The Labour rebels' agenda: an analysis

According to today's Daily Telegraph, 'Labour MPs' (by which they mean some Labour MPs) have a list of 12 changes they want to see to the Reform Treaty. Let's look at these in turn (I am using the Telegraph's description of this agenda -- it is possible that there is an official version of this agenda which is more precise or differently worded in some respects. I can't find one on Ian Davidson's website).

The point I want to examine in particular is how much scope there might be to re-open negotiations on any of these points -- although I doubt that an attempt to renegotiate any point will be well received by other Member States.

1) 'keep policing and criminal justice away from the Court of Justice'. Read literally, this is a stupid position to take, since the Court of Justice already has jurisdiction in these areas. Presumably the rebels' point is that the UK should keep its current opt-out as regards references from its national courts on these issues. The UK could perhaps argue that all Member States should retain such an opt-out (about half of them have used it), or at least that the UK (and perhaps Ireland) alone should have such an opt-out. A compromise position could be that the UK could be permitted to restrict references to final courts only (and perhaps even make references optional for final courts).

Of course, judgments of the Court following references from other Member States' courts would have the force of precedent in the UK -- unless the European Communities Act makes clear that (as at present) the precedential effect of Court rulings does not apply in this area. There would still be a persuasive effect of Court of Justice rulings on the UK courts, but that is already the case under the current regime -- ie the House of Lords has already followed the Pupino judgment on the indirect effect of framework decisions.

One thing the UK could do unilaterally, even without changing the text of the Reform Treaty, is to specify in the European Communities Act that judgments of the Court of Justice in this area would only have persuasive effect, unless the reference came from a UK court. After all, there is no obligation in EU law to provide for such a strong precedential effect of Court of Justice judgments as the European Communities Act provides for. A more radical unilateral move would be to specify in the Act that in all cases, judgments of the Court of Justice only have persuasive effect, unless the reference came from a UK court.

But there is also the separate issue of jurisdiction over infringement actions, which the Reform Treaty would introduce. It would be hard to argue that other Member States, but not the UK, should be subject to this jurisdiction.

conclusion: a total opt-out for the UK from jurisdiction over references should satisfy the critics (although they might still whinge about the jurisdiction over infringement actions. God forbid that the UK should have to implement measures it has opted into!). It seems hard to believe that this significant concession could now be extracted from the other Member States, having already extracted the UK's opt out from legislation in this area. The government could propose that the European Communities Act will limit the effect of Court of Justice judgments in this area, or more generally.

2) 'prevent the Court using EU competition law to undermine public services'. The Reform Treaty includes a Protocol on the 'public services' clause, which was not found in the Constitutional Treaty, which Eurosceptic groups like Open Europe tend not to refer to. I cannot judge the effect of this Protocol, as I am not a competition lawyer.

conclusion: The government could either make more noise about the existence of this Protocol (which perhaps has been overlooked in this country because it was a Dutch 'red line', not the UK's), or (more implausibly) seek to get it amended (or at least clarified in a declaration) if it is felt to be insufficient on this point.

3) 'scrap the new post of EU foreign policy chief and the EU diplomatic service'. This is an obvious deal-breaker that other EU Member States will not agree to unless the ratification process of the Reform Treaty collapses entirely (and perhaps not even then). The best that could be hoped for here, falling short of a veto, is to clarify and ideally weaken the post. It could be specified that the Member States may, not shall, ask that the High Representative speak in the Security Council on the EU's behalf. It could also become an option only that the High Representative will chair the External Relations Council. It could be specified more clearly that the High Representative can only act within the limits set by the Member States' foreign ministers, and that national diplomatic services are retained and not replaced by the EU service (in fact the Treaty refers to national diplomatic services several times expressly; the EU service consists of seconded staff only. But the point could be made clearer to satisfy the critics).

It is clear, from an objective viewpoint, that in the IGC mandate the goverment got a 'good deal' as regards policing and criminal law and the Charter, but didn't get much (apart from a specific clause on data protection and the limitation of the scope of Article 308 EC) as regards foreign policy. (Of course, the critics will never admit that the UK got a good deal on anything, and the government will never admit that it had to compromise its position on anything).

Anyway, it is often forgotten that Article 23(1) EU allows any Member State just to opt out of any foreign policy decision. This will be retained by the Reform Treaty. Perhaps the government should make more of this clause.

conclusion: a radical change of the text is impossible, but it is possible that clarifications regarding the High Representative and external acton service could be agreed, and (more unlikely) that the High Representative's wings could be clipped.

4) 'Member States to regain international aid budgets'. Read literally, this is claptrap -- in the Reform Treaty, international aid is a shared but parallel competence, as it is at present (meaning the UK can give as much or little aid as it likes to developing countries, regardless of what the EU does). Perhaps the point is that the Member States should regain exclusive competence over international aid -- this is an unrealistic position to take, since killing the Reform Treaty would leave us with the status quo on this point, ie shared but parallel competence. So killing the Reform Treaty would not accomplish this objective.

