ORIGINAL PUBLISHED ON EU LAW ANALYSIS ON Tuesday, 10 November 2015
by Steve Peers
Today’s Chatham House speech by David Cameron set out more detail of the UK’s demands for renegotiation of its EU membership. It was accompanied by aletter from Cameron to the President of the European Council, Donald Tusk, which set out a summary of his requests.
The speech also set out two changes to UK law which the government plans to make, as regards the EU Charter of Rights and (possibly) the role of UK courts reviewing the EU courts. Since these are changes to domestic law, they do not have to be negotiated with other Member States, unless there is a legal argument that they would breach EU law.
This is the latest elaboration of Cameron’s requests; I have commented earlier on his specific suggestions regarding free movement of EU citizens, and regarding other issues. I will refer back to what I’ve said already in those posts where relevant.
Changes to UK law
On the first change to UK law, Cameron referred to the government’s plans to repeal the Human Rights Act and replace it with a ‘British Bill of Rights’, which (as he acknowledged) are separate from EU law as such. But he then went on to state: “And as we reform the relationship between our courts and Strasbourg, it is right that we also consider the role of the European Court of Justice and the Charter of Fundamental Rights. So – as was agreed at the time of the Lisbon Treaty – we will enshrine in our domestic law that the EU Charter of Fundamental Rights does not create any new rights. We will make it explicit to our courts that they cannot use the EU Charter as the basis for any new legal challenge citing spurious new human rights grounds.”
This is a new point not raised in the Chatham House speech. What should we make of it? At first sight, it is not really any different from Article 1(1) of the special Protocol on the role of the Charter in the UK and Poland, which provides:
- The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
A clause in the preamble to this Protocol provides: “WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;”
So the Prime Minister’s commitment to change UK law could be met simply by making express reference to these provisions of the Protocol – or by incorporating their wording – in an Act of Parliament. This would simply reiterate the application of these rules to the UK, given that the Protocol already applies in UK law by virtue of the European Communities Act.
Any more far-reaching approach (such as that advocated by a House of Commons committee last year, as discussed here) would run the risk of complicated breaches of EU law. It’s impossible to say now whether that would happen or not, in the absence of any proposed legislation on this point.
For the sake of context, it should be noted that the CJEU has ruled in the NS case that the Charter did not add any rights to the ‘general principles of EU law’, which were the basis for protection of human rights in the EU legal system prior to the Treaty of Lisbon. And in Fransson, the Court ruled that the scope of the Charter (ie when it applied to Member States’ action) was the scope of the general principles. True, the Charter can be used to set aside Acts of Parliament, even by the lower UK courts, as in recent cases involving embassy staff andGoogle. But that’s true of EU law generally, including the previous general principles, as we saw in judgments like Kucukdeveci.
The Prime Minister’s second pledge was to consider whether to introduce a national check on EU measures like that asserted by the German Federal Constitutional Court, concerning the loss of ‘essential constitutional freedoms’ and the review of acts by the EU institutions to check if they remain within the scope of the EU’s powers.
Such a measure would breach EU law in principle, since the CJEU has long ruled that it is the sole judge of whether an EU law is invalid. But Cameron is correct to point out that other national constitutional courts have done the same thing. A full-bodied constitutional conflict has been avoided in practice because those other courts have been reluctant to use those powers, and because the CJEU has maintained a dialogue with them (which does not extend to agreeing with them all the time: see discussion of the recent case law on the ECB’s OMT scheme).
It should be noted that the ‘essential constitutional freedoms’ which Cameron refers to are fundamental rights as protected by the German Basic Law (the de facto German constitution). It remains to be seen whether the ‘British Bill of Rights’ which Cameron plans will protect human rights so strongly in the UK that there is any real prospect of the EU taking those rights away. If not, Cameron’s proposal looks like the constitutional equivalent of shaving all his hair off, while simultaneously insisting on the fundamental importance of his comb.
Changes to EU law
Cameron’s speech essentially rehashed the key features of his prior demands for changes to free movement law, as discussed in the prior blog post. It should be noted that it is clear from more recent CJEU rulings (the Alimanovic ruling, discussed here) that Universal Credit can be legally denied to first-time EU job-seekers (one of the points in his list), because it doesn’t qualify as a benefit concerning access to the labour market. That ruling might also make it easier to amend EU legislation to deny benefits to EU citizens who become unemployedwithin their first four years of entry in the UK. But it still seems unlikely that in-work benefits could easily be restricted, without a Treaty amendment.
