The UK already enjoys a special position within the EU. Andrew Duff explains why the Tories’ renegotiation demands may simply be impossible.
Andrew Duff is a Liberal Democrat politician and a former member of the European Parliament.
The new Conservative government is hard at work cobbling together a catalogue of demands it soon must make on the European Union. The package has to be unleashed no later than 25 June, when David Cameron makes his appearance at the European Council meeting in Brussels. Jean-Claude Juncker, President of the European Commission, has already said how much he looks forward to getting the detail of what is heralded as a renegotiation of the British terms of EU membership.
We will comment, with many others, on the catalogue when we see it. In the meantime, here are nine tips to the Conservatives which, given the level of ignorance in London about how the EU works, may be helpful.
1. The next exercise in EU treaty change will not start until a new Convention is called, and that will not be until after the French and German elections in 2017. So in terms of primary law, the most the UK can hope for now is a promissory note in the form of a draft Putative Protocol. There is precedent for this, not all of it bad.
2. To be credible however, such an initiative must respect all the general principles of EU law. These include keeping the term “ever closer union” (unless it were agreed to change it to “federal union”). Contrary to popular misconceptions, the famous phrase is not simply preambular, but appears in Article 1 of the Treaty on European Union: it defines the very mission of the Union and is the basis on which its values, principles and political objectives are laid.
3. The EU treaties insist that within the scope of the exercise of the competences conferred by the states on the Union there shall be no discrimination on the grounds of nationality, that all EU citizens shall be treated equally and that all EU citizens have the right of freedom of movement throughout the Union. So anything done to curb the welfare rights of non-British EU citizens who come to the UK to make their way in the world needs to be fair, just and reasonable.
4. The precise regulation of the rights of migrant workers and their families are established in secondary legislation that the UK, like any other state, is obliged to respect. Such EU laws can and often are changed, but the process is parliamentary (and therefore can be lengthy) involving the initiative of the Commission and enactment by the Council and European Parliament, both acting by qualified majority vote. A cosy agreement between prime ministers does not do the trick. If serious about “renegotiation”, the Tories really need to start making the case for it with MEPs.
5. Any move to curb the powers of the European Court of Human Rights in Strasbourg impacts directly on the question of EU membership. Every member state is obliged to respect the European Convention on Human Rights as a general principle of EU law; the EU’s own Charter of Fundamental Rights, binding in full on the UK, is based on the ECHR; and the EU is itself in the process of seeking to accede to the ECHR. There is therefore no escape for the UK (if it stays in the EU) from the external supervision of the Strasbourg court or from judicial review by the European Court of Justice in Luxembourg.
6. Despite speculation in Tory circles, there is no longer such a thing as the infamous “Luxembourg compromise” which allowed France under De Gaulle to veto whatever he wanted. Nor is there the slightest chance that the UK will be given such a veto power.
7. National parliaments already have the device of yellow, orange and red cards which can be waved to amend, delay or halt draft EU legislation. The fact that national parliaments have seldom or never seen fit to use these devices may be why nobody at Westminster seems to know about them. National MPs also have direct powers over EU spending and constitutional change, including enlargement.
8. The UK is already a very semi-detached member of the EU. It is not in the euro or the Schengen free travel area; it can choose to opt out of all EU policies in the area of freedom, security and justice; it has excluded itself from the banking union; and it has ceased to play a significant part in the EU’s foreign policy, security and defence. The scope for further opt-outs is minimal. The UK has already tried the patience of its EU partners to the limit. An aggressive “renegotiation” will provoke a backlash. Brexit will be regretted by the rest of the Union, but not prevented.
9. Whatever Cameron and Osborne bring back from Brussels will be attacked by the right for being too little and criticised by the left for being spurious. The Tories united only won 37% of the popular vote last week: where will the Tory party rent asunder – as it surely will be in the referendum campaign – hope to garner extra votes? Maybe Lynton Crosby knows.