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The Risk of Brexit

What does Cameron actually want?

Roger Liddle - 05 November 2015

Until now, the prime minister has kept his cards close to his chest on Britain’s EU renegotiation. What is his most desired outcome?

The frustration with Cameron in Brussels and national capitals is not because of a point blank refusal to contemplate the idea of renegotiation. Rather it has been the British government’s opaqueness in spelling out what its precise renegotiation objectives are. For two and a half years after his Bloomberg speech in January 2013, Cameron played his renegotiation cards close to his chest. There were three significant developments on what he had said then.

•    His article for the Telegraph in March 2014 offered some “detail of the specific changes” he would seek in Britain’s relationship with the EU, which for the first time raised the demand for a British opt-out from ‘ever-closer’ union and questioned Britain’s continued commitment to the European convention on human rights.
•    His party conference speech in October 2014 dramatically shifted the emphasis of his European agenda to curbs on EU migration, which had been totally absent in his Bloomberg speech.
•    His immigration speech later that year set out specific demands for changes in EU migration rules including a four-year waiting period for eligibility for in-work benefits.

The Conservative election manifesto added nothing to what had already been said, except to reaffirm the commitment Cameron had made the previous autumn that he would not lead a government unless it was firmly committed to an in-out referendum on EU membership.

Since the Conservatives’ victory in May, little new of substance has been disclosed about the government’s renegotiation objectives. The only policy shift has been tangential: the government has backpedalled on the pledge to withdraw from the European convention on human rights. The Queen’s speech pledged further consultation, not legislation. This is in part because of the inherent complexity in drawing up a British bill of rights, not least the opposition of all three of the devolved administrations within the UK. This may also be a tactical retreat on the government’s part in order to keep this policy ‘in reserve’ as a potential sweetener to Eurosceptic opinion, should the EU renegotiation not fully meet their expectations.

But for all the lack of detail, there has been a big change in the Conservative government’s mood and approach since May 2015. The renegotiation and referendum policy is now for real and the government’s approach has ceased to be casual and dilatory. The government clearly wants to press ahead speedily with the process of renegotiation. It has done nothing to squash speculation of a referendum in 2016, possibly as early as June. It has signalled a clear intent that it is aiming for an outcome which will enable Cameron to recommend a vote for Britain to stay in the EU.

Cameron has also launched a charm offensive with our partners. Before the June European council, David Cameron met or spoke to every single one of his opposite numbers individually. He invited the Commission president, Jean Claude Juncker, to spend the weekend in Chequers. He has met the president of the parliament, Martin Schulz, and the leaders of the mainstream political groups. By all accounts this exercise has paid dividends in terms of establishing a more positive and committed tone to relationships than had been in evidence before the 2015 election. Cameron is planning more bilateral contacts, as are other senior ministers including the foreign secretary and chancellor, who is exercising a strong grip on the negotiations.

There has been repeated speculation about whether or not the government’s renegotiation agenda requires treaty change. Cameron insists that it does, but with little clarity about what he means in practice by this statement. The government does not expect treaty change to be ratified in all member states before a British referendum. However the government is exploring some legally binding form of pre-commitment to treaty change. There are precedents in the Danish protocol of 1992 and the Irish protocol of 2008. Both instruments contained legally binding assurances sufficient to persuade the Danish and Irish electorates to approve treaty changes they had previously rejected in national referendums. However, these legally binding guarantees were largely specific to the member state concerned – though the Irish won a commitment that every member state would continue to have its own commissioner, kyboshing earlier plans to reduce the size of the commission. Nonetheless, it is difficult to envisage how a legally binding protocol could embrace a significantly wider agenda of treaty changes. For this would amount to a pre-negotiation before they had gone through the proper procedures laid down in the present treaties for a convention and intergovernmental conference. The EU is a legally ingenious entity but it would be difficult for our partners and the European parliament to go along with such an approach.

One possibility is that the European council might agree to issue a declaration setting out an agreed direction of change. There have been many such declarations before, for example the Laeken declaration of 2001 that set the agenda for the constitutional convention and subsequent treaty negotiations. The British stance has been relatively relaxed about such declarations in the past, precisely because they were not seen as having the same binding legal effect as treaty change: rather in cases before the European court of justice, they would be treated as strong guidance, rather as the British courts sometimes refer to ministerial second reading speeches when they look at the intentions behind legislation.

