There is much said and to be said about this Brexit business. But here I will deal here only with the continuation of the negotiations between now and the meeting of the European Council on 18-19 February.

On 2 February, the President of the European Council, Donald Tusk, published a letter and a Draft Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union, along with various supporting documents. The intention is to file the Decision with the UN as an agreement under international law. The Decision claims to be an ‘instrument for the interpretation’ of the EU treaties, and as such must be in conformity with those treaties. Any instance of non-conformity with the substance of the Treaty of Lisbon and the Decision will be disregarded by the EU institutions and condemned by the European Court of Justice.

The dilemma of treaty change

The Decision does not and cannot change EU primary law. There are, however, two references in the draft document in square brackets that provide for the insertion of specific items in the EU treaties ‘at the time of their next revision’. These are requested by the UK. The European Council will have to decide whether to agree to this ruse.

Although there is precedent for postulating future treaty change in this way, the Lisbon treaty has made the situation more complicated by depriving the member states of the exclusive right to amend the treaties. The Commission, European Parliament and national parliaments, through the instrument of the Convention, are now also a formal part of the constitutive processes of the Union: none of those players will be bound formally by the Decision of the Heads, and come the moment several might find they have serious political objections to it. The European Council knows that as soon as the treaties are opened up for revision there will be a major, long and complex constitutional negotiation whose main theme will be fiscal and political union. British exceptionalism may only play a minor subsidiary part in that exercise. But the strategic debate about the future of Europe has languished since Lisbon was signed in 2007, and appetite for its revival is still thin. Cameron’s early bluster that he was out singlehandedly to ‘reform’ the whole Union has been firmly rebuffed – hence Tusk advanced his low-key and limited proposal as a ‘good basis for a compromise’ on ‘a new settlement’ for the UK within the EU.

All or nothing?

Tusk’s letter asserts that ‘nothing is agreed until everything is agreed’. But can this be true? Or is it just a lazy cliché? Although the four Brexit elements may be welded together in the febrile imagination of the British prime minister, nothing connects them in a technical way. It would be perfectly possible for the European Council to agree on one or more but not all of the British demands. Would this cause David Cameron to storm out again in a huff as he did in December 2011? I doubt it.

‘Ceci n’est pas une pipe’

A third and deeply troubling matter in Tusk’s proposal is the attempted castration of the phrase ‘ever closer union of the peoples of Europe’. I have written elsewhere about the significance of this phrase to federalists. Whatever one’s inclinations, however, there can be no doubt about the historical importance of those words in the Union’s constitutional development, which are now elevated into the first article of the EU Treaties as the mission of the Union, predicating all that follows.

While the draft Decision rightly points out that the clause does not in itself confer competence on the Union and has not been used as a legal basis for secondary legislation, it then attempts to re-define the clause in a fashion that can only be regarded as peremptory. A lot of blah-blah, with no provenance, is suddenly inserted about what ever closer union might mean. But it is boldly asserted, without corroborating evidence, that the famous words are not ‘equivalent to the objective of political integration’, and ‘do not compel all Member States to aim for a common destination’. The draft continues: ‘The Treaties allow an evolution towards a deeper degree of integration among the Member States that share a vision of their common future, without this applying to other Member States. It is recognised that the UK, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the EU’.

Leaving aside the matter that ‘ever closer union’ appears in the UK’s accession treaty to the EU, and that the EU’s official membership criteria demand adherence to the ‘aims of political, economic and monetary union’, the draft Decision would render ‘ever closer union’ meaningless. Member states would be permitted to take different paths not to the same destination but to different destinations. As Guy Verhofstadt pointed out in the European Parliament (3 February), such a situation is surreal. Surrealism is fun, but it has not been to date a general principle of EU law. If the constitutional premise of the Union is to be revised, it must be revised according to the proper constitutional procedures and not via an interpretative instrument of international law.

Cameron wants a treaty change that would exempt the UK from the vocation of ‘ever closer union’. Although such an opt-out would relegate his country to second-class membership of the EU, and would be the cause of much grief in Britain, it is vital not to let Cameron jeopardise the whole European project for everyone else. Indeed, to be fair, he says he does not want that to happen. What the British government wants out of Europe is something uniquely British and not something uniformly European. That being rather selfish and hugely damaging to the collective European project, something better would be to insert a new clause in the Lisbon treaty that read:

‘Nothing in these Treaties commits any Member State to any measure of integration towards the ever closer union of the peoples of Europe to which that State has not consented in accordance with its own constitutional requirements’.

More card games

The draft Decision invents a new blocking mechanism for national parliaments for breaches of the federalist principle of subsidiarity. In addition to the existing ‘yellow card’ (where, within eight weeks, one third of national parliaments can cause the Commission to reconsider a draft law), and the ‘orange card’ (where if half the national parliaments object, the Commission has to re-submit its draft with justification, and the Council can strike down the law by a vote of 55%), there would now be a ‘red card’ waved by more than 55% of parliaments, within twelve weeks (in which case the draft law, if not amended by the Commission, would fall). One recalls that a proposal for a red card was rejected in the last Convention.

