Key points on David Cameron’s omnishambles deal

Even if everything in this agreement is delivered, it does not affect the supremacy of EU law and the European Court of Justice (ECJ) will remain in charge of everything that it was in charge of before the deal. It does not affect the ECJ’s ability to use the Charter of Fundamental Rights to expand Brussels’ power. It will not restore the UK’s ability to control its borders or make its own trade deals.

There is essentially no change to the long-standing rules on free movement of people and no end to the permanent Eurozone structural majority. All David Cameron’s major promises on the subject of migrant benefits have failed to materialise (such as EU jobseekers having a job before arriving and removing people who fail to find jobs). The UK does not control its so-called emergency brake - Brussels does. The benefits changes actually incentivise people to stay for longer. He has not delivered on his promise of no benefits for four years. The ECJ will decide how the benefits deal and emergency brake are actually implemented.

There will be no Treaty change before the referendum. Depositing the agreement with the United Nations is a gimmick with no legal force. As William Hague has admitted himself, the so-called ‘red card’ system is a useless mechanism.

This deal is ineffectual tinkering. It does not deliver the ‘fundamental reform’ of the EU and the UK’s relationship with it that David Cameron promised the country. Although it is likely that there will be further gimmicks announced to change domestic law (such as a new ‘constitutional court’ like Germany’s) it is already clear that the safer choice for Britain is to Vote Leave, take control, and spend our money on our priorities.

1.No Treaty change, no legal force for the agreement

The Prime Minister once spoke of ‘treaty change that I’ll be putting in place before the referendum’ (Daily Telegraph, 5 January 2014, link). This promise has been ditched. There will be no Treaty change before the referendum, as Philip Hammond has admitted (Guardian, 18 January 2016,link). We are being told the political equivalent of ‘the cheque’s in the post’. Any future Treaty change will require the agreement of all 28 governments that may be led by different people to those now in charge. This agreement cannot bind the process of a future Intergovernmental Conference creating a new Treaty.   

The draft agreement is subject to the EU Treaties in international law.

  • The agreement states that it is ‘in conformity with the Treaties’. Article 30 of the Vienna Convention on the Law of Treaties states: ‘When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail’ (Vienna Convention on the Law of Treaties, 23 May 1969, link). As a matter of international law, the EU Treaties will therefore take precedence over the agreement.

The EU has ignored previous such agreements and will do the same this time.

  • A 1992 Decision concerning Denmark promised that EU citizenship would ‘not in any way take the place of national citizenship. The question whether an individual possesses the nationality of a Member State will be settled solely by reference to the national law of the Member State concerned’ (European Council, December 1992, link).

  • In 2001, the European Court of Justice (ECJ) declared ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’ (Grzelczyk [2001] ECR I-6193, para [31], link).

  • In 2010, the ECJ ruled ‘Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law’ (Rottmann [2010] ECR I-1449, link).

The Prime Minister’s claim that registering his deal with the UN will give it legal force is false and, in any event, the ECJ does not see itself as bound by UN law.

  • The Oxford Guide to Treaties makes clear: ‘The act of registration does not change the status or conditions of a treaty and in that sense parties can expect no additional benefits from registration’ (Duncan B. Hollis (ed.), Oxford Guide to Treaties, OUP, 2012, p. 272,link).

  • The relevant UN regulation states that ‘registration of an instrument submitted by a Member State, therefore, does not imply a judgement by the Secretariat on the nature of the instrument, the status of a party or any similar question. It is the understanding of the Secretariat that its action does not confer on the instrument the status of a treaty or an international agreement if it does not already have that status and does not confer on a party a status which it would not otherwise have’ (United Nations,link).

  • The ECJ has made clear that it does not see itself as bound by UN Security Council resolutions. It has stated ‘an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred on it… the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the [EU] Treaty’ (Kadi v Council [2008] ECR I-6351, link).

2.Section A: No protection for non-Eurozone countries

The agreement gives the UK no power to prevent Eurozone countries imposing legislation on the UK.

  • In 2014, George Osborne called for major protections for non-Eurozone countries. Hestated ‘If we cannot protect the collective interests of non-eurozone member states then they will have to choose between joining the euro, which the UK will not do, or leaving the EU…. there is a danger that the euro members could start to use their collective voting weight in the EU to effectively write the rules for the whole EU by Qualified Majority Vote… It means there’s a very real risk that badly thought through legislation will be imposed on the UK. And as the Chancellor of a country where financial services represent a tenth of the economy, and employ more than a million people, I could not let that happen’ (HM Treasury, 15 January 2014, link).

