Steve Peers
David Cameron’s recent speech at Chatham House provided more specifics about the UK’s demands for renegotiating its EU membership. These demands were summarized in a letter from Cameron to European Council President Donald Tusk.
Cameron also outlined two planned changes to UK law regarding the EU Charter of Rights and potentially the role of UK courts in reviewing EU court decisions. As these changes pertain to domestic law, they don’t require negotiation with other Member States unless they potentially violate EU law.
This represents the latest development in Cameron’s requests. I’ve previously addressed his proposals concerning the free movement of EU citizens and other matters. I’ll reference my earlier comments where applicable.
Changes to UK law
Cameron highlighted the government’s intention to replace the Human Rights Act with a “British Bill of Rights,” acknowledging that this is separate from EU law. However, he then added:
“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 new point raises several questions.
Initially, it doesn’t seem significantly different from Article 1(1) of the Protocol on the Charter’s role in the UK and Poland, which states:
1. 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.
The Protocol’s preamble also includes a clause stating:
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;
Therefore, the Prime Minister’s commitment could be fulfilled by explicitly referencing or incorporating these Protocol provisions into an Act of Parliament. This would reiterate their application to the UK, as the Protocol already applies under the European Communities Act.
A more extensive approach could lead to complex violations of EU law, though it’s impossible to definitively assess this without legislative proposals.
It’s worth noting that the CJEU ruled in the NS case that the Charter didn’t introduce new rights beyond the “general principles of EU law,” which safeguarded human rights in the EU legal system before the Treaty of Lisbon. The Fransson case saw the Court ruling that the Charter’s scope mirrored that of the general principles. While the Charter can overturn Acts of Parliament, even in lower UK courts, this also applies to EU law generally, including previous general principles.
Cameron’s second pledge involved exploring a national check on EU measures, similar to the German Federal Constitutional Court’s approach regarding the loss of “essential constitutional freedoms” and ensuring EU institutions act within their powers.
Such a measure would, in principle, breach EU law, as the CJEU is deemed the sole authority on EU law validity. However, Cameron rightly points out that other national constitutional courts have taken similar measures. Open conflict has been avoided because these courts rarely use these powers and the CJEU maintains a dialogue with them.
Notably, the “essential constitutional freedoms” Cameron mentioned are “fundamental rights” protected by Germany’s Basic Law. It remains to be seen whether Cameron’s proposed “British Bill of Rights” will offer similarly strong human rights protections in the UK.
Changes to EU law
Cameron’s speech largely reiterated his prior demands for changes to free movement law. Recent CJEU rulings suggest that denying Universal Credit to first-time EU job-seekers is legal, as it’s not considered a benefit related to labor market access. This ruling might also simplify amending EU law to deny benefits to unemployed EU citizens within their first four years in the UK. However, restricting in-work benefits would likely require a Treaty amendment.
Cameron’s suggestion to consolidate commitments related to competitiveness is unclear. Notably, he hasn’t demanded the repeal or amendment of specific EU legislation.
Regarding “sovereignty,” Cameron wants: (a) a legally binding agreement ending Britain’s obligation to pursue an “ever closer union,” (b) an arrangement allowing national parliament groups to reject unfavorable EU laws, (c) concrete proposals for achieving subsidiarity, and (d) confirmation that EU institutions will respect the UK’s opt-out from JHA matters. He also emphasizes national security as a Member State competence.
The points on national security and JHA are new. It’s unclear what Cameron seeks regarding national security, as Article 4(2) TEU already designates it as a Member State responsibility. Regarding JHA, the UK has lost cases on social security rules for third-country nationals bound by EU association agreements. Additionally, the legal bases separating JHA competences from other Treaty rules are defined within the Treaties.
Similarly, his demands regarding subsidiarity are ambiguous. While a Protocol on subsidiarity exists, amending it requires a full Treaty amendment process. The same applies to his demands concerning national parliaments.
However, strengthening subsidiarity and national parliament roles could be achieved without a Treaty amendment by modifying Council voting rules. This could involve delaying votes on subsidiarity grounds or due to national parliament objections, coupled with a legally binding commitment from Member States to halt proposals lacking agreement after discussions.
As for “ever closer union,” only a full Treaty amendment could abolish the rule or exempt the UK, as it’s enshrined in the TEU preamble and Article 1 TEU. However, a legally binding Decision from Member States’ Heads of State and Government could clarify that this doesn’t obligate the UK to join Schengen, the eurozone, or an EU army, for example.
Finally, Cameron addressed the relationship between the UK and the Eurozone, proposing: (a) recognizing the EU as a multi-currency union, (b) prohibiting currency-based discrimination against businesses, (c) protecting the single market’s integrity, (d) ensuring Eurozone developments remain voluntary for non-euro countries, (e) preventing non-euro taxpayers from bearing the cost of supporting the euro, (f) affirming financial stability and supervision as national competences, and (g) ensuring all Member States participate in discussions affecting the entire EU.
These concerns could be addressed through Council voting reforms and a Decision from Heads of State and Government. For instance, Council voting rules could include delaying discussions at the request of non-Eurozone Member States, with a separate commitment to halt disputed proposals. While removing the euro as a single currency necessitates a full Treaty amendment, the Decision could reference the euro opt-out Protocols and the continued use of other national currencies. A Decision could also reiterate the existing Treaty principles of single market integrity and non-discrimination based on currency and outline commitments regarding bailout proposal voting and financial regulation competence. Amending Council rules of procedure and Eurogroup practices could ensure all Member States participate in relevant discussions.
Photo credit: www.eurogamer.net
Barnard and Peers: chapter 2, chapter 9