EU referendums and renegotiations

Maria Kendrick

The last referendum on Britain’s membership of the European Union was forty years ago, neither within the memory nor the lifetime of a significant number of those eligible to vote this time around – which notably will not include the youngest, 16 and 17 year olds. Since then, dissatisfaction with the European Union has been evident amongst its citizens. The Economist recently dated this attitudinal change back to at least 1992, when the French narrowly approved the Treaty of Maastricht in a referendum.  One of the many explanations proffered for this change is the impact of political populists, such as UKIP, in influencing voters. In the same article in The Economist Catherine Fieschi, Director of Counterpoint, is identified as suggesting that a consequence of the rise of populists is the increase in “Coliseum Politics” such as the grand gesture referendum. Although UKIP has not achieved any great success in Parliamentary elections, it appears to have achieved the credit (or blame depending on your point of view) for causing concern amongst the Conservative Party of possible inroads into Tory constituencies and for making the question of Europe loom large, again, in the Conservative Party itself. Hence David Cameron’s Bloomberg speech and subsequent election manifesto promises of a referendum and legislation to guarantee it is conducted.

The populist party or Eurosceptic argument, which is now well versed, centres around a dislike – so it would say – of being dictated to by Brussels and paying a hefty budget contribution which the British taxpayer can ill afford, only to be subject to European laws it does not want. Despite the reticent tone of history, for example from Professor John Mackitosh MP who appeared in the BBC’s referendum results coverage in 1975, to opine that referenda are contrary to the parliamentary system and are therefore unfortunate. Even in the recent House of Commons debates on 7 September 2015 on the European Union Referendum Bill itself, a well known constitutional law historian and academic was quoted as saying that referendums are used where it is thought that the Parliamentary system cannot provide the required level of legitimacy. Paradoxically, both politicians and lawyers alike are citing the preservation of Parliamentary sovereignty as the reason for supporting Brexit whilst at the same time backing the use of a referendum because of a lack of legitimacy in the parliamentary system.

Whatever the political motivation, the election of a majority Conservative government has precipitated developments in the legal situation. The European Union Referendum Bill was swiftly published following the Queen’s Speech. It initially worded the question as Should the United Kingdom remain a member of the European Union? This was considered to be too one sided for the Electoral Commission, which has proposed that the question be changed toShould the United Kingdom remain a member of the European Union or leave the European Union? to which its suggested options for responses are “Remain a member of the European Union” or “Leave the European Union”listed in that order. This wording was subsequently accepted by the Prime Minister. The ‘yes’ and ‘no’ camps have become the ‘remain’ and ‘leave’ camps.

In addition to the focus on the wording and layout of the referendum question some of the legal technicalities of the provisions of the European Union Referendum Bill have developed a particular significance of their own. It is not difficult to see why. In 1975 the referendum result was an overwhelming ‘Yes’ to the union, with a majority vote of 70% in favour of continued membership being returned in most regions throughout the UK. The ‘leave’ camp appear convinced that this was due to the large disparity in the capabilities,- or rather, resources – between themselves and the opposing campaign. Both the establishment and big business, which then acted in cohort in support of Britain’s membership, are reported to have outspent the ‘no’ campaign by twelve to one.  A concern to avoid history repeating itself has prompted the fervour of debate on purdah, which has been seen recently in the House of Commons. The ‘leave’ camp expressed concern that if the legislation allowed them to be outspent again, they would surely lose and this would undermine the public’s faith in the outcome. The role of BBC journalists in asking businessmen and women questions (even if inadvertently) in interviews on subjects unrelated to Europe as to the future of their business should there be a vote to leave the EU was discussed by John Redwood in an impassioned speech. Essentially, any possibility of an implied use of government resources in the purdah period (up to 28 days before polling day), however tenuous, has been criticised for compromising the legitimacy of the result. Those in the ‘leave’ camp – comprising MPs from all political parties – were keen, if not to have the law drafted in their favour, to avoid having it drafted in their disfavour – all in the name of democracy of course. When it came to it, the government was significantly outvoted on this issue.

Not to be outdone, the ‘remain’ camp have been accused of trying to ‘pull a fast one’ with the provisions of the Bill. The government tabled an amendment to the European Union Referendum Bill for debate in the House of Commons on 7 September 2015, which would purportedly allow a snap referendum to be called with a campaign duration of four weeks rather than the customary ten weeks. The amendment was reported as enabling the government to ‘force the Electoral Commission to decide who will run the official ‘yes’ and ‘no’ campaigns long before Cameron names the date of the referendum’. We shall see what, if anything, becomes of these and other amendments (such as the ‘double lock’ majority suggested by the SNP) by the time the Bill receives Royal Assent.