  • The draft Council Decision on the new voting mechanism merely allows for more discussion in the EU institutions. It gives the UK no new blocking powers. It states that any referral to the European Council ‘is without prejudice to the normal operation of the Union legislative procedure’, meaning voting rules will not be changed.

  • Under the draft, the UK will continue to be outvoted by the Eurozone which has a permanent structural majority in the Council of Ministers. Since records began to be published in 1996, the UK has opposed 72 legislative measures in the Council of Ministers. Every one of these measures has gone on to become law, costing UK taxpayers £2.4 billion per year. The rate at which the UK is defeated is accelerating. 40 of the UK’s defeats have occurred since David Cameron became Prime Minister, meaning he has been outvoted more than any other Prime Minister (Vote Leave, 11 October 2015,link).

3.Section B: Yet again just talk on ‘competitiveness’ like Lisbon in 2000

David Cameron once promised ‘to restore social and employment legislation to national control’ (The Guardian, 6 March 2007,link). This pledge has been ditched and is not in the draft decision.

The EU has previously made promises of the kind it made today to improve competitiveness and cut regulation which have never materialised. Promises to the same effect now cannot be taken seriously.

  • In 2000, the European Council at Lisbon announced ‘a clear strategic goal and agree[d] a challenging programme for building knowledge infrastructures, enhancing innovation and economic reform, and modernising social welfare and education systems… If the measures set out below are implemented against a sound macro-economic background, an average economic growth rate of around 3% should be a realistic prospect for the coming years’ (Lisbon European Council, 23–24 March 2000,link).

  • The Lisbon Agenda is widely acknowledged to have been a failure, with economic growth in the Eurozone averaging 0.7% between 2004 and 2014 – less than a third of what was predicted by the European Council (Eurostat, 2 June 2015,link).

  • In October 2005, Günter Verheugen, European Commissioner for Enterprise and Industry, said: ‘We propose to scrap, modify or codify more than 1,400 legal acts across all policy areas. Simplification of legislation is also essential for improving competitiveness and conditions for more growth and jobs. It is obvious that red-tape and over-regulation put a break on the EU’s economic growth’ (European Commission, 25 October 2015,link).

4.Section C: No change to the supremacy of EU law; the ECJ stays in charge; the Charter remains in force in the UK

David Cameron once promised ‘a complete opt-out from the Charter of Fundamental Rights’ (BBC News, 4 November 2009,link). This promise has been ditched and is not in the draft decision.

  • The main text of the draft agreement does not mention the Charter of Fundamental Rights. A recital merely notes the existence of a Protocol negotiated by Tony Blair. However, this protocol has proven worthless - the EU is taking more and more powers every year using the Charter. In November 2015, the Court of Appeal referred the Data Retention and Investigatory Powers Act 2014 to the ECJ to see whether or not it is allowed (R (Davis) v Secretary of State for the Home Department [2015] EWCA Civ 1185, link). The Government described this law as ‘crucial to fighting crime, protecting children, and combating terrorism’ (HC Deb 15 July 2014, col. 704, link).

David Cameron once promised to ‘limit... the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level’ (Speech on EU, 4 November 2009, link). This promise has been dropped and is not in the draft.

  • No powers will be brought back by this agreement.The Decision states: ‘The competences conferred by the Member States on the Union can be modified, whether to increase or reduce them, only through a revision of the Treaties with the agreement of all Member States.’ As there is no new treaty, this means that no powers will be brought back.

  • There is no veto for the UK Parliament. The draft agreement only offers a slight adjustment of the current ‘yellow card’ system, and will require the UK Government to win the support of ‘55% of the votes allocated to the national Parliaments’ within 12 weeks of a proposal being made by the EU. This threshold is so high that the mechanism will likely never be triggered.

  • As the former Foreign Secretary, William Hague, has said : ‘even if the European Commission proposed the slaughter of the first-born it would be difficult to achieve such a remarkable conjunction of parliamentary votes’ (HC Deb 21 January 2008, col. 1262, link).

5.Section D: Nothing remotely significant on ‘free movement’ and our ability to implement a rational and humane immigration policy

There is essentially no change to the long-standing rules on free movement of people. The jurisdiction of the ECJ over free movement is unchanged. There is no limit of the Charter’s application to immigration and free movement.

The draft agreement highlights the Government’s broken promises.

