On Thursday I gave evidence to the Scottish Parliament’s European and External Relations Committee on the forthcoming EU referendum. My written evidence is available here. Reflecting on the session itself, I’d briefly make the following points.
A sliding scale of difficulty
There are several ways that changes to the relationship between the UK and the EU, and/or the way in which the EU works, might be made. They can be thought of on a sliding scale of difficulty as follows (from least difficult to most difficult):
- Doing things differently here at home. Some of the issues surrounding the perceived abuse of the UK welfare system by EU migrants, for example, could be mitigated by enforcing the minimum wage, clamping down on agencies that only advertise abroad, requiring English language proficiency for certain jobs, doing more to help communities in which a large number of migrants have settled, etc.
- Amending existing EU regulations or directives, or passing new ones. Not an easy task this would require assembling the support of a majority of Members of the European Parliament and a qualified majority of Member States voting in the Council of the European Union.
- Amending the EU Treaties. The most difficult as this would require the unanimous consent of all 28 Member States and an arduous process of national ratification in each of those countries. Even if the so-called simplified revision procedure was used it would still require unanimity and domestic ratification in all 28 Member States.
With that in mind, let’s turn our attention to the following question …
What does the Prime Minister want?
The Prime Minister has twisted and turned over the years as to what his main priorities are. The focus of his Bloomberg Speech, delivered in January 2013 was quite different to that of his November 2014 speech. Some of the Prime Minister’s key demands seem to be:
- A UK opt-out from the principle of ‘ever-closer union’.
- A stronger role for national parliaments in blocking EU legislation.
- Safeguards for non-Eurozone member states in voting in the Council of the European Union.
- An opt-out from some EU employment law, including the Working Time Directive.
- Much more general and imprecise statements about making the EU less bossy, less bureaucratic, and less intrusive in terms of regulations, etc. – which I don’t discuss below because they are so imprecise.
The phrase ‘ever-closer union’ appears in the preamble to the Treaty and has no direct legal effect. Changing the wording of the preamble would require unanimity and it’s simply not clear what difference it would make in practice. What the Prime Minister may want is a clear recognition, at the front of the Treaties, that the EU no longer has to move forward in unison. Indeed at the June 2014 European Council summit all 28 heads of state/government agreed to the following text:
The European Council noted that the concept of ever-closer union allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do not want to deepen any more.
The Prime Minister may be able to get that statement reaffirmed, with a commitment to insert it into the preamble whenever the next Treaty change naturally arises. It’s a fudge but it might just be enough to ‘sell’ to the public.
The Prime Minister also wants a stronger role for national parliaments to block proposed EU legislation (the Foreign Secretary made clear just today that this would need to be a group of parliaments and that the idea that the UK parliament alone, or any other parliament, could unilaterally block proposals is a non-starter). The EU already operates a system whereby a group of national parliaments can collectively object to a proposal from the European Commission if they feel it violates the principle of subsidiarity (the so-called yellow and orange card system). It’s a little-used system. The Prime Minister seems to want to stregthen it so that a sufficient number of national parliaments can actually kill a Commission proposal (so, in effect, creating a red card system). Formally changing the way the ‘card’ system operates would require Treaty change. Again, a fudge could be found if the Commission president was prepared to agree to the principle that his Commissioners would remove a proposal if, say, a third of national parliaments objected to it.
Given that the Eurozone crisis has prompted closer coordination between those EU Member States that use the currency, a concern has arisen that in the future EU laws might increasingly serve the interests of Eurozone members over the interests of non-Eurozone members. The Prime Minister has suggested that the system of voting in the Council (where the Member States meet) needs to be changed so that a majority of both Eurozone and non-Eurozone states are required. There is a precedent for this in the EU. When the European Banking Authority was established it was agreed that such a double majority would be required in the area of financial regulation. If the Prime Minister wishes a similar provision to apply to all EU single market legislation then Treaty change will likely be required.
The Working Time Directive has long been a bone of contention for the Conservatives. There remains a lack of specificity about what the government might seek in this area. Suffice it to say that if the desire is to secure opt-outs from any existing parts of EU employment law then, once again, Treaty change would seem to be required.
Despite the above, over recent weeks and months it has become clear that …
Welfare is the nub of the issue
I say that based on the Prime Minister’s public statements, media appearances (and here), and the 2015 Conservative party manifesto (p. 30, not in the section on Europe interestingly). More specifically the Prime Minister is committed to changing how EU migrants access the UK welfare system as a way of curbing immigration to the UK from the EU and creating what he sees as a ‘fairer’ system. What exactly does he mean by this?
It remains hard to tell. But one thing that the Prime Minister has mentioned repeatedly – and the most headline catching proposal that he’s yet to suggest – is restricting access by EU citizens to tax credits, housing benefit, and other forms of social assistance for four years. I know nobody who has seriously studied EU law (myself included) who believes that is realistic. It would fundamentally undermine the principle of free movement of workers and the principle of equal treatment enshrined in the EU Treaties. Denying such provision to EU citizens who are not workers, jobseekers, or former workers is possible given the EU Court’s ruling in the Dano case in 2014 (the case that has come to be called the ‘benefit tourism’ case). But to deny them to EU migrant workers who may have been working and paying taxes in the UK for nearly four years is plain and simple discrimination.
Many of the Prime Minister’s other suggestions – removing EU migrants who fail to find employment; changing the rules under which family members of EU migrants who aren’t themselves EU citizens can move freely; strengthening measures to deport citizens of other EU states who are criminals; ensuring that child benefit is not paid to EU workers whose children remain outside of the UK – would also require Treaty amendment to ensure that they cannot be challenged at the Court of Justice. It is essential to understand the relationship between EU regulations and directives, the EU Treaties, and the Court. Amending regulations and directives, or passing new ones, might not be sufficient if they violate certain provisions of the Treaty. Eventually somebody will bring a case against the UK government alleging that some new rule negotiated by Cameron breaches their rights. The Court could, using its power as interpreter of the Treaties, rule new or amended regulations and/or directives illegal. So, to safeguard changes, Treaty change would be recommended.
And what about the Scottish dimension? I’ll return to that in a follow-up post.
__________
Daniel Kenealy is a Lecturer in Public Policy at the University of Edinburgh Academy of Government.
Edinburgh_AoG
Academy of Government @ Edinburgh University 
Pingback: The UK’s coming EU referendum (2 of 2) | Academy of Government @ Edinburgh University