ORIGINAL PUBLISHED ON EU LAW ANALYSIS
Friday, 8 May 2015
by Steve PEERS
The unexpected election of a Conservative majority government in the UK raises some fundamental questions about the UK’s continued membership of the European Union. As a first response to the election results, I’ll discuss here in turn the issues relating to the referendum and the renegotiation.
The Brexit referendum
What are the key issues of principle concerning the upcoming referendum?
First of all, let’s start with the obvious point: the new government will implement the Conservative party’s policy of attempting to renegotiate the UK’s membership of the European Union, followed by an in-out (‘Brexit’) referendum on the results of the referendum by the end of 2017. A government bill to this effect will likely be swiftly introduced; it will probably be similar to the Private Member’s Bill tabled on this issue in the last parliament, which was supported by the Conservative party.
Secondly, as I blogged last year, the opposition of many pro-Europeans to a referendum was both a mistake in principle, and a tactical error too. There’s clearly no point in expending any political energy on resisting a referendum any further. The issue for the pro-EU side is now how to win the referendum.
Thirdly, the idea of trying to expand the voting franchise to cover all EU citizens living in the UK is a moot point in light of the outcome of the election. That’s simply because the Conservatives have the votes to push through (as they proposed in the prior Bill) a referendum based on the usual UK general election franchise (UK, Irish and Commonwealth citizens living in the UK, and UK citizens who have lived abroad for less than 15 years). Indeed, as I blogged earlier this year, while I sympathise with EU citizens living in the UK who would like to vote in a Brexit referendum, it would again be both wrong in principle and a tactical error to expand the franchise for that referendum.
Thirdly, there’s no particular reason to assume, as some inside and outside the EU do, that the anti-EU side will win the referendum. Rather the contrary: according to polling, support for staying in has risen in recent years, and clearly exceeds the support for leaving. That’s before any renegotiation takes place. Of course, we might not want to rely on polling so much in light of the election result – although the lead for the pro-EU side in this poll is much larger than the error in opinion polls during the general election. There’s also no good reason to consider the election result as a de facto vote for Brexit: the Conservative party was arguing for a renegotiation and referendum, not Brexit as such, and did not even get near 40% of the vote in any case. In a referendum, there is no ‘first past the post’ to distort the outcome of the public choice between multiple parties – only a straight ‘yes or no’ decision.
There are three important political dynamics that will shape the debate over renegotiation of EU membership – and therefore affect the ensuring referendum – in the two and a half years to come.
First of all, a key issue will be the relationship between David Cameron and the rest of his party, most notably the large Eurosceptic chunk of it. Cameron’s decision to promise a renegotiation and a referendum, and then to make immigration from the EU such a key feature of the renegotiation, was prompted by demands from his backbenchers and concerns about losing Tory votes to UKIP. The latter concern will surely now go on the back burner issue as a result of the general election; but could the former issue become more important? With a small majority, is Cameron now even more at the beck and call of his back-benchers?
The key issue here is whether Cameron will continue to respond to Eurosceptic demands to harden his negotiation position (or not to give any ground on the position he has already set out), or whether he will (on this issue at least) feel less pressure than before. After all, he has answered his internal party critics by winning a majority in the House of Commons – and he has less pressure on him as a result of his intention to retire by the end of this parliament. A crucial question here is whether he could count on other parties’ support, if necessary, in the event of a rebellion by his own Eurosceptic backbenchers.
There’s an important point of principle here. Not only does the Conservative party have a democratic mandate to hold a renegotiation and a referendum: it also has a mandate to hold that renegotiation on the terms that Cameron has already set out. Some Eurosceptics believe that the UK could demand any renegotiation terms it liked from the rest of the EU, and automatically get them. But the lack of enthusiasm from other Member States for Cameron’s demands so far suggests that the Conservative party’s demands are already at (if not beyond) the limits of what other Member States could be willing to accept. Those Eurosceptics who feel that his current renegotiation demands are not enough should join the pro-Brexit camp openly and honestly, instead of trying to trick Cameron into making unrealistic demands in the hope that other Member States’ rejection of them would compel Cameron to give up on renegotiation and campaign for Brexit himself.