  • It notes that EU citizens are ‘entitled to reside [in the UK] solely because of their job-search.’ This directly contradicts what the PM said in November 2014, when he promised that ‘we want EU jobseekers to have a job offer before they come here’ (speech at JCB, 28 November 2014, link).

  • The Prime Minister claimed today he had delivered another promise that ‘if an EU jobseeker has not found work within six months, they will be required to leave’ (speech at JCB, 28 November 2014,link). This is wrong and is not in the draft. In fact, the Prime Minister's promise is illegal under EU law.

  • In 1991, the European Court of Justice (ECJ) ruled that the Treaties forbid the removal of jobseekers from another EU member state, regardless of the duration of their stay if ‘the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged’ (R v Immigration Appeal Tribunal, Ex parte Antonissen  [1991] ECR I-745, operative para, link).

  • The Government admitted in December that some EU migrants can ‘keep the status of jobseeker for longer than six months’ (‘EU Nationals: Employment: Written question – 17574’, (2 December 2015), link).

  • In any event, EU law forbids systematic verification of whether EU citizens are lawfully resident in the UK (Parliament and Council Directive 2004/38/EC, art. 14(2), link). Removals of EU migrants are thus very limited, with fewer than 4,000 removed in 2014 (Home Office/ONS, September 2015, link). It is therefore clear that the promise that all EU jobseekers would, as a rule, be removed from the UK after six months if they had not found work will not be delivered.

The proposal on in-work benefits will have no impact on immigration and is contrary to the Conservative Manifesto.

  • There is no evidence that cutting access to benefits would reduce net inward migration. In June 2015, HM Treasury was asked if it could ‘estimate the number of EU nationals who would not have chosen to migrate to the UK if they had not been entitled to tax credits for the first four years of their stay.’ The Government admitted that ‘the information requested is not available’ (‘Welfare Tax Credits: EU Nationals: Written question – 4124’, 29 June 2015,link).

  • One of the top three members of the independent Office of Budget Responsibility, Sir Stephen Nickell CBE, has said that the proposal would have ‘not much’ impact on immigration, stating that ‘any changes to benefit rules are unlikely to have a huge impact on migration flows’ (BBC News, 8 December 2015,link). The Foreign Secretary, Philip Hammond, has admitted that changes to welfare are ‘clearly a second-order approach’ compared to ‘quantitative restrictions on migrants’ (Guardian, 18 January 2016,link).

  • The ‘emergency brake’ will be triggered by the Council of Ministers on a proposal from the European Commission. The UK will not be in control.

  • The draft agreement states that ‘the limitation should be graduated’ and refers to ‘gradually increasing access to such benefits to take account of the growing connection of the worker with the labour market’.

  • This is much less than what David Cameron promised in his manifesto last year, when he said: ‘We will insist that EU migrants who want to claim tax credits and child benefit must live here and contribute to our country for a minimum of four years’ (Conservative Manifesto 2015, link).

  • In addition, these proposals could be annulled by the European Court of Justice after the referendum because the EU Treaties remain supreme.

The proposal on child benefit is in breach of the Conservative Party Manifesto.

  • The draft decision states that member states will be given the ‘option to index [child] benefits to the standard of living in the Member states where the child resides.’ This means British taxpayers will still be obliged to support children living in other EU member states.

  • The Conservative Party Manifesto promised: ‘If an EU migrant’s child is living abroad, then they should receive no child benefit or child tax credit, no matter how long they have worked in the UK and no matter how much tax they have paid’ (Conservative Manifesto 2015, link).

The proposals on sham marriages will be meaningless without Treaty change. The ECJ has consistently held that the Treaties grant rights of residence in the UK to third country nationals. Proposed changes to EU secondary legislation will not be effective.

  • In 2002, the ECJ held that a third country national could not be removed from the UK in circumstances where it might ‘obstruct the exercise of the freedom to provide services’ by her husband, who would be required to look after his children rather engage in economic activity if his wife were removed. The ECJ relied on the ‘fundamental right to respect for family life’ in order to reach its decision (Carpenter v Secretary of State for the Home Department [2002] ECR I-6279,link).

  • Professor Damian Chalmers of the London School of Economics has said: ‘There are a number of judgments where the Court has indicated that refusing to grant a non EU national family member residence would violate the Treaty because it would  discourage the EU citizen from exercising their rights to free movement. On its face, therefore, unilateral income and language requirements would require Treaty reform’ (Open Europe, December 2014,link).

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