But what will be the shape of the European Union on offer? In the press conference following their recent meeting David Cameron and Angela Merkel used a few of the well-worn phrases associated with theories of differentiated integration: ‘flexibility’ and a ‘two-speed’ Europe. The German Chancellor specifically cited the Euro-group example to demonstrate that in her view we have a two-speed Europe; those Member States which are party to EMU travel at a different speed to those which are not. This is not something which David Cameron has discouraged. The Guardian has recently published articles suggesting that the Eurozone group may push for reforms themselves which will require Treaty change, therefore taking this controversial item off the PM’s renegotiation shopping list.

Certainty as to the contents of the rest of that list appears to evade all but the other EU leaders with whom David Cameron has been visiting over recent months. A plucky amendment to the EU Referendum Bill was tabled by Harriet Harman (amongst others), which would provide a legal requirement for the government to publish a white paper ten weeks before the date of the referendum, outlining the terms of any renegotiation between the United Kingdom and the EU and the consequences for the UK of leaving the EU. Prior to this amendment being tabled The Sunday Timessuggested that David Cameron’s renegotiation settlement wish list contained four main areas: ‘reforming migrant benefits, ditching the EU quest for “ever-closer union”, protecting countries such as Britain outside the Eurozone, and seeking more power for national parliaments to block EU laws’. It has since been reported that on his travels around Europe Cameron has encountered opposition and has consequently given up demanding British opt-outs from EU employment regulations. Whether this transpires to be the case only time will tell, especially as Merkel has already stated that she will keep an eye on the legal issues in the areas under renegotiation. The Chancellor was presumably referring to the recent Dano case which will undoubtedly inform negotiations on migrant benefits. As Philip Hammond has commented that it is likely that Treaty change will be required in order to protect a renegotiated settlement from an adverse judgment in the European Courts, she is not the only one with an eye on the judges.

Assuming David Cameron is politically successful and in line with the Chancellor’s preferred order of play once the substance is agreed the issue will be how to legally accommodate the settlement reached, presumably before it is put to a referendum in Britain. A favourite method of the UK is the Protocol opt-out with an option to opt-back-in to measures which are palatable to back-benchers. It should be stated that the Union has always encompassed these arrangements quite resiliently. Although the desire to restrict access to benefits for EU migrants is controversial because it is seen as discriminatory this may actually prove not too difficult to accommodate using the Protocol mechanism. Just look at Denmark’s Protocol on second homes, which for many years has provided a permanent restriction on non-Danish nationals buying second homes in Denmark.

However, with Treaty change being so politically unpopular, a new Protocol opt-out, and indeed a new Protocol, would require at least an amendment to the Treaty and is therefore likely to precipitate constitutional issues in other Member States. Steve Peers has suggested that a possible method for protecting Britain outside the Eurozone would be to make changes to EU secondary law in a manner which would have a similar impact to a Treaty amendment by amending a Decision on the voting rules in Council. It is respectfully suggested that this method does not provide sufficient security for the provisions of a renegotiated package nor dispose of the need for Treaty amendment in the long run. Rather, assuming that the Prime Minister achieves agreement for the UK to opt-out of some EU law areas and / or concedes that the Eurozone Member States can integrate further, implementing the contents of a renegotiated package could be achieved by using the legal mechanisms already contained within the Treaty. The enhanced cooperation mechanism (contained primarily in Article 20 TEU and Articles 326 to 334 TFEU) permits a group of at least nine Member States to make a proposal for legislation that would apply only to them. Once this proposal is authorised (the role of the Council and the Commission in this regard varies according to the subject matter of the proposal) and a qualified majority of the Member States agree to the enhanced cooperation mechanism being used – which it is reasonable to assume that they would because the Member States and EU institutions will have been privy to the negotiations which led to the conclusion of the agreement and presumably approve of or be willing to acquiesce to its contents – the Member States that wish to can integrate further on matters without the UK going along with them. Using this mechanism would also enable the UK to be included in the deliberations on a legislative proposal, but chose not to join or be bound by it if other Member States wish to proceed. Crucially, the UK’s position is less exposed because the terms of Article 327 TFEU state that ‘Any enhanced cooperation shall respect the competences, rights and obligations of those Member States which do not participate in it’. There is also an option to join in at a later date if the UK so decides.

Those in the ‘no’ or ‘leave’ camp may be dissatisfied with the status quo of the UK’s membership of the EU and may not approve any renegotiated settlement David Cameron is able to achieve. However, the consequence of their position being followed through is to choose to have a renegotiated withdrawal under Article 50 TEU, which is prescribed to take an optimistic two years and can only be extended by a unanimous vote by the Member States in the European Council. An Article 50 TEU withdrawal settlement may not allow the UK to make use of the mechanisms of differentiated integration which would be, and indeed are currently, available to the UK under the existing Treaties. Those who choose the withdrawal option ought to heed the following warning: exit from the European Union may not achieve the level of ‘independence’ from Brussels that is sought because EU law is pervasive and inescapable, no EU trade deal will be for free and if history has taught us anything it is that settlements that do not attract the populist vote tend to be more tastefully repackaged. It will therefore be interesting to see which side ‘wins’ the battle over the amendments to the European Union Referendum Bill. On to the House of Lords.

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