Anway, shared but parallel competence means that this is additional aid given to developing countries by the EU on top of national budgets. So if the EU's development aid powers are abolished, total aid flows to developing countries will be cut, unless you believe that all this aid is stolen by Commission officials (which would surely have been noticed by the Court of Auditors by now!), or that Member States would agree that they will make up from their national aid budgets all the EU aid that will be cut. How likely is that? Are the Labour rebels seriously supporting a cut in aid to developing countries?

Or perhaps the point is that Member States should retain control over a particular aid fund, the EDF, which is implicitly the subject of a particular clause in the current Treaty, which would be abolished by the Reform Treaty. It is not clear anyway whether this particular clause guarantees the continuance of Member States' control over this fund, or how the legal position would change if it were dropped.

conclusion: hard to judge since the rebels' position is unclear -- but that may be the fault of the Telegraph.

5) 'scrap new rules that allow a 'passerelle' to further majority voting without treaty amendments': a weak argument, since the application of the new general passerelle clause would be subject to unanimity of Member States and the prospect for national parliaments to block the process within the six months of the decision.

conclusion: easy to address this concern by an amendment to the European Communities Act specifying that the UK government will withhold final consent to the use of any passerelle (ie including the specific passerelles relating to social policy, environmental law, family law, the financial framework and foreign policy -- only the last two are new) unless both Houses of Parliament have voted in favour

6) 'drop plans for further extension of majority voting and stick with the provisons agreed at Nice in 2000': this appears to confuse the separate issues of the scope of majority voting and the mechanism for majority voting (again this may be the fault of the Telegraph). Since the UK has an opt-out or emergency brake over all the signficant extensions of QMV in the Reform Treaty (ie legal migration, foreign policy, policing and criminal law, aspects of monetary union, social security, expanded competence over other aspects of immigration, asylum and civil law), further objections would be a particularly difficult sell to other Member States -- although it would be useful to specify expressly that when the European Council is asked to deal with an issue after an emergency brake has been pulled, it must act by unanimity, rather than by 'consensus', which is not defined. Or alternatively, the Treaty should define 'consensus'.

This point is anyway irrelevant for foreign policy, where the Treaty specifies that the European Council should act unanimously if the emergency brake is pulled. But it would be better to specify expressly that when the European Council asks the High Representative to make a proposal, which in turn triggers QMV, the European Council acts by unanimity, not consensus (or again, alternatively, define 'consensus'.

As for the mechanism for majority voting, this is perhaps the single most difficult issue in the Treaty, and Poland only managed to get a (significant) delay in application of the new rules. While a better rule more favourable to the UK could be imagined, as I have set out in previous posts, it is hard to imagine that this issue could be reopened again, at least to the extent of giving up on any change. Rather the government could point out that the changes obtained by Poland also work to the advantage of the UK, in delaying the dilution of our ability to form blocking minorities as well (albeit at the cost of making it harder during that time to put together a majority in favour of a proposal in the UK's interests). Anyway, I suspect many Labour MPs and trade unions would want to see the UK outvoted on the working time and temporary workers' directives...have they thought their position through?

conclusion: a clarification/amendment regarding the functioning of emergency brakes is perhaps just about possible -- for the rest, dream on

7) 'drop plans for a list of areas of shared competence': what a load of cobblers. The EU and Member States already share competence over a large number of areas and the list of shared competences in the Reform Treaty essentially confirms this. If the clause listing the shared competences is dropped, this would be purely cosmetic; if the UK actually is going to spend political capital trying to obtain further changes to the text it would be mad to spend it on changes that are purely cosmetic, rather than substantive changes. Dropping this clause would not change the status quo.

Is the idea that the EU's action should be limited to areas of exclusive competence? Or that Member States can pre-empt the EU in areas of shared competence? Either way the EU would be so ineffective that there would be no point to its existence. Advocates of this position simply need a short explanation of EU law. If they still maintain their position after that then they are just being intellectually dishonest -- they should simply be calling for UK withdrawal from the EU.

conclusion: learn some EU law

8) 'return powers over regional spending to national governments': is the idea to scrap the EU's state aid rules, its regional policy, or both? Would this be helpful to UK businesses competing with state-funded adversaries from other Member States, or the beneficiaries of EU aid in the UK?

