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
