Response to draft EU renegotiation agreement: The only safe option is to Vote Leave

Responding to the publication of the draft EU renegotiation agreement, Vote Leave supporter Dr. Liam Fox MP said:

‘The very limited set of demands from our Government have been watered down by the EU in every area.

‘The British people want to take back control and end the supremacy of EU law over our economy, our borders and our Parliament.  

‘None of these changes even come close to the fundamental changes promised to the public. We are being asked to risk staying in the EU based on the back of empty promises from the EU that are not even backed up in Treaty.  The only safe option is to Vote Leave.’

Notes to editors
 
The draft agreement published by the President of the European Council, Donald Tusk, was published this morning and can be found here.
 
KEY POINTS
 

  • 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.
  • David Cameron has failed to deliver on his key manifesto pledge to limit migrants’ benefits. The ‘emergency brake’ on in-work benefits for EU migrants will be triggered by the Council of Ministers on a proposal from the European Commission – not by the UK. Significantly, it is not a complete exclusion for four years as David Cameron said he would ‘insist on’ in the Conservative Manifesto, but a ‘graduated’ mechanism allowing EU migrants greater access to benefits over time.
  • The new ‘red card’ plan is impractical and unworkable. The new ‘red card’ mechanism introduces a new 55% threshold before a law can be blocked. This is much higher than the current threshold of a third of national parliaments and will make the device wholly impractical. 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).
  • EU will remain supreme. Today’s draft decision states right at the beginning that it is ‘in conformity with the Treaties’. This reaffirms the supremacy of the EU’s Treaties over UK law. 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).
  • The blocking mechanism to prevent Eurozone caucusing is a delaying mechanism only, stating ‘any referral to the European Council is without prejudice to the normal operation of the Union legislative procedure.’

 
What’s missing from this deal?


David Cameron’s ditched pledges to reform the EU
 
The Prime Minister wants to talk about this manufactured row because he has dropped most of his demands to change the EU. David Cameron has been Leader of the Conservative Party for more than a decade. In that time, he has made a number of promises to reform the UK’s relationship with the EU. But, now that he finally has the chance to deliver on those promises, it has been revealed that he has dropped nine out of ten of his past demands (See Vote Leave’s full research note on this here). These ditched pledges include:

  • DITCHED PLEDGE 1: ‘to restore social and employment legislation to national control’(The Guardian, 6 March 2007, link).
  • DITCHED PLEDGE 2: ‘a complete opt-out from the Charter of Fundamental Rights’(Speech on EU, 4 November 2009, link).
  • DITCHED PLEDGE 3: ‘limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level’ (Speech on EU, 4 November 2009, link).
  • DITCHED PLEDGE 4: ‘treaty change that I’ll be putting in place before the referendum’(Daily Telegraph, 5 January 2014, link).
  • DITCHED PLEDGE 5: ‘we want EU jobseekers to have a job offer before they come here’(speech at JCB, 28 November 2014, link).
  • DITCHED PLEDGE 6: ‘if an EU jobseeker has not found work within six months, they will be required to leave’ (speech at JCB, 28 November 2014, link).
  • DITCHED PLEDGE 7: ‘revising the [working time] directive at EU level to give the NHS the flexibility it needs’ (Hansard, 18 January 2012, col. 746, link).
  • DITCHED PLEDGE 8: ‘the European Parliament must end its absurdly wasteful practice of meeting in Strasbourg as well as Brussels’ (Conservative Party European Election Manifesto, link).
  • DITCHED PLEDGE 9: ‘further reform of the EU’s Common Agricultural Policy’(Conservative Party Manifesto 2015, p.21, link).
  • DITCHED PLEDGE 10: ‘further reform of … Structural Funds’ (Conservative Party Manifesto 2015, p. 73, link).

 
Sovereignty
 
Claims of a new ‘veto’ power for the British Parliament are false
 

  • 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.
  • David Cameron admitted in his Chatham House speech that ‘we are not suggesting a veto for every single national parliament’ (10 November 2015, link).
  • The President of the European Council, Donald Tusk, has said the UK will not be given a ‘veto right’ (European Council, 7 December 2015, link).

