Michael Gove has told the BBC he believes the deal David Cameron has struck, giving the UK special status within the EU, is not legally binding and could be struck down by the European court of justice in Luxembourg.
The court, the justice secretary said, “is not bound by this agreement until treaties are changed and we don’t know when that will be”. “I do think it’s important that people also realise that the European court of justice stands above every nation state, and ultimately it will decide on the basis of the treaties and this deal is not yet in the treaties,” he said.
This matters because Cameron vowed to lead the remain campaign for the EU referendum on the basis of the deal he brought back from Brussels. If months of painstaking negotiation with 27 European countries can be struck down by judges in Luxembourg then no one in the UK can be sure of exactly what they are voting for.
What is the prime minister’s response?
In short, he says Gove is wrong. A No 10 spokesman said: “It is not true that this deal is not legally binding. Britain’s new settlement in the EU has legal force and is an irreversible international law decision that requires the European court of justice to take it into account.��
Dominic Grieve, the former attorney general who has strong family links to France, came down firmly on the side of Cameron, who sacked him as the government’s legal adviser in 2014.
Grieve said: “It is fanciful to say that the agreement that the prime minister has reached does not have a force in law … The [EU] court cannot ignore it and remain a credible court.” The former attorney general said Gove should talk to his own lawyers at the Ministry of Justice.
Is it that simple? If the changes are not yet included in the treaties does the court need to take them into account?
Government sources have told me that Gove was given official advice that the UK would not be able to take legal action against other EU states if they were to renege on the deal. The same sources said that the EU commission would be only “indirectly bound” by the agreement and that changes in the EU treaty would be needed for the decision to be directly binding on the commission.
Because the deal agreed in Brussels last week is so complicated, nobody can give a simple answer to the question of whether it is legally binding. Downing Street relies on a 17-page opinion by Prof Sir Alan Dashwood QC, a hugely experienced EU law practitioner. There is also a lengthy analysis by Prof Steve Peers, of the University of Essex, helpfully summarised by the fact-checking group Full Fact.
Dashwood begins by explaining that decisions of the EU heads of state or government – such as the one reached last week – constitute “binding international agreements in simplified form”. Such treaties have previously been registered with the UN secretariat under article 102 of the UN charter.
Although Cameron seemed to set great store by registration, its only significance seems to be that it allows a treaty to be invoked before “any organ of the UN”. This seems unlikely in practice.
Peers makes the important point that the decision reached last week “is not EU law as such; it’s international law”. This view, which supports Gove’s reasoning, is confirmed by an opinion given this month by the European council’s legal counsel. By itself, then, the decision cannot change EU law. In the event of any conflict, EU law has primacy.
But Dashwood argues that because the decision “is a text concerning the interpretation and application of the EU treaties, any dispute between member states in relation to it would appear to fall within the exclusive jurisdiction of the court of justice of the EU”. This is not spelled out in the decision, but Dashwood argues that it is implicit.
He also says that, as a binding agreement based on consensus, last week’s decision by heads of state or government “can only be amended or rescinded by consensus, ie with the agreement of the UK; so, in that sense, it is irreversible”.
Once the decision enters into force, he adds, it “will have the legal character and effect of a binding international agreement”. This would be “on all fours with” previous deals done in 1992 to encourage Denmark to ratify the Maastricht treaty and in 2009 to encourage Ireland to ratify the Lisbon treaty.
Are there other potential spanners in the works?
Dashwood thinks that’s unlikely. He assumes that the deal will go through as planned, given a “remain” vote in June. Referring to the immigration-related provisions, for example, he says:
It cannot seriously be doubted that the commission will fulfil its undertaking to bring forward the two proposals necessary for the amendment of [the regulations on benefits] … I do not consider it plausible, in a situation where the UK has voted to remain within the EU and the heads of state and government decision has entered into force, that the [European] parliament would see any political advantage in putting the new settlement with the UK in jeopardy. Nor, finally, do I believe that the amendments would run a serious risk of being struck down by the court of justice.
Those, of course, are predictions – and predictions may prove wrong.
Peers agrees that the deal is binding but points out that parts of it have to be implemented separately and there are limits to its enforceability. He says:
It remains to be seen whether the European parliament will object to some or all of the legislative plans [this might become clearer closer to the referendum date]. The position of the court of justice would only be clear if a legal challenge reached it. That would most likely follow from a challenge by an individual to the implementation of the new legislation, after it’s adopted, via the national courts. So it would be some years away.
So who’s right?
At one level, the protagonists are talking about different things: Gove is discussing EU law while Cameron is relying on international law. But, as is often the case with legal disputes, there are powerful arguments on both sides. We shall just have to wait and see what the European court decides – if it ever comes to that. Meanwhile, the political fight continues.