Dismantling the sham EU-UK settlement

I still feel unsettled by the current situation regarding our “re-negotiation” with the EU. I feel as if there is something more to it, that a game is being played, and there is yet to be another twist to come designed to allow the PM to play the British bulldog. This is politics, after all.

For now, however, I will analyse the settlement on the table.

Tusk’s letter outlines the settlement, with the main document being the Draft Decision of the Heads of State or Government; “concerning a New Settlement for the United Kingdom within the European Union”.

If approved, it “shall take effect on the same date as the Government of the United Kingdom informs the Secretary-General of the Council that the United Kingdom has decided to remain a member of the European Union”.

Let’s take a closer look at what’s been thrown in the begging bowl.

Section A – Economic Governance

The reader may remember that the prime minister asked Mr Tusk for protection for non eurozone members.  Stating that if the eurozone countries took measures to secure the long-term future of their currency, they should “respect the integrity of the Single Market, and the legitimate interests of non-Euro members”.

Mr Tusk responded by saying that “further deepening is needed“. (i.e. a new treaty) in order to complete economic and monetary and that participation in economic union “will be voluntary for Member States whose currency is not the euro and will be open to their participation wherever feasible“. He made it clear that non-eurozone states should not “create obstacles to but facilitate such further deepening while this process will, conversely, respect the rights and competences of the non-participating Member States“. All fairly obvious stuff, EMU is to be completed, and a major priority of the EU is that Britain does not stand in the way.

Then comes the detail in six points which are designed to prevent discrimination between euro and non-euro states. With the following requirement:

“Legal acts, including intergovernmental agreements between Member States, directly linked to the functioning of the euro area shall respect the internal market or economic, social and territorial cohesion, and shall not constitute a barrier to or discrimination in trade between Member States. These acts shall respect the competences, rights and obligations of Member States whose currency is not the euro.”

Point 3 gives assurance that member states not participating in the banking union or the euro will “not entail budgetary responsibility” in the event of “Emergency and crisis measures” being implemented. In point 4, the Council states that “the implementation of measures, including the supervision or resolution of financial institutions and markets, and macro-prudential responsibilities, to be taken in view of preserving the financial stability of Member States whose currency is not the euro is a matter for their own authorities, unless such Member States wish to join common mechanisms open to their participation.”

The six points are important, and if actioned would offer reasonable protections; however, there are several things to note. For one, it is likely that these protections would always have been sought by non-eurozone countries when EU moves to complete the EMU, with or without the “re-negotiation”.  This doesn’t negate their importance, but merely renders the assertion that this is a genuine achievement of negotiation very dubious.

More importantly, the prime minster had called for “legally binding principles that safeguard the operation of the Union for all 28 Member States – and a safeguard mechanism to ensure these principles are respected and enforced”. This has not been achieved by this settlement.

Note the statement at the end of this section:

“[7. The substance of this Section will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States.]”

The square brackets are indicative of text that has not yet been approved, so even within the draft document they are conditional and subject to change if Member States dispute them. To become legally binding treaty revision is required, and this may not take place now until beyond 2019. These points are therefore purely a political statement of intent; the European Council is saying that in an unspecified time in the future they will be included in a draft treaty, as long the Council as it is made up at the time of said draft agrees to be bound by this decision. Then the draft – including these points – must be agreed to by all 28 Member States.

Thus, within section A there is nothing legally enforceable that will ensure they are implemented and honoured.

To conclude, these safeguards are far from concrete, they amount to a statement of future intent, and have likely been under discussion in relation to EMU completion for some time.

This is not a victory.

Section B –  Competitiveness

This is by far the least significant section, in-fact it is barely worth remarking on. The Five Presidents report, which sets out the schedule for completing the fiscal and political union and measures to “stabilise the European House” already addresses this area.

Within stage 1 (July 1 2015 – 30th June 2017) of its schedule, a period we are now in, it proposes making “the best possible use of existing Treaties”, which includes “boosting competitiveness”. It is clear that Section B is merely a reaffirmation of the current intentions.

The vague assurances given here do not amount to a victory. 

Section C – Sovereignty (ever closer union)

Here the European Commission is addressing the British Government’s concern at the continued inclusion in the treaties of the term “ever closer union”.

This was included in Cameron’s letter to Donald Tusk on 10 November 2015:

“I want to end Britain’s obligation to work towards an “ever closer union” as set out in the Treaty. It is very important to make clear that this commitment will no longer apply to the United Kingdom. I want to do this in a formal, legally-binding and irreversible way.”

The PM is very clear about wanting “a formal, legally-binding and irreversible” commitment, does he get it? No. The Council Decision offers this statement:

“It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union.”

This is a political statement, nothing more. Article 15 of the Consolidated Treaties, states: “the European Council … shall not exercise legislative functions“, meaning the statement of the Council is not legally binding.  The Council clearly recognises this fact by once again giving assurance that it will included in treaty revision at an unspecified time in the future:

“[The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States.]”

