Is the Prime Minister’s Brussels Deal Legally Binding?
February 24, 2016 Politics

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.”

Gove: Cameron's deal is not legally binding.

Gove: Cameron’s deal is not 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.

  1. Treaties, which are the fundamental source of EU law;

  2. Legislation in the form of “Directives” and “Regulations” which deal with the nitty-gritty of EU law;

  3. 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.

Treaty Changes

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 wordsin 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.

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"8" Comments
  1. If it does collapse catastrophically ,like you suggest,then the whole thing can go back to what it was in the first place, i.e. a free trade area. Isn’t that w hat people were led to believe they were joining originally? So I am told anyway,being 7 at the time, there were more important things to worry about,like playing out,with my friends.

    • I’m most worried not about the collapse but the catastrophe. Europe’s natural state, after all, has been war. Whether or not the EU has helped to prevent war, its collapse could certainly help to cause it.

  2. Perhaps I am missing something but I’m not quite sure why this is significant.

    Why does it matter if the agreement is legally binding? Surely the strength behind this agreement has always been that if the EU fails to deliver the agreed changes then the UK may leave the EU. Not that we could enforce it through the ECJ.

    If the concern is that we would vote no in the referendum and then the EU would renege on the agreement and we would be left unable to enforce it, I think this is probably correct legally but I don’t think it makes a lot of sense politically. Can you imagine the outrage in Britain if this happened? There would almost certainly be another referendum.

  3. ” the whole thing can go back to what it was in the first place, i.e. a free trade area.”

    The EEC, which became the EC, which became the EU, was never a free trade area. It was a protectionist club of countries (see Hansard in the 1950s and 1960s for details).

    EFTA was a free trade area. The UK co-founded it, but had to leave it when the UK joined the EEC in 1973.

    If you want a Single Market or a Free Trade Area, then rejoining EFTA will automatically give you both of those things. No interruptions, no disruptions, no great risks to jobs, trade or the economy. In short, economic continuity would be assured.

    And no, the EU cannot stop you rejoining EFTA.

    If we rejoined EFTA, it would be the third-largest economy in the world.

    So much for ‘isolated’ and ‘alone’ eh?

  4. “if the EU fails to deliver the agreed changes then the UK may leave the EU. Not that we could enforce it through the ECJ.”

    Except that the UK’s referendum is in June 2016, whereas the EU will only deliver legally-binding changes much, much later.

    According to EU documents, any treaty changes aren’t envisaged until probably 2019-2020, and designed to come into effect by 2025.

    Meanwhile, other EU laws will be coming in throughout 2016, which will tie the UK ever closer to singular, ‘common’ EU policies and practices. This will continue in 2017. 2018. 2019. 2020. 2021. etc. Unceasingly.

    Cameron’s so-called deal will have handed over things he has not talked about. The EU Army, and the Eurozone Treasury, being the two most likely. In return, he got nothing that protects the City of London.

    He has gained precious little that he didn’t already have the power to do, and given much in exchange.

  5. “I think this is probably correct legally but I don’t think it makes a lot of sense politically. Can you imagine the outrage in Britain if this happened? There would almost certainly be another referendum.”

    It assumes that the public’s attention will stay in the issue. I doubt Cameron’s ‘deal’ will be remembered beyond a certain point. It will get lost, and the public’s will to provide enforcement via outrage is limited.

    But even if it wasn’t, how could the public enforce it? By voting out the EU’s Council? We don’t elect most of them. By voting out the EU’s Commission? We don’t elect them. By voting out the EU’s Parliamentarians? We elect only a few of them, and we’d have to remain sufficiently outraged until 2019 when the next EU Parliamentary elections come round.

    How about by voting out the Conservatives? We’d have to wait until 2020. Will public outrage last that long? Will the public use a General Election to punish Cameron for the EU’s reneging? Will the public use a GE for punishment, when they’ll be concerned, as always, mostly about jobs and wages?

    All of this is impractical and toothless.

    The forthcoming referendum is the most obvious enforcement mechanism of the public’s will.

    The UK public’s decision ideally ought to be based on assessing the EU’s constitution and functioning, its history and its stated trajectory, not on smaller or more transient issues, or issues which cannot be properly clarified.

    The public hold the reins on the 23rd June, but it’s a rare opportunity with no parallel.

  6. PS The public have no mechanism for demanding another referendum.

    And how would the public decide with sufficient clarity that the EU had, in fact, reneged on the ‘deal’? What date is the cut-off point? How would we force our MPs to give us another referendum when the next election isn’t until 2020? It’s possible that we could, but it would be an incredibly difficult thing to achieve since most people aren’t given to mass marching or civil disobedience as enforcement mechanisms over such issues.

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