David Cameron faces major obstacles in renegotiating Britain’s relationship with the European Union. On the shopping list he included in his speech at Chatham House were plans to stop EU migrants claiming benefits until they have paid into the system for four years, to control immigration from within the EU, and to limit the power of the EU court of justice in Luxembourg.
But the obstacles Cameron faces are more political than legal. The EU is a treaty-based organisation. Treaties can be amended with the agreement of the states that signed them. If the other 27 EU member states accept the UK’s demands, lawyers would eventually find a way of incorporating those amendments into treaty changes. So the prime minister can be forgiven for dismissing the “precise legal changes needed to bring about the reforms Britain needs” as a matter for negotiation.
That may be of little comfort to people with specific concerns, such as British pensioners living in other EU countries. But the only answer to their questions must be: wait and see. It all depends on the negotiations. And even if the UK were to pull out of the EU after a referendum, it would take a couple of years for parliament to pass the necessary legislation and give effect to whatever had been decided.
Cameron’s strongest argument for a more flexible relationship with the EU is that the union does not require all its members to follow the same legal rules. The UK allows free movement of its citizens while maintaining border controls. It has full access to the single market while retaining its own currency. If the lawyers have managed to enshrine those principles in the EU treaties, they should have no difficulty in giving effect to whatever the political leaders may agree.
The prime minister’s real challenge, though, is to persuade his EU counterparts that the UK’s proposals would be good for them as well as for him. Some states might welcome a “new arrangement where groups of national parliaments can come together and reject European laws which are not in their national interest”. Others would see the proposal as undermining the integration that is at the heart of the European project.
Turning to his demand for greater control of migration from the EU, the prime minister recognised that restructuring social security and welfare benefits could pose problems for other member states. He said he was open to different ways of dealing with the issue. But there are really only two possibilities: either all EU members change their benefit rules to make the entire EU less attractive for migrants, or the other states allow the UK to undermine the principle of free movement by accepting Cameron’s demands, in this case that people who enter the UK from other EU countries must pay social security contributions for four years before qualifying for in-work benefits or social housing.
At the risk of confusing those who cannot grasp that there are two separate European courts, Cameron wants to alter the government’s relationship with both of them. A consultation paper is expected next month on human rights. But since the government is not proposing to withdraw from the human rights convention, the proposed British bill of rights will not affect the UK’s treaty obligations or its formal relationship with the European court of human rights in Strasbourg. It may not make much difference.
Much more interesting is the UK’s relationship with the court of justice of the European Union, the EU’s own court in Luxembourg. The prime minister appears to have heeded a call last month by Professor Guglielmo Verdirame of Kings College, London, for national courts not to follow EU judgments that they regard as unconstitutional.
At first sight, this seems pretty revolutionary stuff. But Cameron observed that the German constitutional court retained the right to review whether essential freedoms were respected when powers were transferred to Europe. He said the German court also checked that decisions by EU institutions and courts were within the EU’s powers.
Could we do something similar? It might be harder for our courts to declare EU laws unconstitutional when we don’t have a written constitution. On the other hand, the flexibility of our constitutional arrangements might make it easier. Verdirame predicted that “the EU might back down rather than confront judges, government and parliament”.
There is no doubt that both the human rights court in Strasbourg and the EU court in Luxembourg are sensitive to the political realities. Strasbourg sometimes allows governments what it calls a margin of appreciation – room for manoeuvre. Luxembourg sometimes sends cases back for national courts to resolve, having provided advice on EU law that leaves nobody any the wiser. Both courts seek to avoid confrontation with the UK if possible. Cameron may well find that they back down if he calls their bluff.
Nobody can be sure whether the prime minister will come away from these negotiations with a better deal than he has now. No one knows whether the agreement he’ll get will be enough to win him the support of a referendum. But where there’s a political will, there’s a legal way.