PRESS RELEASE : Vote Leave response to David Cameron’s speech: The PM’s renegotiation demands are trivial: they won’t take back control

The press release issued by Vote Leave on 10 November 2015.

Reacting to David Cameron’s speech this morning, Dominic Cummings, Campaign Director of Vote Leave, said:

“The public wants the end of the supremacy of EU law, to take back control of our democracy and borders, and to spend the money wasted in Brussels on our priorities like the NHS and science. Cameron’s renegotiation isn’t even asking for this – he is only promising to change what he already thinks the EU will give him. People won’t trust his spin. The safest choice is to Vote Leave.”

On what was missing from the speech:

The Prime Minister has already shelved nine out of ten of his demands. David Cameron used to have a longer list of demands to secure the ‘fundamental, far-reaching change’ which he talked about as recently as his 2013 Bloomberg speech. Vote Leave research has shown that 92 per cent of the pledges David Cameron has made to change the EU since he became leader of the Conservative Party look like they will not be delivered by his EU renegotiation – either because they have been shelved, or because they require treaty change. This includes black-and-white promises on crucial parts of the UK’s relationship with the EU, such as:

Securing treaty change before the referendum. In January 2015, the Prime Minister said his plans ‘do involve … proper, full-on treaty change’ (The Guardian, 4 January 2015, link).

Taking back control of employment and social regulations. In 2005, Cameron stated that ‘our aim should be to take back control of employment and social regulation’ (David Cameron, Policy Programme, 10 October 2005, link).

Limiting ECJ jurisdiction over criminal law. In 2009, Cameron promised to ‘limit … the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level’ (BBC News, 4 November 2009, link).

Requiring EU migrants to have a job offer before coming to the UK. In November 2014, the Prime Minister claimed that ‘we want EU jobseekers to have a job offer before they come here’ (BBC News, 28 November 2014, link).

Requiring EU jobseekers to leave after six months. Cameron promised in 2014 that ‘if an EU jobseeker has not found work within six months, they will be required to leave’ (BBC News, 28 November 2014, link). Yet as the ECJ ruled in September this year, ‘Union citizens who have entered the territory of the host Member State in order to seek employment may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.’ Today, the Prime Minister ignored that ruling and claimed he had achieved his objective.

Ending the European Parliament sitting in two places. The Conservative European Parliamentary Manifesto of 2009 said that: ‘The European Parliament must end its absurdly wasteful practice of meeting in Strasbourg as well as Brussels’.

Reforming the Common Agricultural Policy. The Conservative Party Manifesto of 2015 stated that ‘We will push for further reform of the EU’s Common Agricultural Policy’. Cameron did not mention agriculture in his speech.

Reforming EU structural funds. The Conservative Party Manifesto of 2015 pledged ‘further reform of… Structural Funds.’ Structural funds were not mentioned in Cameron’s speech.

A full list of the pledges which have been shelved is available in this Vote Leave research paper.

On Cameron’s four objectives

1. ‘protect the single market for Britain and others outside the Eurozone’

Asking the EU formally to recognise that the currency of the UK is the pound sterling shows how stuck in the past the EU is – it’s more than a decade since we made clear that the UK would not be joining the single currency (despite calls from the CBI and others for us to do so). As Cameron acknowledges in his letter, ‘the United Kingdom has a permanent opt-out from the Eurozone.’

The UK can be permanently outvoted by the Eurozone. The UK has extremely little influence inside the EU’s institutions. Our presence in the two key bodies – the Council of Ministers and the Parliament – has declined over our forty years of membership. We are now set to be permanently outvoted by the Eurozone caucus in the Council of Ministers. Since records began, the UK has not managed to block a single proposal placed in front of the Council from becoming EU law. On all 72 occasions on which the UK has voted against a measure in the Council of Ministers, it has gone on to become law – 40 of these since David Cameron became Prime Minister. The direct budgetary costs of these laws to the British taxpayer is over €3 billion (£2.4 billion) a year. (See the full Vote Leave research here.)

Without treaty change, the EU can carry on breaking its promises to non-Eurozone countries – as the PM and Chancellor know. Speaking in Berlin last week, George Osborne highlighted the way the EU has recently gone back on promises not to require countries like the UK to bail out countries in the euro. Osborne showed how frustrated he was about this, saying:

‘We must never let taxpayers in countries that are not in the euro bear the cost for supporting countries in the eurozone. This is exactly what was attempted in July, when, out of the blue, in flagrant breach of the agreement we’d all signed up to, and without even the courtesy of a telephone call, we were informed we could have to pay to bail out Greece. That would have been grossly unfair … we shouldn’t have to fight a running battle on these issues’ (George Osborne, speech to the BDI, Berlin, 3 November 2015).

In March 2011, the UK was made a promise that the European Financial Stability Mechanism (EFSM) ‘should not be used’ for bailing out Eurozone states. The Prime Minister assured the House of Commons that Britain would be exempt from bailouts, and has repeatedly used the deal as proof that he can renegotiate Britain’s membership with the EU. Indeed, the 2015 Conservative manifesto boasted: ‘We took Britain out of Eurozone bailouts, including for Greece – the first ever return of powers from Brussels.’ Yet in July this year, the EU broke its promise and agreed to use the EFSM to grant €7.2 billion in bridging finance to Greece. Article 122(2) of the Treaty of Rome still allows the Council of Ministers (where the Eurozone has a permanent majority) to grant loans secured on the whole EU budget to insolvent Eurozone states. Without Treaty change, this could happen again.

2. ‘write competitiveness into the DNA of the whole European Union’

Nearly 1,000 more regulations over the past year alone. The Prime Minister claimed that more regulations will be repealed this year than during the whole of the previous Commission. In fact, the size of the EU’s acquis is growing. According to the EU’s Eur-Lex database, the number of EU legislative acts in force has grown by almost 1,000 over the past year – from 22,139 acts on 1 October 2014 to 23,072 on 9 November 2015.

