What did David Cameron negotiate?
After lengthy negotiations in February, David Cameron struck a deal that outlines the key steps towards the reformed EU we are promised, should we vote to remain, and that the Prime Minister claims will give Britain “special status” within the 28-nation bloc. The deal is commonly split into four sections: sovereignty, migrants and welfare, economic governance and competitiveness. Here is a brief overview of what the deal includes.
One of the EU’s founding ambitions was to forge an “ever closer union” between its people and member states, both economically and politically. In the wake of the Euro crisis, the notion that further integration is an unequivocal good idea was brought into question, amid increasing concerns over the commonly termed one-size-fits-all policy. Cameron’s primary objective in this regard was to give Britain the chance to opt out of “ever-closer-union” and avoid further political integration. His second objective was a call for a new arrangement which allowed parliaments acting in unison to stop unwanted legislative proposals. Finally, Cameron called for a full EU commitment to subsidiarity – which means that decisions should take place at a national level rather than at an EU level wherever possible. Two main things came out of the negotiations: firstly, a commitment to write Britain’s exemption from “ever closer union” into EU treaties, and secondly, a red-card mechanism which allows member states to collectively block or veto any proposals from the EU Commission.
How effective the deal is at addressing the objectives is up for debate. The red card for example, will be introduced in addition to the existing yellow and orange card systems. Not liking a law is not enough – all three cards can only be used over subsidiarity concerns, meaning the objection must be that the law should be made on a national rather than an EU level. The yellow card requires the support of 10 national parliaments, at which point the Commission has to reconsider but can ultimately go ahead anyway. The orange card requires 15 national parliaments, along with – if the Commission refuses to drop the proposal – the support of either 16 EU Council governments or a majority of European Parliament MEPs to be effective. To date, the yellow card has been used twice and the orange zero times. Critics would suggest this is because they are unlikely to block anything that would not be blocked under standard rules – which require either 13 governments or a majority of MEPs to block a draft law. Arguably then, the red card – requiring more support than the yellow and orange cards, may not achieve a great deal. Especially when it cannot automatically block a law, only force the Council to shelve it or amend it according to the objections; and when the question of whether or not the changes adequately accommodate the concerns is the decision of the council itself. On the other hand, whilst governments currently have a say in EU matters, the red card might be said to give national parliaments like the House of Commons more control over what their governments are fighting for in EU negotiations.
On subsidiarity, Cameron’s call for “Europe where necessary, national where possible” seems to have had an impact. The deal outlines a new focus on whether the legislation in question has “transnational aspects” or not, potentially making this more of a consideration during negotiations. In other words, the less “transnational” the subject the more likely it will be considered reasonable to object on grounds of subsidiarity. The existence of “transnational aspects” is not made an absolute requirement for action at a European level, however.
Migrants and Welfare
The Conservative manifesto outlined the objective to ensure that both migrants claiming tax credits and child benefit, and migrants seeking consideration for social housing must have lived and contributed to Britain for a minimum of four years. In addition, it pledged to end the ability of EU jobseekers to claim any job-seeking benefits whatsoever, and to introduce a requirement for EU jobseekers to leave if they do not find work in six months.
The main response to this in the deal is the suggestion of an “emergency brake” on in-work benefits for migrants. The measure doesn’t go as far as was intended by the Prime Minister, as directly limiting provision of benefits to EU migrants would go against the freedom of movement and right to equal treatment rules enshrined in the single market. What it does, is allow a country to signal to the EU that they have experienced an inflow of migrants of “exceptional magnitude”, and that it has affected “essential aspects of its social security system”, or leads to problems in its labour market, or is putting “excessive pressure” on public services. Permission would be required from the EU, at which point the country would be allowed to start phasing in the provision of in-work benefits for new migrants over the first four years of their residency. This would not affect migrants already living there, and the brake can be applied for up to seven years after it has been triggered. The “emergency brake” is a suggestion only at this point. Predicated firstly on a vote to remain, it would then need to go through normal EU lawmaking processes, meaning the support of both the EU Council and the EU Parliament would need to be earned. To trigger the brake, the European Commission would have to put a proposal to the EU Council on the country’s behalf, the Council would then have to give its approval. That being said, the EU Commission has publically stated that it feels Britain would be justified in triggering the brake should we vote to remain in the EU.
Another part of the deal called for “stronger powers to deport criminals and stop them coming back, as well as preventing entry in the first place”. In effect, this will be addressed by adding to the exceptions to the EU rule that citizens can work in any country they choose. This will allow countries to deport people whose behaviour is “likely to represent a genuine and serious threat to public policy or security”, and will shift focus from looking at present conduct of individuals to looking more towards their past.
Following Cameron’s key theme of ending “the abuse of free movement”, the deal sets out how to make it harder for non-EU family members of EU citizens to stay in the UK. This is to put an end to “the fact that it is easier for an EU citizen to bring a non-EU spouse to the UK than it is for a British citizen to do the same”. Changes to EU law will be needed to make this happen, and the proposed changes may still be objected to on the grounds of breaching EU human rights law.
