Law and Rights

The Pro-European case for a renegotiation of and referendum on the UK?s membership of the EU

By Steve Peers

The Prime Minister, lacking a majority in the House of Commons, is harried by his Eurosceptic backbenchers. He promises a renegotiation of the UK?s membership of the EU, followed by a referendum on whether to stay in. It?s 2014 ? but it?s also 1975.

That renegotiation and referendum ultimately resulted in a landslide vote in favour of staying in the EU. While the circumstances are different in some respects in 2014, there is a strong case for repeating this process.

The argument for a referendum on the EU has so far been made either by those who are opposed to the UK?s membership of it (UKIP), or as a concession to those backbenchers who are highly critical of it (the Conservative party). On the other hand, it has been resisted by those who are most in favour of the EU.

In that light, the purpose of this post is two-fold: (a) to make a pro-European case for a referendum and (b) to describe exactly how the UK should renegotiate its membership beforehand.

The pro-European case for a referendum

The case for a referendum on EU membership should stand on its own, and should not be seen as a defensive reaction to the results of the most recent European Parliament elections.

First and foremost, since 1975 there have been five major Treaty amendments, as well as substantial enlargement of the EU. The political and economic circumstances of the country, and the EU as a whole, have clearly changed. There is therefore a principled argument for allowing the voters to give their fresh consent (or not) for these developments.

Secondly, the continued pro-European rejection of a referendum has made it possible for critics of the EU to characterise pro-Europeans as anti-democratic. Of course, it can be argued in response that representative democracy is also a valid form of democracy, one with longer and deeper roots in British political culture, and that the UK Independence Party has never (at least to date) won a single seat in the House of Commons. But in light of the growing tradition to decide important constitutional questions by popular referendum, that counter-argument has diminishing force. After all, voters cast their vote at general elections for many reasons besides their view on membership of the EU.

More broadly, pro-European opposition to a referendum makes it look as if pro-Europeans do not have the courage of their convictions. If the EU is, as they say, such a good thing for the UK, why fear a popular vote on it? In fact, on several occasions, pro-Europeans have promised a referendum on some aspect of the EU, and then apparently (if not technically) reneged on their promise. This gives the impression that pro-Europeans cannot be trusted, and so leads some voters to question the honesty of their arguments. The longer that pro-Europeans resist the case for a referendum, the more that these negative impressions will grow. Put simply, the pro-European resistance to an in/out referendum is surely damaging the pro-European cause.

While Labour and the Liberal Democrats have promised an in/out referendum, this would only take place in the event of a new Treaty transferring powers from the UK to the EU. While it is possible that there will be negotiations for Treaty amendments in the next few years, it is inconceivable that those parties would agree to the transfer of fresh powers from the UK to the EU in that context. So that referendum promise is meaningless. The Labour and Liberal Democrat position is like promising that if I had a sex change, I would stay married to my wife. But I?m not going to get a sex change.

In any event, the very offer of an in/out referendum, even if the conditions for it to be held are unlikely ever to be satisfied, undermines the logic of the arguments against having such a referendum.

It must be emphasised that the case for a referendum is non-partisan: advocating a referendum does not necessarily mean supporting British withdrawal from the EU, or supporting any other policy espoused by the Conservative party.

So the pro-European response to calls for a referendum should no longer be to find an excuse not have one, to promise one and renege on that promise, or to promise one that will never be held. It should be, simply: Bring it on.

Renegotiation of UK membership

Before examining the details of renegotiation, one critical rule must be set down at the outset. Any renegotiation position must avoid insisting upon Treaty amendment, or upon a change in EU law which necessarily involves Treaty amendment (such as complete UK control over the free movement of persons). That?s because a Treaty amendment will be far more difficult to achieve, in particular if it becomes bound up with other possible amendments to the Treaties concerning other issues. Those who demand that such renegotiation positions (such as full control over the free movement of persons) should be a ?red line? are essentially dishonest. If that issue is crucially important to them, they should instead call for UK withdrawal of the EU, with all of the consequences which that entails.

In fact, back in 1975, other Member States agreed to a renegotiation consisting of amendments to EU secondary legislation, and the British public ultimately accepted that deal. Again, it would be possible today to address many of the issues arising from the UK?s membership of the EU by amending secondary legislation. Indeed, Jean-Claude Piris recently arguedthat the negotiation demands set out by David Cameron could all be addressed by amendment of secondary EU legislation.

As discussed in a previous post, this is correct. However, there is a risk that the critics of the EU would not be entirely satisfied by it. The better strategy is therefore to aim for an intermediate course: in conjunction with amendments to EU secondary legislation, there should be a decision of the EU Heads of State and Government, meeting within the European Council, which constitutes the EU?s response to the renegotiation request.

Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State?s difficulties ratifying the Maastricht Treaty and the latter Member State?s difficulties ratifying the Treaty of Lisbon. In the latter case, the European Council also agreed the broader legal and political context of this decision: the decision was ?legally binding?, it did not constitute a Treaty amendment, and its content would be set out in a Protocol to be attached to the Treaties in future. Indeed, the latter protocol was subsequently signed as promised. The UK could be offered a similar commitment.

In order to indicate more clearly how the renegotiation would work, the annex to this post suggest a possible wording for such a decision, based upon the 2009 Decision concerning Ireland, adapted to the Conservative party?s negotiating demands.

The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,

Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,

Desiring to address those concerns in conformity with the Treaties,

Having regard to the Conclusions of the European Council of [xx date] 2017,

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.

Section B

Free movement of persons and social benefits

The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.

Note: see the recent Advocate-General?s opinion in the Dano case (press release here); see also the previous post discussing the current limits on expelling persons following unemployment and/or requests for social assistance.

Section C

Powers of national parliaments

The Heads of State and Government take note of the Commission?s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States? parliaments.

Section D

Economic reform

The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].

Section E

Policing and criminal law

The Heads of State and Government reaffirm the United Kingdom?s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.

They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.

Note: if the process of ECHR reform is completed before the UK renegotiation of its EU membership, there could be a more specific commitment to give effect to the results of that process, for instance ratifying a new protocol to the ECHR.

Section F

Reduction of EU competences

The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.

Note: this could be accompanied by specific commitments to repeal or reduce the scope of some existing EU legislation.

Section G

?Ever Closer Union?

The Heads of State and Government confirm that the commitment in the Treaties to ?ever closer union? has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union?s competences, or constrain the Union from choosing to exercise its competences less intensively.

Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25

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