Law and Rights

The Swiss vote against free movement of people and the implications for the UK's membership of the EU

Steve Peers

There are two implications of the narrow vote in the Swiss referendum to renegotiate treaties with the EU in order to permit a quota on labour migration? First, and most immediately, the vote will affect Swiss relations with the EU. Secondly, the vote foreshadows key aspects of the debate concerning the UK?s relationship with the EU, and the possible renegotiation of EU membership.

The Swiss implications

The details of what the Swiss voted for have been incisively analysed in the Kent EU rights blog post, here: http://blogs.kent.ac.uk/eu-rights-clinic/

So what are the broader implications? There is now a domestic constitutional obligation for the Swiss government to renegotiate its free movement treaty with the EU, so that labour quotas are allowed. Of course, such a renegotiation is technically possible, but will be politically difficult, since the EU insisted upon this treaty as a quid pro quo as part of a broader package that included treaties on six other issues, such as public purchasing and aviation access. The EU can, and probably will, insist on renegotiation of some of these other treaties as a consequence.

The EU should not be criticised if it demands a renegotiation of other treaties, as it had always insisted upon this link, which is set out expressly in all the treaties concerned. The Swiss public was also always aware of it. Indeed, undoubtedly the link with the other treaties explains why the Swiss public has voted for the free movement agreement in three previous referenda (once to approve it initially, and twice to extend it to new Member States). And it is clear that the supporters of a ?no? vote in the new referendum made the link clear to the voting public. We must conclude that the narrow majority who voted ?yes? thought that this would be a price worth paying.

After all, any agreement contains an element of quid pro quo. For instance, employees might like to be paid even if they don?t work, while employers might prefer it if employees worked without pay. Obviously both sides compromise; and a ?pick-and-choose? approach will have consequences. If employees start working for 3 days a week instead of 5, they won?t still receive full-time pay.

The implications for the UK

When re-negotiating with Switzerland, at least some Member States will be thinking about the UK. While it used to be the case that the cost of the UK?s net contribution to the EU was the main cause for Eurosceptics, that has been joined first by doubts about the EU?s democratic legitimacy and second by concerns about large-scale immigration from new Member States. Could the UK hold a referendum like Switzerland?s?

Legally speaking, no. The UK does not have a specific free movement agreement with the EU (linked to other treaties) like Switzerland does. Rather, free movement is part and parcel of our membership of the EU. If we want to be rid of it, we either have to renegotiate our entire membership or leave the EU. As a matter of domestic law, we could hold a referendum or otherwise change the free movement rules, and breach EU law while remaining a Member. But that course would be dishonest and disreputable. If the majority of the British people don?t like a key aspect of our arrangement with the EU, we should either leave or try to change that arrangement, while being aware of the consequences of doing so.

So we could ask to renegotiate our membership as far as free movement of people is concerned (among other things, of course). This is legally possible, but politically even more difficult than the Swiss case. Indeed, as I suggested already, the negotiations with Switzerland could serve as a proxy for the possible future negotiation with the UK ? much as any EU negotiations concerning an independent Scotland would be a proxy for many Member States? concerns about their separatist movements. Spanish politicians look at Edinburgh, and think of Barcelona.

It seems likely, then, that we are about to witness a ?dry run? for a possible British renegotiation process. This will provide a useful laboratory to test the theory that renegotiating the UK?s EU membership, or the UK leaving the EU, would only have (in Eurosceptics? view) positive consequences for the UK.

Barnard & Peers: Chapter 24

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