Patel: EU is still in charge of our borders, our courts and our economy

Responding to the Prime Minister's statement on his EU negotiation, Employment Minister Priti Patel said:

'The Prime Minister has tried hard but the EU refused to give the British people what they want.

'EU courts and politicians will still be in charge of our borders, our courts and our economy. The deal is not legally binding and can be ripped up by EU judges after our vote. Even if it did come into force it would change just 1% of the EU Treaties.

'The only way to take back control over our economy to free up our businesses to create more jobs and growth is to Vote Leave.'

Notes to editors

The Prime Minister made a number of questionable claims in his statement to the House of Commons:

 

CLAIM: Article 50 must be triggered after the referendum

A vote to leave imposes no legal obligation on the UK to trigger article 50, merely a political obligation to negotiate its withdrawal, whether by way of article 50 or otherwise (Moohan v Lord Advocate [2014] UKSC 67, para [47], link).

 

CLAIM: The UK would have to leave in two years

The UK could leave in such a period – but, just yesterday, the Prime Minister contradicted this claim by saying it would take seven years: ‘If we leave, seven years potentially of uncertainty’ (BBC, Andrew Marr Show, 21 February 2016, link).

 

CLAIM: Removing the UK from ever closer union has legal effect

In response to questions from Liam Fox and Gisela Stuart the Prime Minister failed to name a single judgment by the ECJ that had been based on ‘ever closer union’. This is unsurprising. Former Lord Justice of Appeal and ECJ Judge Sir Konrad Schiemann has said the phrase is ‘more in the nature of an aspiration than a legally binding commitment to achieve anything in particular. Although I have judged many cases in which the legality of EU and national legislation and decisions has been in issue, I do not recollect a challenge based on an assertion that the measure in question was in breach of a legal obligation to achieve ever closer union’ (Evidence to Treasury Committee, November 2015, link).

 

CLAIM: He has delivered a ‘special status’ for Britain

Nowhere does the deal actually refer to any ‘special status’ for the UK – that is just Government spin. Politicians have claimed for years the UK has a special deal, or a new deal:

  • In 1991, John Major said the Maastricht Treaty was ‘game, set and match for Britain’ (Press Association, 11 December 1992).
  • In 1992, the Europe Minister, Tristan Garel-Jones claimed the EU was ‘singing the British tune’ (The Herald, 27 June 1992).

They have always been proved wrong and been forced to give more power and money to the EU. The ‘special status’ is exactly the same as the status quo: like the fact we have our own currency. The deal explicitly says that the EU keeps all of its existing powers over the UK. The only way to get the ‘fundamental and far-reaching change’ that the Prime Minister once promised is to Vote Leave.

 

CLAIM: He secured permanent protection for the pound

Britain has had an opt-out from the euro since the Maastricht Treaty of 1992. There was no prospect of Britain being forced to join the euro before the ‘renegotiation’. David Cameron admitted this in his letter to Donald Tusk last year when he said ‘the United Kingdom has a permanent opt-out from the Eurozone’ (HM Government, November 2015, link).

 

CLAIM: He preserved the Bank of England’s responsibility for financial regulation

The Decision makes clear that the UK will be dragged into the Eurozone’s banking regime.

  • The Decision states: ‘The single rulebook is to be applied by all credit institutions and other financial institutions in order to ensure the level-playing field within the internal market.’
  • It states that the UK’s ability to regulate its own banks is ‘subject to the requirements of group and consolidated supervision and resolution’ and is ‘without prejudice to the development of the single rulebook and to Union mechanisms of macro-prudential oversight for the prevention and mitigation of systemic financial risks in the Union and to the existing powers of the Union to take action that is necessary to respond to threats to financial stability.’
  • This means that the EU will be taking more powers over the City of London in the future.

 

CLAIM: Ending the UK’s liability for Eurozone bailouts

Promises of an opt-out from Eurozone bailouts have been breached before and cannot be taken seriously.

  • In his January 2013 Bloomberg speech which launched the renegotiation, the Prime Minister said: ‘Look too at what we have achieved already. Ending Britain’s obligation to bail-out Eurozone members’ (Gov.uk, 23 January 2013, link).
  • The Chancellor has since admitted that ‘out of the blue, in flagrant breach of the agreement we’d all signed up to, and without even the courtesy of a telephone call, we were informed we would have to pay to bail out Greece’ (HM Treasury, 3 November 2015, link).

The only way to change this would be to change the Treaties – and this has not happened.