Secondly, a key issue is what other Member States now do following the general election result. There seemed to be little interest in discussing the renegotiation requests before, but that was understandable for two obvious reasons. First of all, because of the pending general election: why start to renegotiate with someone who might soon lose office? Secondly, because (and this was widely misunderstood) the British government never requested a renegotiation; it was Conservative party policy only. In the absence of agreement on Cameron’s strategy from the Liberal Democrats, the UK government as such never requested a renegotiation.
Both those obstacles to talks have now been removed. The question is whether other Member States are now inclined to respond to the requests for renegotiation or not. The response of key Member States like Germany, and traditional friends of the UK like the Netherlands and Ireland, will be crucial. While some Member States may think ‘this is too politically difficult for us’ or ‘if you don’t like the EU, just go away’, this would be a mistake. As a net contributor to the EU budget and a net importer of goods from the EU, it would be foolish for other Member States to refuse to negotiate at all – although as I said already, that does not mean that the UK can expect the rest of the EU to accept any and all renegotiation demands it might wish to make.
The renegotiation process will raise some important legal questions about the form and substance that renegotiation will take. I have blogged about some of these points earlier, and will be coming back to them over the months ahead.
Thirdly, the role of other political parties in the UK will be crucial. As I already mentioned, Cameron might need their support in the event of a rebellion by Eurosceptic backbenchers. Tempting as it might be to cause trouble for Cameron, it’s not in the interests of pro-EU parties to jeopardise the UK’s EU membership, which they support. Because the Conservative party has a majority, other parties will have no direct influence on the renegotiation as such. But they have an indirect importance, because of their key role in ensuring a Yes vote in the Brexit referendum. This can hardly be secured by Tory votes alone, given that the party attracts under 40% of the vote, including many anti-EU voters.
This has implications for the content of the renegotiation. Many Tories would love to see a renewed opt-out from the social chapter; but many voters on the left might reject staying in the EU on that basis (even if it could be negotiated with other Member States). Anything beyond a modest curtailment of the EU’s working time Directive (for instance, overturning the wacky CJEU case law counting doctors’ sleep as ‘working time’) could risk an anti-EU vote.
Furthermore, this means that pro-EU opposition parties will have to share a platform with (some) Tories – even though we can be certain that after two years of Tory government there will be utter loathing of that idea. But a ‘no’ to the EU will not force the Tory government out, or even cause Cameron to resign (it’s widely assumed that he would resign as Tory leader shortly after the Brexit vote anyway). And the most fervent supporters of the free movement of EU citizens will have to accept that some curtailment of free movement rights is an inevitable consequence of the renegotiation. Without it, there will soon be no free movement between the UK and EU at all.
As for the anti-EU parties (mainly UKIP and a big chunk of the Tories, with a smattering of politicians from other parties), the key issue will be whether they can sell a coherent and plausible alternative to the UK’s EU membership. This is another issue which I will come back to, since it raises many legal issues. But suffice it to say that the simplest alternative to EU membership (the European Economic Area) is unattractive to Eurosceptics because it still provides for free movement of people. Any other alternative will entail a negotiation of a new agreement with the other Member States. But the anti-EU side will not only have to agree a common view on what this would entail, but also convince the public that other Member States will necessarily accept it. Compare to the Scottish independence referendum last year, where the SNP government was able put forward a single detailed plan on what independence would look like (I doubt that the various Eurosceptics could easily agree on the equivalent) but could not then (as I blogged at the time) convince enough Scottish voters that the remaining UK would agree to it. This may prove to be the Achilles heel of the anti-EU side.
Finally, a more general point. The result of the general election is undoubtedly a great shock and disappointment to non-Tories like myself. But the prospect of a Brexit referendum offers us a chance to fight (alongside pro-EU Tories) for important things we believe in, well before the next general election: employment rights, environmental and consumer protection, human rights, animal welfare, openness to the outside world and economic prosperity through trade in goods and services and free movement of people. Let’s try to light this candle, not simply curse the darkness.
*This post is linked to research for my forthcoming book from Hart Publishing – Brexit: The Legal Framework for Withdrawal from the EU or Renegotiation of EU Membership