The square brackets indicate text has not yet been approved. Once again, it will need to be approved the Member States and, indeed, the Council in place at the time of the next Treaty revision. The European Council is not able to give a “legally-binding and irreversible” commitment from the European Union.

Crucially, the next EU treaty is likely to be a major one, with the intention to complete the economic and political union. The federalist movement the Spinnelli Group published a Fundamental Law in 2013, a draft treaty revision which is likely to form the basis of the treaty frequently referred to in this settlement.

Its purpose is to complete the economic and political union and consolidate and increase EU power over its Member States. In addition to the wide ranging and extensive powers designed to complete EMU, the treaty will widen jurisdiction of the Court of Justice, end opt-outs in justice and home affairs and endow the EU with “legal personality”.

The EU becoming a legal personality changes its very nature, giving it the legal attributes of a state in international affairs. It will be able to make its own treaties with third countries – rather than Member States signing on its behalf – and it will be able to use its own processes, such as qualified majority voting, rather than requiring the accession of Member States and it will enforce its agreements through the ECJ. No doubt it will also tighten its grip over trade and foreign policy and move to sit in its own right on global bodies and remove Member States.

The EU will use the treaty as the final step in the project; becoming a defacto state.

A Fundamental Law also proposes creating something called “associate membership”. Under this provision the UK government, if offered this status, would begin negotiations with the EU to decide the extent to which it will be party to the federalisation process that the treaty proposes.

There is obviously a limit given that we would not adopt the Euro, but to my mind it is very clear that it would involve deeper integration than our current situation (and even outside the eurozone and with a rebate and opt outs we are very deeply integrated indeed), and would certainly would not involve any improvement on our current plight via repatriation of powers. The extent to which we trust our government to negotiate a deal that halts further integration from where we are now, I will leave to the reader.

So from a current situation in which there is a popular belief that we have integrated too far, we would likely integrate further, and then perhaps be given the title of “associate” and maybe even have it recognised that we do not want “ever closer union”.

The important point being that with the Union complete and the UK as integrated as far as is possible without having actually adopted the Euro, what value is there in recognition that we don’t wish to integrate further? What value is there in a superficial “associate” title? None.

We would be clutched to the chest of the beast, and handcuffed, and then patted on the head and told “that’ll do”.

On “ever closer union”, there is no victory.

The “red card”

“It does not take much political analysis to work out that the chances of that mechanism being employed on any regular basis are vanishingly small. It could be used only if 14 different national Parliaments, nearly all of which have a Government majority, defeated an EU proposal, and did so within an eight-week period. We have only to consider that for a moment, as Members of Parliament, to begin to laugh about it. Given the difficulty of Oppositions winning a vote in their Parliaments, the odds against doing so in 14 countries around Europe with different parliamentary recesses—lasting up to 10 weeks in our own case—are such that even if the European Commission proposed the slaughter of the first-born it would be difficult to achieve such a remarkable conjunction of parliamentary votes.”  – William Hague

David Cameron desired an enhancement of the role of national parliaments and proposed “a new arrangement where groups of national parliaments, acting together, can stop unwanted legislative proposals” with the threshold of national parliaments required, “a matter for the negotiation“.

This is being spun as a major boost of national sovereignty, but it is no such thing, this is deceptive nonsense. The notion that national parliaments of Member States would be empowered to reject EU legislation is delusional.

The “red card” is merely an extension of Protocol 2, “ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY” in the Consolidated Treaties, and the same proposal that William Hague dismissed in his scathing mockery, with George Osborne and David Cameron guffawing derisively behind him.

Under Protocol 2, if a third of all the votes held by the national parliaments of Member States endorse the complaint that a legislative proposal fails to conform to the principle of subsidiarity, then the proposal must be reviewed:

“Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed.”

After review the Commission can choose whether to amend or withdraw the draft.

This can only be utilised in a situation where a draft law fails to comply with the principle of subsidiarity, and this only applies to areas where the EU does not have exclusive competence, which has happened only twice since it came into being in 2009. It is a limited provision that applies to a very small number of scenarios.

Our “red card” proposes that:

“Where reasoned opinions on the non-compliance of a draft Union legislative act with the principle of subsidiarity, sent within 12 weeks from the transmission of that draft, represent more than 55 % of the votes allocated to the national Parliaments, the Council Presidency will include the item on the agenda of the Council for a comprehensive discussion on these opinions and on the consequences to be drawn therefrom.

Following such discussion, and while respecting the procedural requirements of the Treaties, the representatives of the Member States acting in their capacity as members of the Council will discontinue the consideration of the draft legislative act in question unless the draft is amended to accommodate the concerns expressed in the reasoned opinions.”