 

CLAIM: The agreement is legally-binding

  • Leading EU legal figures have admitted that a promise to amend the Treaties in the future has no legal weight. The former Director General of the EU Council’s legal service, Jean-Claude Piris, has said a legally-binding commitment to change the Treaties at a future date is ‘called bullshit. There is no possibility to make a promise that would be legally binding to change the treaty later’ (Sunday Telegraph, 27 September 2015, link).
  • The promise is subject to ‘the respective constitutional requirements of the Member States’, meaning national parliaments and possibly national electorates will have a veto on any future Treaty change (European Council, 19 February 2016, link). This is the same as being asked to accept an unsigned contract as legally binding.

 Similar promises made to Denmark in 1992 have been broken 80 times by the European Court.

  • In 1992, Denmark was promised – via exactly the same type of deal that the UK is now being offered – 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’ (Edinburgh European Council, 12 December 1992, link).
  • The Prime Minister, John Major, said the Danish deal was ‘a legally binding decision’ (John Major Doorstep Interview with Jacques Delors, 12 December 1992, link).
  • Less than a decade later, the European Court broke this agreement, declaring EU citizenship would ‘be the fundamental status of nationals of the Member States’ (Grzelczyk [2001] ECR I-6193, link).
  • It has now broken this promise on 80 occasions, most recently a case concerning the Government’s flagging attempts to deport Abu Hamza’s daughter-in-law (Vote Leave, December 2015, link; CS v Home Secretary, Case C-304/14, link).
  • In its Rottmann ruling, the European Court said that ‘Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law’, blocking member states from automatically stripping national citizenship from criminals who acquire it fraudulently, in direct breach of the Danish deal (Rottmann [2010] ECR I-1449, link). The UK Supreme Court has said Rottmann is ‘in the face of the clear language’ of promises made to Denmark (Pham v Home Secretary [2015] UKSC 19, para [90], link).

 

CLAIM: Depositing the agreement at the UN will give it legal weight

Registering the agreement at the UN is a smokescreen: it does not make it legally binding.

  • The UN itself states registration ‘does not imply a judgement by the [UN] Secretariat on the nature of the instrument’ (UN, 18 December 1978, link). The UN Secretariat makes clear it will respect ‘the position of the Member State submitting an instrument for registration that in so far as that party is concerned the instrument is a treaty or an international agreement’, making clear it will register any document the British Government submits (UN, February 2016, link).
  • The European Court has previously said it will ignore even resolutions of the UN Security Council (Kadi v Council [2008] ECR I-6351, link).

 

CLAIM: New powers against criminals

The agreement gives the UK no new powers to remove criminals. The proposals on criminals will have no legal force – the Commission intends to adopt them by means of a ‘communication’, which has no legal status. It does not amend the existing Free Movement Directive or bind the European Court.

 

CLAIM: Powers will be returned

No powers will be brought back by this agreement.

  • The Decision states that ‘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.’ Since there will be no Treaty, no powers will be returned to the UK.
  • Before the agreement, the EU had 28 legislative competences over the UK. Today, it still possesses 28 (Treaty on the Functioning of the European Union, arts 3-6, link).
  • The Decision states that it respects ‘the powers of the institutions of the Union, including throughout the legislative and budgetary procedures’. This makes clear the Decision will not affect the EU’s powers to legislate for the UK or to demand £350 million per week from Britain.

 

CLAIM: No country has been able to get access to the Single Market without having to accept free movement of people or paying into the EU budget

There is no requirement for European countries to accept the free movement of persons in order to trade freely with the EU:

  • As the European Commission itself states, 'the EU also has free trade deals in force with a number of countries and territories in Europe'. These include 'the former Yugoslav Republic of Macedonia, Albania, Montenegro, Bosnia and Herzegovina, [and] Serbia' (European Commission, 3 December 2013, link). Free movement does not form part of these free trade deals.
  • The EU recently concluded the Deep and Comprehensive Free Trade Area Agreement with Ukraine, which is awaiting ratification. The Commission states 'Ukraine and the EU will eliminate respectively 99.1% and 98.1% of duties in trade value' (European Commission, 2014, link). The agreement makes some provision for liberalisation of visas but does not include the free movement of labour (Association Agreement, 29 May 2015, art. 19, link).

This pattern is even clearer among non-European countries which have free trade agreements with the EU.

  • On 18 October 2013, the EU concluded the Comprehensive Economic and Trade Agreement (CETA) with Canada. The text, published on 26 September 2014, runs to 1,634 pages, and covers goods, non-tariff barriers, investment, services, including financial services, transport, telecommunications and procurement among others things. The European Commission states that ‘CETA is going to eliminate all industrial duties’ and 92% of agricultural duties. Save for some minor provisions on temporary visas, the agreement does not include the free movement of persons.
  • Other non-European countries with free trade agreements with the EU which do not accept free movement include Chile, Peru and Colombia (European Commission, 3 December 2013, link).

 

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