Mr Gove, the Minister of Justice and Lord Chancellor, told Radio 4’s Today Programme this morning that Mr Cameron’s hard fought deal in Brussels was “not legally binding.”
Downing Street has replied indignantly that Mr Gove is wrong. The current Attorney-General Jeremy Wright, and his immediate predecessor Dominic Grieve have both joined in with supportive words for the Prime Minister, although interestingly neither has actually used the words “legally binding.”
Who is right?
Lawyers like to sit on the fence, and there are one or two caveats, but essentially Mr Gove is right. The agreement is not legally binding.
On one point though he is wrong. There is no chance that the European Court of Justice will over-rule the agreement. But the reason it will not do so can hardly give any comfort to Mr Cameron. The reason the Court cannot over-rule the agreement is not that the agreement is legally watertight; it is that it has not affected either EU or UK law in any substantive way: there is simply nothing of substance for the court to over-rule. Asking the ECJ to over-rule the Brussels deal would be like asking our own High Court to over-rule a White Paper.
But by the same token because there is nothing to over-rule, nor is there anything to bind. An agreement cannot sensibly be called “legally binding” if it cannot be enforced. It is impossible to see how this deal could be enforced in any court.
EU law is made in 3 main ways.
Treaties, which are the fundamental source of EU law;
Legislation in the form of “Directives” and “Regulations” which deal with the nitty-gritty of EU law;
Judgments of the European Court of Justice (although like other Courts the ECJ would probably prefer to say that it interprets rather than makes the law).
Much of the the deal involves an agreement that either the Treaties or other European legislation will be amended. The rest involves airy declarations of principle, without which no EU document is complete.
What then of the part of the agreement that commits the leaders to bring about a treaty change. These are the sections that are headed respectively “Sovereignty” and “Economic Governance.” The Brussels deal is that:
“The substance of [the relevant sections of the Brussels agreement] will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States ….”
There have been various EU Treaties over the years. Their terms have typically been drafted and redrafted over many months. The EU officials involved have had time not just to have a quickie in a broom cupboard, as at the Brussels summit, but to develop lasting and meaningful relationships, get married and have children. But then, once a treaty is agreed at the top level, it needs to be ratified by all the individual countries of the European Union. Sometimes as with the 2004 Rome Treaty which agreed a “Constitution for Europe,” that ratification is not forthcoming, and the Treaty then does not come into force at all. Indeed the Brussels deal explicitly refers to that possibility with the words “in accordance with the … respective constitutional requirements of the Member States.” Some of those countries may have a constitutional requirement of a referendum before ratification. It only takes one referendum in, let us say, Romania, to scupper the whole thing.
At present the view seems to be that the treaty revisions being sought can be achieved by what is called the “simplified revision procedure,” under Article 48 (6) TEU. If that is correct, there is would at least be no need to invoke the extraordinarily cumbersome procedure required for an entirely new treaty.
Nevertheless, if at some unspecified point in the future (as the deal envisages) the changes agreed by Mr Cameron are incorporated into a draft treaty revision, other countries by then may well want to insist on other, as yet unknown, treaty changes being made at the same time. Depending on exactly what additional treaty changes are demanded by other countries in the future, this could even trigger the requirement under Sections 2 and 4 of the European Union Act 2011 for Britain to have another referendum before it could ratify the treaty incorporating the very changes that Mr Cameron has just agreed to. In other words, even if he wins the current referendum, it is not impossible that there will then have to be a second referendum before the treaty changes can come into force.
In short, not only is the agreement to amend the treaties presently unenforceable in law, it faces any any number of constitutional obstacles before its terms become legally binding in the sense of being enforceable in court.
Agreement to change EU legislation
The second part of the Brussels deal consists of an agreement to amend the rules on foreign nationals claiming child benefit in Britain. It is one of Mr Cameron’s proudest, and no doubt most hard fought achievements. He is perfectly entitled to trumpet it as an achievement. What he is not entitled to do is to pretend that it is, at present, legally enforceable, or in any other way legally binding.
We need not trouble ourselves with the details of the proposed benefit changes. These are the introductory words of that part of the agreement:
It is noted that, following the taking effect of this Decision, the Commission will submit proposals for amending existing EU secondary legislation as follows:
(a) a proposal to amend Regulation (EC) No 883/2004 of the European Parliament and of the Council on the coordination of social security systems in order to give Member States, with regard to the exportation of child benefits to a Member State other than that where the worker resides, an option to index such benefits to the conditions of the Member State where the child resides.