As a concession, this is slim to nothing. Gaining the 55% vote will be near impossible, as William Hague said himself, ever so eloquently. It requires us to get more than half of Europe’s parliaments on the same side within 12 weeks, and then the Commission decides what to do about objection.

This is little more than rebranding of an existing, and already impotent, provision. Furthermore, it would require an amendment to Protocol 2, which means treaty change… at some point in the future.

When you consider the fact that if the UK were a member of EFTA, trading with the EU via the EEA, we would have a “right of reservation” as set out in Article 102 of the EEA agreement and thus has the right to opt out of new EU legislation, a right that the UK does not have currently, you have to treat this new “red card” concession with the scorn it deserves, and question our influence in the EU.

Red card? Not a victory.

The “Emergency Brake”

This is an outright con, a conscious and deliberate attempt to deceive. This is not a product of hard fought negotiations in which the EU has conceded on limited suspensions of welfare payments to migrant workers. In effect, the UK would be invoking something along the lines of the long existing safeguard measures set out in Articles 112-3 of the EEA Agreement. The difference being that EFTA members, such as Norway, can invoke the measures unilaterally, were as Member States such as the UK cannot.

As Article 113 states: “For the Community, the safeguard measures shall be taken by the EC Commission”.

The UK will be reduced, as ever, to petitioning the Commission, providing evidence for them to consider, perhaps waiting for a positive decision to drop into their inbox, e-mail democracy anyone? Download democracy?

For now the prime minister has a draft declaration from the European Council, which states:

“The European Commission considers that the kind of information provided to it by the United Kingdom shows the type of exceptional situation that the proposed safeguard mechanism is intended to cover exists in the United Kingdom today. Accordingly, the United Kingdom would be justified in triggering the mechanism in the full expectation of obtaining approval.”

So the great achievement is to get a provisional statement that, if actioned, would amount to little more than a watered down version of an EEA Treaty that has been in place since 1992, and all this just to get some minor controls over the amount of British taxpayer money to be paid to citizens of other EU States, for a limited duration, and subject to several other limitations:

“The implementing act would authorise the Member State to limit the access of Union workers newly entering its labour market to in-work benefits for a total period of up to four years from the commencement of employment. The limitation should be graduated, from an initial complete exclusion but gradually increasing access to such benefits to take account of the growing connection of the worker with the labour market of the host Member State. The Council implementing act would have a limited duration and apply to EU workers newly entering its labour market during a period of [X] years, extendable for two successive periods of [Y] years and [Z] years”

The prime minster asked for four years and has failed to achieve it. These restrictions will only apply to new migrants, and will be time-limited.  Contrast that to the EEA countries ability to unilaterally suspend freedom of movement – see Articles 112/113 of the EEA agreement – when it is deemed to be causing undue strain, and it is clear just how woeful the safeguard measures we’ve been offered really are.

Our “emergency brake” is not a victory.

Not legally binding

The prime minster has told the media and the House of Commons that the draft deal is legally binding and in doing so has been knowingly dishonest.

He told the House:

“Finally, let me be absolutely clear about the legal status of these changes that are now on offer. People said we would never get something that was legally binding—but this plan, if agreed, will be exactly that. These changes will be binding in international law, and will be deposited at the UN. They cannot be changed without the unanimous agreement of every EU country—and that includes Britain. So when I said I wanted change that is legally binding and irreversible, that is what I have got. And, in key areas, treaty change is envisaged in these documents.”

In deliberately misleading the House, the prime minister has disgraced himself and his prestigious position. Let me be clear, the draft settlement is not legally binding, the Council is not able to make it so, and it will not be until the wording is included in full treaty revision, which the settlement itself states, and the prime minister even acknowledged in his statement to the House.

The heads of Member State governments acting outside the framework of the Treaties do not have the power to make agreements that impose legal obligations on the EU.

Moreover, any agreement they come to cannot be legally binding if the execution of the agreement depends on something outside their control. See Article 61 of the Vienna Convention on the Law of Treaties:

“A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.”

The prime minister reveals his dishonesty by contradicting himself; the fact that treaty change is necessary to make the settlement concrete means the provisions within it are not legally binding. We cannot be certain of the future treaty negotiations, and so the settlement is nothing but a political statement that does not bind the EU to any course of action.

EU federalist Andrew Duff foresaw this deception in November 2015, writing:

If the heads of government want to placate Cameron, they can promise to change the treaty in the future, but such a promise will be neither legally-binding nor irreversible.”

David Cameron now claims that his settlement is legally binding and irreversible, this is a lie.  He also claims that the draft deal represents “substantial reforms”, but there is nothing substantial about them, and even the use of the word “reform” is a stretch.


Ben is the Conservatives for Liberty Web Editor and a Brexit campaigner.  He blogs at The Sceptic Isle. Follow him on Twitter: @TheScepticIsle

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The views expressed in this article are that of the author and do not necessarily reflect the views of Conservatives for Liberty