On other issues, Cameron’s suggestion to bring together all commitments relating to competitiveness into a single text are rather unclear. It is striking that he has not demanded the repeal or amendment of specific EU legislation. (It’s a Euromyth – or perhaps we should call it a Cameronmyth – that he has ever made such specific demands. At least, they don’t appear in his keynote speeches on EU renegotiation; see the previous ‘Bloomberg speech‘, for instance).
Next, on the issue of ‘sovereignty’, Cameron wants: (a) a ‘clear, legally binding and irreversible agreement to end Britain’s obligation to work towards an ever closer union’; (b) ‘a new arrangement where groups of national parliaments can come together and reject European laws which are not in their national interest’; (c) ‘clear proposals to achieve’ subsidiarity; and (d) ‘confirmation that the EU institutions will fully respect the purpose behind’ the UK’s opt-out from JHA matters. He also states that ‘national security’ is a sole competence of Member States.
The national security and JHA points are new as compared to previous demands. It isn’t clear what Cameron is seeking as regards national security; the Treaties already state in Article 4(2) TEU that ‘national security remains the sole responsibility of each Member State’. As for the JHA points, the UK has lost a few cases on social security rules for third countries bound to the EU by an association agreement (see here, on one such case); it has also quibbled about whether the opt-out applies to parts of treaties with third States (on this point, see discussion here of a relevant CJEU judgment). Since the ‘legal bases’ which divide the JHA competences from other Treaty rules are set out in the Treaties, it is not clear what could be done here. Indeed it’s not clear exactly what Cameron is asking for.
It’s equally unclear what he is asking for as regards subsidiarity. There is a Protocol on subsidiarity but it would need to be amended by the full Treaty amendment process. Equally the slightly more specific demands regarding national parliaments would also entail, in principle, an amendment to the Protocols on subsidiarity and national parliaments.
However, it would be possible – without a Treaty amendment – to give some stronger legal effect to the principle of subsidiarity, and to strengthen the role of national parliaments, by amending the rules on Council voting, as suggested in detail in my previous blog post. This would entail a requirement to delay a vote in Council on grounds of subsidiarity and national parliament objections. This could be coupled with a legal commitment by Member States, in the form of a legally binding Decision of Member States’ Head of State and Government, not to press ahead with a vote in Council if there were no agreement on the proposal after the period of discussion. As explained there, the Council voting rules and Member States’ Decisions can only be amended by unanimity, so there would be legal security for the UK.
This leaves us with the demand regarding ‘ever closer union’. Only a full Treaty amendment could abolish the rule or exempt the UK from it as such, since it appears not only in the preamble to the TEU but (as many seem to forget) in the main text – Article 1 TEU. However, it could be arguable that a legally binding Decision of Member States’ Head of State and Government can clarify that this does not mean (for instance) that the UK is bound to sign up to Schengen or the single currency, or must give up its JHA opt-outs or join an EU army (and so on). Such legally binding Decisions are only valid under EU law if they do not contradict the Treaties; but there would be no such conflict if the Decision simply confirmed existing legal rules.
The final batch of proposals (although they came first in the speech) concern the relationship between the UK (and other non-eurozone States) and the Eurozone. They comprise: (a) ‘recognition that the EU is a Union with more than one currency’; (b) ‘no discrimination and no disadvantage for any business on the basis of the currency of their country’; (c) ‘integrity of the single market must be protected’; (d) any Eurozone developments ‘must be voluntary for non-Euro countries, never compulsory’’; (e) ‘taxpayers in non-euro countries should never bear the cost for operations to support the Euro as a currency’; (f) financial stability and supervision is a key area of competence for national institutions like the Bank of England; and (g) any issues that affect all Member States must be discussed and decided by all Member States.
These concerns could be addressed, as discussed in the prior blog post, by a mixture of reforms to the Council voting rules and a Decision of Heads of State and Government. So, for instance, there could be a delay in discussion of proposals at the behest of non-Eurozone Member States set out in the Council voting rules, with a separate legal commitment in the Decision not to forward with the proposals if the dispute cannot be settled. Only a full Treaty amendment could remove the reference to the euro as a single currency, but the Decision could refer to the existence of the euro opt-out Protocols for the UK and Denmark, plus the continued existence of other national currencies before other countries join the euro when they are eligible. The integrity of the single market and non-discrimination on grounds of currency are implicitly already in the Treaty, so could be reiterated by a Member States’ Decision; and that Decision could also set out commitments regarding voting on bail-out proposals and competence for financial regulation. A change to the Council rules of procedure and Eurogroup practice could ensure full participation of all Member States in discussions that affect the whole EU.