In any case the argument is strategically stupid -- because the Reform Treaty does not alter the rules on regional policy whatsoever. So rejecting it would make no change in the status quo on this point.

conclusion: the rebels should make sure that they are shooting at the right target, and indeed that they are not shooting at themselves

9) 'enable the government to 'automatically' deport foreign criminals': again (*sigh*) the Reform Treaty has nothing do with this. so rejecting it would make no change in the status quo on this point. The rules stem from legislation originally dating before we joined the EEC, and case law and legislation since.

conclusion: learn some more EU law

10) 'scrap plans to deprive national voting rights if they breach EU economic rules': well, so what? Voting on sanctions against naughty Member States is by QMV, so the accused State does not have a veto, and the sanctions (for non-participants in monetary union) are toothless anyway. Even for eurozone Member States, the sanctions are toothless since France and Germany gutted the Stability Pact in 2003.

conclusion: why bother? We might as well insist on legislation banning flea bites.

11) 'abandon plans to give Brussels the power to determine composition of the European Commission': what on earth does this refer to? Are the rebel MPs confused or just the Telegraph?

If this refers to the appointment of the Commission President, the Reform Treaty basically confirms the status quo that the EU leaders choose a candidate and the EP votes for or against the candidate. OK, the Treaty states that the EP is 'electing' the President and that the selection must 'take account' of EP elections, so the EP may be more pushy about using its powers. But it could, and probably will, get gradually pushier at using the powers it has already, even though they are described differently. So changing this would not alter the status quo.

Does it refer to the selection of other Commissioners? The Reform Treaty confirms the status quo that they must be selected on the basis of national proposals, and then approved by the Commission President-elect, and then the whole Commission must be approved by the EP and Council. So rejecting this changes nothing.

Is the objection to the cut in the number of Commissioners? The existing Treaty requires them to be cut from 2009, whereas the Reform Treaty delays this until 2014, and gives the Member States the option to alter the numbers of Commissioners. So rejecting the Reform Treaty wouldn't alter the fundamentals of the status quo -- rather it would bring forward the cut in the number of Commissioners.

Is the objection to the power of EU leaders to determine the criteria for rotation of Commissioners? Again the current Treaty provides for this power, requires its use from 2009 rather than 2014, and gives EU leaders carte blanche over the criteria, whereas the Reform Treaty specifies some criteria. Anyway Member States have a veto agreeing on the criteria.

Is the objection to the power of EU leaders to alter the number of Commissioners? Well, rejecting this clause would alter the status quo -- since under the current Treaties the number of Commissioners must be cut from 2009 and there is no power to alter this. But isn't it better to have flexibility over the number of Commissioners, considering that each Member State has a veto on this issue? Anyway such a power existed throughout the history of the EU until 2004 -- it hardly seems worth dying in a ditch for.

conclusion: sort yourselves out

12) 'retain national veto over trade agreements relating to public services' -- This is a valid argument, although again it is difficult to see how the Treaty could easily be renegotiated on this point now the IGC mandate has been agreed.

conclusion: there is a case for this, but is this a realistic objective?

It is interesting to note that the Labour MEPs are not raising an issue about the Charter opt-out. Rather the unions are objecting to the opt-out. But it is hard to see how a referendum on the Treaty, which is sure to produce a 'no' vote, will secure the objective of increasing social rights in the UK. Rather it is likely to kill the Treaty dead, and I can't see how more social rights would arise like a phoenix from the Treaty's ashes. A referendum on the Treaty without the Charter opt-out (ie supposedly with the social rights) would surely produce a 'no' vote as well, indeed probably a bigger one because the British public, apart from the unions, have been convinced that the Charter would murder us all in our beds.

Anyway, have the unions actually taken competent legal advice as to whether a fully binding Charter would in fact achieve anything at all for them? Is Article 51 of the Charter, and the constant jurisprudence of the Court of Justice limiting the scope of the general principles of EC law, totally meaningless?

Furthermore the rebels make no issue about the legal personality of the EU, or the president of the European Council, or the EU's criminal law powers. So they do show some sense on these points (see my previous posts on these non-issues).

Also, there is no mention of the opt-outs from policing and criminal law, although the chief supporter of these demands, Ian Davidson, is quoted on the BBC site as saying that the Court of Justice would not respect them. Again, if our opt-outs are not respected by the EU, how come we have not been forced to accept monetary union, the abolition of border controls or the EU immigration legislation that we have opted out of?

Overall conclusion: points 4, 7, 8, 9 and 11 are just confused and vetoing the Reform Treaty on these grounds would not change the status quo. Point 5 is already covered by sufficient safeguards -- the European Communities Act could clarify its application in national law. Point 10 is not worth fighting.

This leaves points 1, 2, 3, 6 and 12, where it is just about imaginable that the government could get clarifications or even changes to the text as regards 1, 2 and 3 (but not as much as the rebels want as regard points 1 and 3) but little chance that they could get much as regards points 6 and 12. If the government is, say, able to get an opt-out or a limitation regarding the Court's jurisdiction over policing and criminal law, and further able to get the High Representative's wings clipped, will there still be 120 Labour MPs (assuming there are really that many already) so keen to demand a referendum that would work in practice to the benefit of the Conservative Party?