Cameron's Chatham Household Speech: Amount Speed Ahead For The Renegotiation Of The Uk’S Eu Membership?

Steve Peers

Today’s Chatham House spoken communication past times David Cameron laid out to a greater extent than item of the UK’s demands for renegotiation of its European Union membership. It was accompanied past times a letter from Cameron to the President of the European Council, Donald Tusk, which laid out a summary of his requests.

The spoken communication besides laid out ii changes to UK police describe which the authorities plans to make, as regards the European Union Charter of Rights together with (possibly) the role of UK courts reviewing the European Union courts. Since these are changes to domestic law, they do non choose to live negotiated alongside other Member States, unless at that topographic point is a legal declaration that they would breach European Union law.

This is the latest elaboration of Cameron’s requests; I choose commented before on his specific suggestions regarding free movement of European Union citizens, together with regarding other issues. I volition advert dorsum to what I’ve said already inwards those posts where relevant.

Changes to UK police describe

On the kickoff modify to UK law, Cameron referred to the government’s plans to repeal the Human Rights Act together with supersede it alongside a ‘British Bill of Rights’, which (as he acknowledged) are separate from European Union police describe as such. But he together with thence went on to state:

“And as nosotros reform the human relationship betwixt our courts together with Strasbourg, it is right that nosotros besides consider the role of the European Court of Justice together with the Charter of Fundamental Rights. So - as was agreed at the fourth dimension of the Lisbon Treaty – nosotros volition enshrine inwards our domestic police describe that the European Union Charter of Fundamental Rights does non create whatsoever novel rights. We volition larn inwards explicit to our courts that they cannot utilisation the European Union Charter as the reason for whatsoever novel legal challenge citing spurious novel human rights grounds.”

This is a novel betoken non raised before the Chatham House speech. What should nosotros brand of it?

At kickoff sight, it is non actually whatsoever different from Article 1(1) of the exceptional Protocol on the role of the Charter inwards the UK together with Poland, which provides:

1. The Charter does non extend the powerfulness of the Court of Justice of the European Union, or whatsoever courtroom or tribunal of Poland or of the United Kingdom, to detect that the laws, regulations or administrative provisions, practices or activity of Poland or of the Great Britain are inconsistent alongside the key rights, freedoms together with principles that it reaffirms.

A clause inwards the preamble to this Protocol provides:

WHEREAS the Charter reaffirms the rights, freedoms together with principles recognised inwards the Union together with makes those rights to a greater extent than visible, but does non create novel rights or principles;

So the Prime Minister’s commitment to modify UK police describe could live met just past times making limited reference to these provisions of the Protocol – or past times incorporating their wording – inwards an Act of Parliament. This would just reiterate the application of these rules to the UK, given that the Protocol already applies inwards UK police describe past times virtue of the European Communities Act.

Any to a greater extent than far-reaching approach (such as that advocated past times a House of Commons commission lastly year, as discussed here) would run the opportunity of complicated breaches of European Union law. It’s impossible to say instantly whether that would guide house or not, inwards the absence of  any proposed legislation on this point.

For the sake of context, it should live noted that the CJEU has ruled inwards the NS case that the Charter did non add together whatsoever rights to the ‘general principles of European Union law’, which were the reason for protection of human rights inwards the European Union legal scheme prior to the Treaty of Lisbon. And inwards Fransson, the Court ruled that the orbit of the Charter (ie when it applied to Member States’ action) was the orbit of the full general principles. True, the Charter tin flame live used to laid aside Acts of Parliament, fifty-fifty past times the lower UK courts, as inwards recent cases involving embassy staff together with Google. But that’s truthful of European Union police describe generally, including the previous full general principles, as nosotros saw inwards judgments similar Kucukdeveci.

The Prime Minister’s instant pledge was to consider whether to innovate a national banking company check on European Union measures similar that asserted past times the High German Federal Constitutional Court, concerning the loss of ‘essential constitutional freedoms’ together with the review of acts past times the European Union institutions to banking company check if they stay inside the orbit of the EU’s powers.

Such a mensurate would breach European Union police describe inwards principle, since the CJEU has long ruled that it is the sole guess of whether an European Union police describe is invalid. But Cameron is right to betoken out that other national constitutional courts choose done the same thing. Influenza A virus subtype H5N1 full-bodied constitutional conflict has been avoided inwards do because those other courts choose been reluctant to utilisation those powers, together with because the CJEU has maintained a dialogue alongside them (which does non extend to agreeing alongside them all the time: run across news of the recent illustration police describe on the ECB’s OMT scheme).

It should live noted that the ‘essential constitutional freedoms’ which Cameron refers to are fundamental rights as protected past times the High German Basic Law (the de facto High German constitution). It remains to live seen whether the ‘British Bill of Rights’ which Cameron plans volition protect human rights thence strongly inwards the UK that at that topographic point is whatsoever existent prospect of the European Union taking those rights away. If not, Cameron’s proposal looks similar the constitutional equivalent of shaving all his pilus off, piece simultaneously insisting on the key importance of his comb.

Changes to European Union police describe

Cameron’s spoken communication essentially rehashed the key features of his prior demands for changes to free motility law, as discussed inwards the prior weblog post. It should live noted that it is clear from to a greater extent than recent CJEU rulings (the Alimanovic ruling, discussed here) that Universal Credit tin flame live legally denied to first-time European Union job-seekers (one of the points inwards his list), because it doesn't qualify as a do goodness concerning access to the labour market. That ruling mightiness besides larn inwards easier to ameliorate European Union legislation to deny benefits to European Union citizens who become unemployed inside their kickoff 4 years of entry inwards the UK. But it notwithstanding seems unlikely that in-work benefits could easily live restricted, without a Treaty amendment.

