUK. One can only imagine Alex Salmond’s face at that signing ceremony.

Barnard & Peers: chapter 3

The Pro-European case for a renegotiation of and referendum on the UK’s membership of the EU

By Steve Peers

The Prime Minister, lacking a majority in the House of Commons, is harried by his Eurosceptic backbenchers. He promises a renegotiation of the UK’s membership of the EU, followed by a referendum on whether to stay in. It’s 2014 – but it’s also 1975.

That renegotiation and referendum ultimately resulted in a landslide vote in favour of staying in the EU. While the circumstances are different in some respects in 2014, there is a strong case for repeating this process.

The argument for a referendum on the EU has so far been made either by those who are opposed to the UK’s membership of it (UKIP), or as a concession to those backbenchers who are highly critical of it (the Conservative party). On the other hand, it has been resisted by those who are most in favour of the EU.

In that light, the purpose of this post is two-fold: (a) to make a pro-European case for a referendum and (b) to describe exactly how the UK should renegotiate its membership beforehand.

The pro-European case for a referendum

The case for a referendum on EU membership should stand on its own, and should not be seen as a defensive reaction to the results of the most recent European Parliament elections.

First and foremost, since 1975 there have been five major Treaty amendments, as well as substantial enlargement of the EU. The political and economic circumstances of the country, and the EU as a whole, have clearly changed. There is therefore a principled argument for allowing the voters to give their fresh consent (or not) for these developments.  

Secondly, the continued pro-European rejection of a referendum has made it possible for critics of the EU to characterise pro-Europeans as anti-democratic. Of course, it can be argued in response that representative democracy is also a valid form of democracy, one with longer and deeper roots in British political culture, and that the UK Independence Party has never (at least to date) won a single seat in the House of Commons. But in light of the growing tradition to decide important constitutional questions by popular referendum, that counter-argument has diminishing force. After all, voters cast their vote at general elections for many reasons besides their view on membership of the EU.

More broadly, pro-European opposition to a referendum makes it look as if pro-Europeans do not have the courage of their convictions. If the EU is, as they say, such a good thing for the UK, why fear a popular vote on it? In fact, on several occasions, pro-Europeans have promised a referendum on some aspect of the EU, and then apparently (if not technically) reneged on their promise. This gives the impression that pro-Europeans cannot be trusted, and so leads some voters to question the honesty of their arguments. The longer that pro-Europeans resist the case for a referendum, the more that these negative impressions will grow. Put simply, the pro-European resistance to an in/out referendum is surely damaging the pro-European cause.

While Labour and the Liberal Democrats have promised an in/out referendum, this would only take place in the event of a new Treaty transferring powers from the UK to the EU. While it is possible that there will be negotiations for Treaty amendments in the next few years, it is inconceivable that those parties would agree to the transfer of fresh powers from the UK to the EU in that context. So that referendum promise is meaningless. The Labour and Liberal Democrat position is like promising that if I had a sex change, I would stay married to my wife. But I’m not going to get a sex change.

In any event, the very offer of an in/out referendum, even  if the conditions for it to be held are unlikely ever to be satisfied, undermines the logic of the arguments against having such a referendum.

It must be emphasised that the case for a referendum is non-partisan: advocating a referendum does not necessarily mean supporting British withdrawal from the EU, or supporting any other policy espoused by the Conservative party.  

So the pro-European response to calls for a referendum should no longer be to find an excuse not have one, to promise one and renege on that promise, or to promise one that will never be held.  It should be, simply: Bring it on.

Renegotiation of UK membership

Before examining the details of renegotiation, one critical rule must be set down at the outset. Any renegotiation position must avoid insisting upon Treaty amendment, or upon a change in EU law which necessarily involves Treaty amendment (such as complete UK control over the free movement of persons). That’s because a Treaty amendment will be far more difficult to achieve, in particular if it becomes bound up with other possible amendments to the Treaties concerning other issues. Those who demand that such renegotiation positions (such as full control over the free movement of persons) should be a ‘red line’ are essentially dishonest. If that issue is crucially important to them, they should instead call for UK withdrawal of the EU, with all of the consequences which that entails.

In fact, back in 1975, other Member States agreed to a renegotiation consisting of amendments to EU secondary legislation, and the British public ultimately accepted that deal. Again, it would be possible today to address many of the issues arising from the UK’s membership of the EU by amending secondary legislation. Indeed, Jean-Claude Piris recently argued that the negotiation demands set out by David Cameron could all be addressed by amendment of secondary EU legislation.

As discussed in a previous post, this is correct. However, there is a risk that the critics of the EU would not be entirely satisfied by it. The better strategy is therefore to aim for an intermediate course: in conjunction with amendments to EU secondary legislation, there should be a decision of the EU Heads of State and Government, meeting within the European Council, which constitutes the EU’s response to the renegotiation request.

Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties ratifying the Maastricht Treaty and the latter Member State’s difficulties ratifying the Treaty of Lisbon. In the latter case, the European Council also agreed the broader legal and political context of this decision: the decision was ‘legally binding’, it did not constitute a Treaty amendment, and its content would be set out in a Protocol to be attached to the Treaties in future. Indeed, the latter protocol was subsequently signed as promised. The UK could be offered a similar commitment.

In order to indicate more clearly how the renegotiation would work, the annex to this post suggest a possible wording for such a decision, based upon the 2009 Decision concerning Ireland, adapted to the Conservative party’s negotiating demands.

The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,

Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,

Desiring to address those concerns in conformity with the Treaties,

Having regard to the Conclusions of the European Council of [xx date] 2017,

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.

Section B

Free movement of persons and social benefits

The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.

Note: see the recent Advocate-General’s opinion in the Dano case (press release here); see also the previous post discussing the current limits on expelling persons following unemployment and/or requests for social assistance.

Section C

Powers of national parliaments

The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.

Section D

Economic reform

The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].  

Section E

Policing and criminal law

The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.

They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.

Note: if the process of ECHR reform is completed before the UK renegotiation of its EU membership, there could be a more specific commitment to give effect to the results of that process, for instance ratifying a new protocol to the ECHR.

Section F

Reduction of EU competences

The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.

Note: this could be accompanied by specific commitments to repeal or reduce the scope of some existing EU legislation.

Section G

‘Ever Closer Union’

The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25