What might it then be possible for Cameron to negotiate? One can envisage that an eventual package might emerge consisting of three elements:

•    First, a protocol that contains legally binding opt-outs and guarantees specific to the UK.
•    Second, a declaration of some (but lesser) legal effect about the future direction of treaty change in the EU.
•    Third, when it comes to specific changes in EU legislation, regulation and policy, a formal white paper tabled by the European commission could be endorsed by both the European council and European parliament.The contents of such a paper could be quite detailed, including draft amendments to EU legislation. However this would have a status no different to a UK white paper. It could not pre-empt the detailed legislative process. The commission would make clear that this was not a precedent for restricting their future right of legislative initiative under the treaties; the council of ministers would still be obligated to agree the precise terms of any legislative change in detail; and the parliament could not compromise on its right to co-decide new EU legislation.

Democratic purists object to the government’s reticence in setting out its renegotiation agenda in more detail. For one thing it makes it difficult for the UK parliament to hold the government to account for its conduct of its EU renegotiation, which for all the politics is a question of vital national interest. Yet the government’s reserve is understandable from a tactical perspective. The publication of a detailed set of renegotiation objectives would be a hostage to fortune. Our EU partners would immediately be pressed to say whether they agreed or disagreed with each item on the list, which could have the effect of hardening their position in later discussions. Similarly British Eurosceptics would be emboldened to insist on a toughening up of the government’s list of demands. The government appears to be operating on the maxim: ‘we may never disclose precisely what we were asking for until we know what we’ve got’.

Certainly no discussion of substance took place at the June European council.  The British question occupied a mere ten minutes of the council’s time; there were far more pressing pre-occupations, on that occasion the Mediterranean migration and asylum crisis, with the unresolved questions of Greece hanging threateningly in the background. This must have come as a timely reminder to Cameron of how the British question could easily become viewed as a time-wasting distraction by other leaders.

The June 2015 European council conclusions merely note: "The UK prime minister set out is plans for an in-out referendum in the UK. The European council agreed to revert to the matter in December."

At the European council meeting on 15-16 October, the European council president, Donald Tusk, is expected to present a brief ‘work-in-progress’ report on technical discussions that are now taking place at official level in Brussels between British, council and commission officials. The key players on the British side in these discussions are Ivan Rogers, the permanent representative in Brussels and Tom Scholar, the head of the European and overseas secretariat in the Cabinet Office, with Cameron’s former chief of staff, Ed Llewellyn, in the background. The Foreign Office in the UK will obviously play a supporting role, with the minister of Europe, David Lidington, an energetic pro-European networker across the continent.

The commission interlocutors will include Martin Selmayr, President Juncker’s chef de cabinet, and a German Christian Democrat; Jonathan Faull, a long standing British official in the European commission, formerly director general in the commission in charge of financial services, who has been put in charge of a special unit to handle the commission’s role in the British renegotiation; and possibly first vice-president Frans Timmermans. For the council, key roles will be played by the new Danish secretary general, Jeppe Tranholm-Mikkelsen and the chef de cabinet of President Tusk, Piotr Serafin. The commission and council legal services will also be crucially involved in drafting and vetting texts and determining what change is possible within the existing treaties.

Depending on the outcome of these initial discussions, a detailed paper may or may not be prepared by the presidency of the European council and its secretariat for its 17-18 December meeting. If this paper sets out, as it may, potential areas of agreement, and alternatives where there is not, the government’s ‘asks’ will then become unavoidably much clearer. At that stage the prime minister would face a difficult – but for the moment inevitably unresolved – handling question. Is it better for the prime minister to settle for what he can achieve in private before December and announce a ‘done deal’ then, perhaps after some stage-managed late-night haggling at the European council? Or is more to be gained politically by a public row and breakdown in December that fully exposes Britain’s ‘must-haves” – but runs the risk that it might harden attitudes all round. Eurosceptic pressure from the Conservative backbenches might become unbearable. At the same time anger may grow among our partners who think too much has already been conceded to Britain.