On other issues, Cameron’s proposition to convey together all commitments relating to competitiveness into a unmarried text are rather unclear. It is striking that he has non demanded the repeal or amendment of specific European Union legislation. (It’s a Euromyth – or perhaps nosotros should telephone call upwards it a Cameronmyth – that he has e'er made such specific demands. At least, they don’t appear inwards his keynote speeches on European Union renegotiation; run across the previous 'Bloomberg speech', for instance).

Next, on the number of ‘sovereignty’, Cameron wants: (a) a ‘clear, legally binding together with irreversible understanding to terminate Britain’s obligation to travel towards an e'er closer union’; (b) ‘a novel scheme where groups of national parliaments tin flame come upwards together together with decline European laws which are non inwards their national interest’; (c) ‘clear proposals to achieve’ subsidiarity; together with (d) ‘confirmation that the European Union institutions volition fully honour the role behind’ the UK’s opt-out from JHA matters. He besides states that ‘national security’ is a sole competence of Member States.

The national safety together with JHA points are novel as compared to previous demands. It isn’t clear what Cameron is seeking as regards national security; the Treaties already province inwards Article 4(2) TEU that ‘national safety remains the sole responsibleness of each Member State’. As for the JHA points, the UK has lost a few cases on social safety rules for 3rd countries jump to the European Union past times an association understanding (see here, on i such case); it has besides quibbled well-nigh whether the opt-out applies to parts of treaties alongside 3rd U.S. (on this point, run across news here of a relevant CJEU judgment). Since the ‘legal bases’ which split the JHA competences from other Treaty rules are laid out inwards the Treaties, it is non clear what could live done here. Indeed it’s non clear just what Cameron is asking for.

It’s as unclear what he is asking for as regards subsidiarity. There is a Protocol on subsidiarity but it would demand to live amended past times the total Treaty amendment process. Equally the slightly to a greater extent than specific demands regarding national parliaments would besides entail, inwards principle, an amendment to the Protocols on subsidiarity together with national parliaments.

However, it would live possible – without a Treaty amendment – to give roughly stronger legal resultant to the regulation of subsidiarity, together with to strengthen the role of national parliaments, past times amending the rules on Council voting, as suggested inwards item inwards my previous blog post. This would entail a requirement to delay a vote inwards Council on grounds of subsidiarity together with national parliament objections. This could live coupled alongside a legal commitment past times Member States, inwards the shape of a legally binding Decision of Member States’ Head of State together with Government, non to press ahead alongside a vote inwards Council if at that topographic point were no understanding on the proposal later on the stream of discussion. As explained there, the Council voting rules together with Member States’ Decisions tin flame alone live amended past times unanimity, thence at that topographic point would live legal safety for the UK.

This leaves us alongside the demand regarding ‘ever closer union’. Only a total Treaty amendment could abolish the dominion or exempt the UK from it as such, since it appears non alone inwards the preamble to the TEU but (as many seem to forget) inwards the primary text – Article 1 TEU. However, it could live arguable that a legally binding Decision of Member States’ Head of State together with Government tin flame clarify that this does non hateful (for instance) that the UK is jump to sign upwards to Schengen or the unmarried currency, or must surrender its JHA opt-outs or bring together an European Union Earth forces (and thence on). Such legally binding Decisions are alone valid nether European Union police describe if they do non contradict the Treaties; but at that topographic point would live no such conflict if the Decision just confirmed existing legal rules.  

The lastly batch of proposals (although they came kickoff inwards the speech) concern the human relationship betwixt the UK (and other non-eurozone States) together with the Eurozone. They comprise: (a) ‘recognition that the European Union is a Union alongside to a greater extent than than i currency’; (b) ‘no discrimination together with no disadvantage for whatsoever line organization on the reason of the currency of their country’; (c) ‘integrity of the unmarried marketplace must live protected’; (d) whatsoever Eurozone developments ‘must live voluntary for non-Euro countries, never compulsory’’; (e) ‘taxpayers inwards non-euro countries should never acquit the toll for operations to back upwards the Euro as a currency’; (f) fiscal stability together with supervision is a key expanse of competence for national institutions similar the Bank of England; together with (g) whatsoever issues that acquit upon all Member U.S. must live discussed together with decided past times all Member States.

These concerns could live addressed, as discussed inwards the prior weblog post, past times a mixture of reforms to the Council voting rules together with a Decision of Heads of State together with Government. So, for instance, at that topographic point could live a delay inwards news of proposals at the behest of non-Eurozone Member U.S. laid out inwards the Council voting rules, alongside a separate legal commitment inwards the Decision non to forwards alongside the proposals if the dispute cannot live settled. Only a total Treaty amendment could take the reference to the euro as a unmarried currency, but the Decision could advert to the beingness of the euro opt-out Protocols for the UK together with Denmark, addition the continued beingness of other national currencies before other countries bring together the euro when they are eligible. The integrity of the unmarried marketplace together with non-discrimination on grounds of currency are implicitly already inwards the Treaty, thence could live reiterated past times a Member States’ Decision; together with that Decision could besides laid out commitments regarding voting on bail-out proposals together with competence for fiscal regulation. Influenza A virus subtype H5N1 modify to the Council rules of physical care for together with Eurogroup do could ensure total participation of all Member U.S. inwards discussions that acquit upon the whole EU.

Photo credit: www.eurogamer.net

Barnard together with Peers: chapter 2, chapter 9

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