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

Photo credit: BBC

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

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