 
The UK Parliament will not be able to block EU laws it disagrees with
 

  • Under the draft agreement, even if a clear majority of British MPs voted against a damaging new EU law it would still come into force unless politicians in over half of the other national parliaments of the EU could be persuaded to agree with them within a very short period of time.
  • The former Foreign Secretary, William Hague, warned in 2008 that the yellow/red card system was impractical and unlikely to stop bad EU laws. He said: ‘Given the difficulty of Oppositions winning a vote in their Parliaments, the odds against doing so in 14 countries around Europe with different parliamentary recesses … are such that 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’ (Hansard, 21 January 2008, col. 1262, link).
  • The proposed 55% threshold is much higher than the the current 33% threshold for the ‘yellow card’. This means it is even harder to use than when William Hague was warning against it in 2008.
  • Open Europe said in December 2015: ‘The threshold at which the red card can be issued will be crucial in determining its credibility. It simply makes no sense to have a threshold higher than the minimum blocking minority already available to national governments within the Council of Ministers. As such, it should be set at least at the current yellow card threshold of one third of national parliaments, and ideally even lower.’
  • Professor Damian Chalmers of the London School of Economics has said that a red card would ‘have largely symbolic effects ... it is likely to make a difference very rarely, if at all’ (European Scrutiny Committee, October 2015, link).
  • The European Scrutiny Committee warned last month that ‘The red card as it is proposed represents a practical threat to the exercise of UK parliamentary sovereignty as it makes the will of the UK parliament in a particular case subordinate to the differing collective view of a group of parliaments’ (European Scrutiny Committee, December 2015, link).

 
The draft agreement reasserts the supremacy of the EU Treaties. 
 

  • 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.
  • The draft decision states right at the beginning 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).
  • The draft agreement only contains a vague promise to review the phrase ‘ever closer union’ in a future Treaty.



The ‘yellow card’ has been triggered on just two occasions since it was introduced in 2009 – without much success. The Commission withdrew one proposal and decided to continue with the other regardless (European Commission, June 2015, link).
 
This ‘red card’ would not apply to EU law currently in force. Even in the unlikely event that the requisite number of national parliaments across the EU did agree, they could only block proposed new legislation. They could not repeal any existing damaging EU legislation.
 
To have any effect, this would require Treaty change, which will not happen before the referendum
 

  • The Foreign Secretary, Philip Hammond, admitted in June 2015 that in order for a ‘red card’ to have any effect it ‘would need to be dealt with by treaty change’ (Andrew Marr Show, 7 June 2015, link).
  • The Minister for Europe, David Lidington, has accepted that to be made ‘concrete’, a Treaty amendment is required and that all that can be made by the Commission now is a ‘political commitment’ (FCO, 26 June 2014, link).
  • The so-called ‘yellow card procedure’ is contained in Protocol (No. 2) to the EU Treaties (Consolidated Treaties, 2012, link). Turning this into a ‘red card procedure’ would require a Treaty amendment in order to bind the EU institutions. If this proposal is introduced without treaty change, it would not be binding on EU institutions and the European Commission could ignore any ‘red card’ without any legal consequence.
  • The EU has already ignored a ‘yellow card’ over the creation of the European Public Prosecutor in 2013 (European Commission, 2013, link).

 
The Prime Minister has said that he has already achieved the end of ‘ever closer union’
 

  • The European Council declared in June 2014 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 further’ (European Council, 27 June 2014, link).
  • The Prime Minister then told the House of Commons that ‘we broke new ground, with the Council conclusions stating explicitly that ever closer union must allow for different paths of integration for different countries and, crucially, respect the wishes of those such as Britain that do not want further integration’ (Hansard, 30 June 2014, col. 600, link).