There are several problems with this proposal. First and foremost, the Council and national parliaments are supposed to work in tandem, and in all but most abnormal circumstances, do so. Ministers are directly accountable to their national parliaments: if 55% of the Council objects to a draft law it is most unlikely to proceed in any case (formally speaking, a qualified majority in the Council is made up of at least 55% of the states representing 65% of the population of the Union). Second, the yellow card has only been used twice (and only once properly) and the orange card never. Third, many national parliaments – including that one at Westminster – object to their being trammelled and bossed about by foreign national parliaments. Fourth, many national governments object to having to concede yet more power to national parliaments over EU policy, and are hostile to introducing more impediments to EU decision making. Ironically, it is the UK’s penchant for the liberalisation of services that provokes the most severe opposition in national parliaments. David Cameron might be more careful what he wishes for. Fifth, the proposed innovation, by giving the Council a free hand, carves out the European Parliament from the legislative procedure – and so is in breach of Article 294 TFEU. Sixth and lastly, the Decision would only commit the Council to the red card by way of a change of its own rules of procedure. The Decision does not seek to implicate either the Commission or the European Parliament. In any doubt, the Court of Justice will uphold the treaties and the prerogatives of the Parliament against the attempted use of this new red card. It is curious, to say the least, that Cameron and Tusk do not postulate a treaty change on this matter.

There are indeed problems with the present relationship between national parliaments and the European Union (on which I have written many times previously), but the red card procedure floated by Cameron and Tusk does not address them.

Welfare benefits: how much and for how long?

The draft agreement on the granting of social benefits to EU citizens living and/or working in an EU state other than their own is closer to resolution than might have been expected – not least because of recent judgments of the much-maligned Court of Justice. The Commission is ready to submit at least three legislative proposals to the Council and Parliament.

The key idea is for an emergency brake to be triggered by an appeal from a member state in difficulties from an influx of mobile EU citizens in which case the Commission could invite the Council, by means of an implementing act (Article 291 TFEU), to allow a state to restrict access to in-work benefits for a period (to be defined), extendable by two successive further periods (also to be defined). Although the draft Decision is silent on the matter, this proposal will need the consent of the European Parliament.

A single rule book no longer

The draft agreement on the future management of the banking union is notable in that it envisages two sets of banking rules, one uniform for the eurozone, the other less so for the non-euro states. Here again, important secondary legislation will be needed, in which the European Parliament has much expertise and a high level of political interest.

The UK claims the right to be able to suspend the ordinary legislative procedure on euro-related matters and to escalate the negotiations to the level of the European Council for a further discussion. It must be admitted, however, that delay is seldom in the interests of efficient crisis management in economic and monetary affairs, and the French, especially, have ideological objections to the interference of the English in euro business.

Facilitating coexistence

The draft Decision is the result of a provisional agreement between a relatively inexperienced Tusk and a relatively careless Cameron. Now the negotiations widen and deepen. Much needs to be clarified – and only the most important problematic issues have been mentioned here.

There is much at stake, not least in terms of mutual trust and solidarity among the member states. The constitutional order of the Union is delicate. The danger of disintegration comes from several sources at this critical time. The risk of the spread of the British disease to other less well-integrated member states is not negligible. The most that can be said for the draft agreement is its claim that it ‘will facilitate the coexistence between different perspectives’ of the British and the rest.

Their Brexit campaign has not been launched by the British with skill or consistency. Cameron’s government lacks unity and support at home. Relations between it and its EU partners have never been worse. The British need to realise that the government of the eurozone and the resolution of the refugee crisis are far more important than the future of Britain in Europe. While it is true that the rest of the EU wants Britain to remain a member, it is also true that every other member state has their price for accommodating Britain. Hammering home clear and durable legal texts that revise the system of EU governance in a democratic manner is a difficult task: if it is to be done at all, it must be done well, and good will has to be present on all sides.

The true nature of the Brexit exercise should not be ignored: the UK is the first country ever to seek a renegotiation of its terms of membership. It has not got all it wanted, although what it has been offered, at least by Tusk, is a significant reversal of the trend of integration with regard to freedom of movement and an enormous blow at ‘ever closer union’ aimed at recuperating national sovereignty. Rumours continue to swirl at Westminster about impending new domestic measures to limit the judicial authority of the European Court of Justice or to derogate from the EU Charter of Fundamental Rights. That way indeed lies Brexit.

If this really is the big moment when Britain chooses never to be at the heart of Europe, it is also a grave one. At the very least, nothing should be enacted by the rest of the EU until the British voters have delivered a positive referendum result – although if anyone in Britain knows what they are really letting themselves in for is anyone’s guess.

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Author : Andrew Duff