It is nonsense to say that an “agreement to propose to amend” a Regulation amounts to a binding agreement that that Regulation will be amended at all, let alone in the terms proposed in Mr Cameron’s deal.
There are procedures which need to be followed before a Regulation can be amended. It is, for sure, much easier to amend a Regulation than to amend a Treaty, but it cannot simply be assumed that it will happen. Legislation must be proposed by the European Commission, it must then be agreed by the Council and agreed – or perhaps amended – by the European Parliament. Until that happens the existing Regulation stays as it is: that part of the deal is not just legally unenforceable, it is not law at all. To pretend otherwise is the equivalent of saying that a proposal to legislate is the same as an Act of Parliament. It is patently not true.
No doubt there is every chance that, with the apparently unanimous support of every country the Regulation will be amended along the lines of the agreement, but it hasn’t happened yet and it may not happen. Mr Cameron and his fellow leaders can no more decree that an EU Regulation be amended than in this country the leaders of the political parties could get together and decree that an Act of Parliament be amended. For sure they can agree that they will use their best endeavours to do bring about such an amendment, but that is all.
Airy declarations of principle
What of the third part of the Brussels agreement, the airy declarations of principle?
Perhaps the most important of these, certainly one about which Mr Cameron has made the most fuss, relates to the phrase “ever closer union.”
“The references in the Treaties and their preambles to the process of creating an ever closer union among the peoples of Europe do not offer a legal basis for extending the scope of any provision of the Treaties or of EU secondary legislation. They should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties.”
It was presumably this part of the agreement that Dominic Grieve had very much in mind when he said this morning:
“The agreement has legal force from the day on which we indicate we want to stay in EU, thereafter the terms can be raised in any court case and the court would have to take it into account.”
Mr Grieve is an infinitely more distinguished lawyer than I will ever be, and I would not dare to disagree with him on this. No doubt in any appropriate case the Courts (whether the ECJ or the British Courts) will “take the terms of the agreement into account.” Indeed, courts generally take into account all sorts of considerations before reaching their decisions: the wording of statutes or EU legislation, previous case law, academic argument, pre-legislative documents (“travaux préparatoires”) and of course any arguments presented by the advocates for the parties. No doubt very considerable weight would be given to the terms of the agreement.
But an agreement of this sort cannot over-ride the words of a treaty, or any clear and settled European case-law. Indeed, in a 2010 case called Rottman the ECJ itself referred to other similar agreements between heads of government (which were made to persuade the Danish and Irish to sign up to Maastricht and Lisbon treaties after they had originally rejected them at referendums) as being no more than matters which had to be “taken into consideration” in the interpretation of a treaty. It cannot bind the ECJ or any other court. It is not, in short, legally binding.
Mr Grieve says in passing that the agreement is “binding in international law,” and again he may very well be right. But this is close to a sleight of hand. One of the common characteristics of much international law is that it cannot be enforced. Mr Grieve is well aware of the fact that Britain, for example, is in breach of international law by failing to pass legislation giving votes to some prisoners. But there is nothing that the international community can do about it.
What matters for the purpose of this debate is whether the agreement is binding, in the sense of being enforceable, in either EU or UK law. The answer is clear: it is not.
There is a great deal to be said for the EU. It has undoubtedly at times been a force for good, especially in Eastern Europe where the prospect of EU membership helped many countries develop democracy and free enterprise in the aftermath of Communism. It is perfectly possible that a British exit could trigger a catastrophic and disastrous collapse of the EU, as well as the collapse of United Kingdom into its component parts. The stakes in this referendum are extraordinarily high.
What is more, there is in fact quite a lot to be said for the Prime Minister’s Brussels deal. If implemented it would give Britain some advantages that are not available to other countries. But the British people will not be persuaded to vote to remain if they feel that the Prime Minister is not playing a straight hand. Pretending that his deal is something that it patently is not is a very dangerous strategy.
The first rule of advocacy is that once an advocate loses the trust of the court he or she has lost the power to persuade. As he tries to persuade the British people in the referendum that will define his place in history, it is a rule that Mr Cameron would be very well-advised to remember.