 
Economic governance
 
The ‘principles’ recognised by the draft agreement are actually just statements of the obvious

  • In his letter to Donald Tusk in November 2015, the Prime Minister said he wanted ‘recognition’ that ‘the EU has more than one currency. Today’s draft agreement proposes no formal changes on this issue, simply acknowledging the obvious fact that the UK has no obligation to join the euro. It also states that the EU has an ‘objective of establishing an economic and monetary union whose currency is the euro.’
  • HM Government has already claimed that it is not financially liable for operations to support the Eurozone currency. In his January 2013 Bloomberg Speech which launched the renegotiation, David Cameron said: ‘look too at what we have achieved already. Ending Britain’s obligation to bail-out Eurozone members’ (23 January 2013, link).
  • The blocking mechanism proposed in the draft agreement to prevent Eurozone caucusing is a delaying mechanism only.

 
Competitiveness
 
The draft agreement states that it will ‘make all efforts to strengthen the internal market’. The EU has made such commitments before 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).

 
Immigration
 
This agreement is much less than what was promised by the Prime Minister
 

  • The ‘emergency brake’ will be triggered by the Council of Ministers on a proposal from the European Commission. It is a ‘graduated’ mechanism allowing migrants in the UK greater access to benefits over time.
  • 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).
  • The emergency brake would not affect the right of every EU citizen to enter the UK.

 
An emergency brake on welfare payments will not restore control over the UK’s border or social security system or reduce net inward migration
 

  • 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 Government has been unwilling release statistics on the subject because they would be ‘unhelpful’ to the renegotiation
 

  • In December 2015, the former Chief Economist at the Cabinet Office, Jonathan Portes, requested under the Freedom of Information Act 2000 various statistics about the number of active national insurance numbers registered to EEA nationals and the number thereof which were linked for claims of tax credits and benefits. The Government replied that it was not obliged to release the information, stating that ‘that releasing information in the form requested would, at this stage, be unhelpful to the negotiation process’ (HMRC, 16 December 2015,link).

 
Any reforms to benefits will be wholly undercut by the living wage
 

  • The Director of the National Institute of Economic and Social Research, Jonathan Portes, has said that the impact of the living wage ‘will be to make the UK labour market more attractive to low-paid EU migrants’ (NIESR, 9 July 2015, link).
  • Research shows the living wage will mean a single migrant from Poland on the minimum wage will be 156% better off in the UK in 2020, even if the welfare reforms are agreed. An equivalent worker from Bulgaria would be 353% better off (Vote Leave, 11 November 2015,link).

 
The EU, not the British Parliament, would be in charge of the brake
 

  • The draft agreement states that the agreement will be triggered ‘on a proposal of the Commission’ by the EU’s Council of Ministers.
  • In November 2014, the Prime Minister dismissed an emergency brake as ‘some arcane mechanism within the EU, which would probably be triggered by the European Commission and not by us.’ He poured scorn on the notion of ‘some sort of EU-led, EU-determined brake, which would be determined and applied probably by the European Commission. I don’t actually think that would be effective’ (28 November 2014, link).

 
Whatever is agreed, EU judges will remain in charge
 

  • The European Court of Justice (ECJ) has previously ruled that the right to free movement in enshrined in the Treaties. This means that, unless there is Treaty change, the ECJ can rule any changes illegal after the referendum.
  • In January 2016, the Foreign Secretary, Philip Hammond, admitted that ‘There are issues … without treaty change can [the renegotiation] be proofed against judgements in European court?’ (The Guardian, 18 January 2016, link).
  • The ECJ has said that limitations on payments of social security must be proven by hard evidence. On 21 January 2016, the ECJ said that any move to restrict free movement to protect the welfare system must be supported by ‘specific evidence substantiating its arguments. Such an objective, detailed analysis, supported by figures, must be capable of demonstrating, with solid and consistent data, that there are genuine risks to the balance of the social security system’ (Commission v Cyprus Case C-515/14, para [54], link). Yet the Government is refusing to release relevant statistics (see above).

 
Depositing this deal with the UN is just a gimmick 
 

  • Registering the EU renegotiation package with the UN will not give it legal force. TheOxford 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 makes clear 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).