Making the Brexit deal ‘formal, legally-binding and irreversible’

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Andrew Duff

Andrew Duff

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, writes Andrew Duff.

Andrew Duff was MEP for the British Liberal Democrat party from 1999 to 2014, prominent member of the constitutional affairs committee in Parliament and prominent voice within the European liberal ALDE family.

Whatever one thinks (and one does) about the British renegotiation of its terms of EU membership, one can only marvel at the prime minister’s bravado when he insists on the changes being ‘formal, legally-binding and irreversible’. Nobody expected David Cameron to be so categorical when he embarked on his long-anticipated speech and ‘Dear Donald’ letter, eventually delivered on 10 November. Surely somebody warned him that to demand something so trenchant would pose huge legal problems? 

Everyone now knows that treaty change is impossible before the British referendum. So how can Cameron’s concrete demand for a ‘formal, legally-binding and irreversible’ British exemption from Article 1 TEU (‘ever closer union’) be met? Other demands of his will also entail treaty revision but the apparent need to break away from the EU’s historic mission seems to be his most important.

Whatever it contains, Cameron’s renegotiated package has to look better than it really is. He knows he faces a scornful reception in the House of Commons and much of the British media. Any empty boasting about a ‘formal, legally-binding and irreversible’ triumph will only stoke the No vote. The Brexit deal will also need to survive a preliminary ruling by European Court of Justice on whether it falls foul of the UK’s treaty obligations. So it had better be good. 

The prime minister says he is looking for arrangements of the type granted to Denmark in 2002 and to Ireland in 2009. He will shortly discover that those examples are not real precedents for Brexit, for two reasons. First, because the Brits are seeking actually to change the Lisbon treaty that they have signed and ratified, and is already in force, while the Danes and Irish were trying only to ratify treaties they had signed in order to bring them into force. In other words, whereas Denmark and Ireland were trying to honour their treaty commitments in spite of referendum slip-ups, the UK is promoting a referendum expressly in order to breach its treaty commitment. Quite frankly, a promissory note issued by the European Council to allow the UK in future to breach the treaties is unlikely to go down well in the EU’s constitutional courts. 

But there is another argument as to why a formal promise of the European Council to change the treaty in the future – even if put into a Council decision and tabled at the UN – can never be ‘legally-binding and irreversible’. This is because the Lisbon treaty has changed the constitutive procedures of the EU by adding in the wild card of the Convention (Article 48(3) TEU). The Convention is made up of the European Council, the Commission, the European Parliament and national parliaments. Its job is to propose amendments of the treaties to an intergovernmental conference. So while the member states can still lay claim to being the ultimate ‘masters of the treaties’, their prerogative is not unqualified: they cannot change the treaty, or even promise to change the treaty, left to their own devices. And it’s the European Parliament, not the European Council, which gets to decide on whether to call a Convention.

If the heads of government want to placate Cameron, therefore, they can promise formally to change the treaty in the future, but such a promise will be neither legally-binding, nor irreversible. The European Council cannot guarantee an explicit treaty amendment without the agreement of the European Parliament not to insist on the calling of a Convention. Parliament can only agree not to call a Convention ‘should this not be justified by the extent of the proposed amendments’. There is no way that the UK’s intended breach of its membership obligations does not justify a Convention several times over. MEPs will never lay themselves open to legal challenge and political ridicule by surrendering their prerogatives over such major constitutional disruption. 

So if the European Council is minded to make a binding promise to the British it will have to charge the European Commission to initiate a proposed revision of the treaties under Article 48(2) once, and only if, the UK has voted to remain in the EU. A strict timetable should be laid down for this to happen – say, within one year of the referendum. 

The President of the Commission, being a member of the European Council, can indeed be bound by a decision of the European Council. He is the only one who can instrumentalise the collective promise of the European Council. According to Article 48(2) it is only the Commission, the Parliament or a member state government (and not the European Council) who can submit to the Council proposals for the amendment of the treaties. 

Such a pragmatic formula would likely to be accepted by the Court of Justice as a reasonable fix in the circumstances, being as near as possible to legally-binding without actually having changed the treaties. It should also be enough to give Cameron the chance to persuade most Brits to stay in the Union. Jean-Claude Juncker should be happy to oblige. The European Parliament will welcome the breaking of the deadlock on treaty change, about which it will shortly make its own proposals.

A longer version of this article is available on the Verfassungsblog on Matters Constitutional.

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