Were there to be a high-stakes clash at the December council with a failure to agree, the government might hope to set itself up for a public relations triumph at a further European council meeting in February or March 2016. However, Cameron would run the risk that the desired “game, set and match” for Britain (as John Major famously claimed at the conclusion of the Maastricht negotiations in December 1991) could easily turn into a protracted period of long and agonising ‘tie-breaks’. These could easily end in some visible defeat or humiliation, particularly if one believes that the government has ultimately no real alternative or intention but to accept the best deal it can obtain and then sell the result to the British people.

Success also depends, as Herman Van Rompuy warned in a speech to a ‘New Pact for Europe’ conference in Brussels in October, on the ability of those in charge of the negotiations, principally Tusk, his successor, to prevent other member states bringing issues of specific concern to themselves to the table as a condition of their agreement to the British package. This may, for example, become an issue if there is a change of government in Tusk’s native Poland this autumn where the opposition Law and Justice party has a strong Eurosceptic agenda of its own; Poland will be a key to any agreement on change in treaties, legislation or policy on free movement of labour. But it could also apply to Austria, Greece, and Spain – indeed any single member state.     

In his report back to the Commons on the June European council meeting David Cameron claimed the government “have a clear plan of reform, renegotiation and referendum”. 

At the council he had set out the case for substantive reform in four areas – sovereignty, fairness, immigration and competitiveness:

"First on sovereignty, Britain will not support being part of an ever-closer union or being dragged into a state called Europe – that may be for others, but it will never be for Britain, and it is time to recognise that specifically. We want national parliaments to be able to work together to have more power, not less.

"Secondly on fairness, as the eurozone integrates further, the EU has to be flexible enough to make sure that the interests of those inside and outside the eurozone are fairly balanced. Put simply, the single currency is not for all, but the single market and the European Union as a whole must work for all.

"Thirdly, on immigration, we need to tackle the welfare incentives that attract so many people from across the EU to seek work in Britain.

"Fourthly, alongside all those, we need to make the EU a source of jobs, growth, innovation and success, rather than stagnation."

Among EU experts there are widely diverging views on what all this means and its ease of negotiability. There are those who claim they could draft overnight an outcome that could be presented as acceptable to all, which would enable the prime minister to walk away from the December council with a substantive looking agreement that he could wave to journalists (most of whom have little grip on the detail) as ‘peace in our time’. On the other hand there are those who argue that if the government is serious about real change then all of the points Britain is pressing will cause severe difficulties for at least some of our partners.

Osborne and the Treasury may be aiming to achieve substantive and difficult objectives on the question of fairness between those inside the eurozone and those outside it – the ‘euro-ins’ and ‘euro-outs’. These will not be easy to negotiate with our partners, particularly as they raise politically sensitive questions about the City of London. Moreover they involve assumptions about the consequences for the ‘euro-outs’, including the UK, of future integration in the eurozone on the nature of which there is at present no consensus between euro members. Similarly, detailed reforms to freedom of movement rules and migrant benefits are a legal and political minefield, given the potential for conflict with fundamental treaty rights and sharply divided interests within the European council.  

Of course the fundamental point is not the seriousness of the issues on the agenda, but what is regarded as an acceptable outcome. Cameron himself sometimes leaves the impression that the details are of secondary importance to the result – and in big picture terms, he is of course right. By contrast, many British Eurosceptics behave as though they think that if only Britain bangs the table hard enough, whatever is asked for is attainable. It is often forgotten in the British discussion that any European council agreement requires the assent of all member states – not just France and Germany, though that obviously helps. The EU is far from being a federal state – countries as small as Cyprus, Latvia and Malta have a technical veto over any deal. Eurosceptics sometimes forget that that is how they want the European Union to be!

Roger Liddle is co-chair of Policy Network. He is the author of the forthcoming book, The Risk of Brexit: The Politics of a Referendum, from which this article is taken

This is a contribution to Policy Network's work on The Future of the EU.

Tags: Brexit , Roger Liddle

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The Policy Network Observatory promotes critical debate and reflection on progressive politics. It is centre-left orientated but determinedly challenges social democracy. It is pro-European but restlessly questions EU institutions and practices.

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