Migration and welfare is the area where Cameron had to compromise the most, facing strong opposition from central European countries and coming up against the rules of single market. One objective was to put a stop to the exporting of child benefits back home by parents who move to work in another country. These cannot be stopped based on a principle of non-discrimination and the right to equal access in terms of taxation and social benefit advantages that the single market stipulates. What the deal does include, is the ability to alter the amount of the payment depending on the standard of living and provision child benefits where the child lives. The legalities and practicalities of doing this however, are not clear. This could amount to discrimination based on nationality, which would not be within the rules of EU treaties. Even if it is not deemed to be discriminatory, whether or not the change is “justified” or not would be up to the EU court. The court could decide for example, that people are being disadvantaged as a result of using their right to free movement. It would be a complex and moral quandary-ridden process to say the least. Furthermore, this change should do little to quell concerns over the sheer number of workers entering the country, and numerous studies indicate that EU citizens mostly come to work rather than take advantage of social benefits.
The thrust of this part of the negotiations was to get an explicit recognition that the Euro is not the only currency in the European Union. The aim was both to safeguard against steps to further financial union being imposed on non-Eurozone members and to ensure the UK will not have to contribute to Eurozone bailouts. Cameron was fairly successful in this regard, the deal guarantees that countries outside the Eurozone will not have to fund Eurozone bailouts and will be reimbursed for any funds used to prop the Euro. Also included is a right to allow any member to raise concerns about the impact of Eurozone decisions for urgent discussion in the European Council. However, In light of the fact that the EU court has already banned preferential treatment of countries using the Euro, and that non-Eurozone states have been effectively exempted from Eurozone bailouts since the third one for Greece in 2015, this aspect of the deal is largely symbolic. There was some from France on the issue of financial regulation. Despite the recognition of multiple currencies, the French made certain this did not mean that Britain would win any “exceptions to the rules of the EU”, especially with regards to financial institutions and the city.
This final topic – being the least controversial of the government’s demands, was sparsely covered. The intention was simply to set a target for the reduction of the “burden” of excessive regulation on business and to continue the expansion of the single market in a way which promotes competition. The deal included a promise to establish “feasible burden reduction targets in key sectors, with commitments by EU institutions and EU member states”. So, Mr Cameron got everything he wished for with regards to red tape, but similar promises have been made before that have not gone on to reflect reality. Furthermore, boosting the competitiveness of the single market has always been one of the EU’s and its member states’ key priorities. So although the line on the burden of regulation was included, it is up for debate as to whether it would initiate any substantive action we wouldn’t have seen otherwise.
Is the Deal Legally Binding?
Like many in this debate, this is almost an unanswerable question. There are several different parts to the deal, all taking different legal forms and requiring different processes to come into law.
The main part of the deal itself – the “Decision of the Heads of State or Government”, which includes the information about “ever closer union” and the red card system, actually concerns international law rather than EU law. The government intends to register the decision as an international treaty, which would require the consent of all EU countries and ratification from national parliaments. When declared legally binding by European leaders this part of the deal would become binding under international law, in that the UK government would have to consent before it could be amended or repealed. The decision can include legal obligations for EU members, but EU law would take precedence in the event of any conflict. Although, because it would not be part of EU law, no country could challenge it through EU channels. In short, there is a small risk that this part of the deal will not become international law; the mechanisms through which the changes would take effect and the extent of this effect however, are unclear.
Benefit changes – the “emergency brake”, the changes relating to non-EU family members of EU citizens and the changes to child benefits – will all require EU laws to be passed or changed. The process starts with the EU Commission drawing up proposals; the Commission is not forced to do this but the deal contains two declarations from the Commission outlining its intentions to do so. The Commission says it will propose these 3 laws following a vote to remain. For these proposals to be passed they need a qualified majority vote within the EU Council and a majority vote in the European Parliament. The deal itself does not affect this process, the ministers in the council could decide to support only two of the three proposals, or none. Similarly, the parliament may have objections to some or all of the laws proposed in the deal, but this may only become clearer as we approach voting day. There is the further issue of legal challenges to the EU court. Any of the proposed changes could be objected to on a legal basis. Some experts have determined that the change most vulnerable to this is the “emergency brake”. Aside from court challenges, in principle, there is a possibility the new legislation could be revoked or repealed after being passed as the UK could not veto such a decision. In reality, the statements from the Commission in the deal and the verbal support from other governments should mean this is highly unlikely.
Technically speaking, the deal is binding, but there are significant caveats. The big changes – the passing/changing of EU laws and treaty changes – must follow independent procedures after a vote to remain, each coming with new negotiations and potential sticking points. The benefits changes in particular may face opposition. Even if passed, the enforceability and effectiveness of the new laws is questionable.
Below is a table setting out the legalities of the various parts of the deal. The table was produced by Professor of EU Law and Human Rights Law at the University of Essex, Steve Peers, and the always excellent fact-checking charity www.fullfact.org