3. ‘exempt Britain from an “ever closer union” and bolster national parliaments’

The only way to stop ever-closer union is to end the supremacy of EU over British law. The phrase ‘ever closer union’ was only inserted in the Maastricht Treaty at the UK’s request as part of the Major Government’s claims that it had put the brakes on federalism. Changing it would not alter how the ECJ interprets and creates EU law. The ECJ invented the concept of the supremacy of EU law – it was not in the original Treaties. The only way to end this is to Vote Leave.

Bolstering national parliaments will require treaty change – and the present ‘yellow card’ scheme is being ignored. The role of national parliaments in the EU is currently governed by the EU treaties. National parliaments have the right to be sent European Commission proposals and draft legislative acts from the EU institutions. In an eight-week period following the proposal of a draft legislative act, national parliaments may send the EU institutions a reasoned opinion stating that the proposal does not comply with the principles of subsidiarity and proportionality. If a third of national parliaments forward such an opinion, the proposal must be reviewed, but it may nevertheless be adopted. This so-called ‘yellow card’ procedure has been invoked twice. On one occasion, the Commission withdrew the proposal, on another, it decided to maintain it. The Luxembourg Court has never struck down an EU measure for breach of the principle of subsidiarity, usually requiring the European Parliament and Council of Ministers merely to produce a form of words stating they have thought about the principle. Any proposals for the ‘yellow card’ procedure to be replaced by a ‘red card’ procedure, under which national parliaments could actually block a legislative proposal, would require full treaty change following an inter-governmental conference. This would require unanimous agreement by the heads of government, and ratification by every member state in accordance with its constitutional requirements.

4. ‘tackle abuses of the right to free movement, and enable us to control migration from the European Union, in line with our manifesto’

David Cameron is no longer talking about restricting free movement to people with a firm job offer. In November 2014, the Prime Minister claimed that ‘we want EU jobseekers to have a job offer before they come here’ (BBC News, 28 November 2014, link).

The Prime Minister’s claims about what he has achieved are contradicted by the ECJ. The Prime Minister claimed in his speech that ‘if those coming from the EU haven’t found work within six months, they can be required to leave’. Yet as the ECJ ruled in September 2015, ‘Union citizens who have entered the territory of the host Member State in order to seek employment may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.’

The Cabinet Secretary has warned the Prime Minister that it can’t get what it wants on welfare. Sir Jeremy Heywood has reportedly told the Prime Minister that his proposal to ban EU migrants from claiming tax credits in the UK for four years will be deemed illegal under EU law (BBC News, 4 November 2015, link).

On the need for treaty change

The Prime Minister said today: ‘I want to be very clear: if we are able to reach agreement, it must be on a basis that is legally-binding and irreversible and where necessary has force in the Treaties’ (David Cameron, speech at Chatham House, 10 November 2015).

Any deal the Government negotiates will be meaningless without treaty change before the referendum. Any deal which is dependent on a treaty change that hasn’t happened by the time of the referendum is liable to be unpicked or struck down by the EU’s courts after we vote on it. The European Court of Justice has previously ruled that a political declaration of the European Council which limits rights under EU law ‘has no legal significance’ unless and until it is incorporated into EU law. Any treaty changes that the UK might be promised ahead of a referendum could be vetoed after the vote by any one of the 27 other EU member states, several of which may have to hold referendums under their own constitutions. A treaty that has not been ratified before the referendum will have the same legal status as an unsigned contract.

But the Government knows it cannot secure that before the referendum. Interviewed last week after his speech in Berlin, George Osborne admitted: ‘Well I do think the changes we are seeking will require treaty change, how that is delivered and when that is delivered is of course subject to the negotiation’ (BBC News, 3 November 2015, link).

On the Charter of Fundamental Rights

David Cameron has watered down his commitment to a ‘complete opt-out’ from the Charter, which is not even mentioned in his letter today. In 2009, Mr Cameron called for ‘a complete opt-out from the Charter of Fundamental Rights’ – now all he is proposing is a fudge. He said today: ‘we will enshrine in our domestic law that the EU Charter of Fundamental Rights does not create any new rights. We will make it explicit to our courts that they cannot use the EU Charter as the basis for any new legal challenge citing spurious new human rights grounds … We need to examine the way that Germany and other EU nations uphold their constitution and sovereignty … [and] consider how this could be done in the UK’. This simply repeats the text of Protocol (No 30) to the Lisbon Treaty, which the Blair Government negotiated, and which the ECJ has since ignored.

The Charter gives EU judges the power to decide issues like prisoner voting. In 2009, the then Labour Government claimed ‘it is absolutely clear that we have an opt-out from … the charter’, having previously said it would be no more binding than ‘the Beano or The Sun’. This was quickly shown to be incorrect. The European Court of Justice made clear in 2011 that the UK did not have an opt-out, and the UK Supreme Court ruled that the Charter has ‘direct effect’ in national law. The ECJ is using the Charter to do whatever it likes, recently holding that it should decide whether or not prisoners should have the vote.

David Cameron’s fudge. The only way that British legislation could stop the Charter having legal effect in UK courts is for primary legislation to state explicitly that it takes effect ‘notwithstanding the European Communities Act 1972’. This would provoke considerable conflict with the EU given the ECJ’s longstanding doctrine of the supremacy of EU law. If the UK were to pass primary legislation stating that it takes effect contrary to EU law and re-asserting the historic supremacy of British law, the ECJ would undoubtedly find that it is contrary to EU law. This would leave the UK’s membership in a legal twilight zone and expose the UK to fines in the ECJ. It is therefore unlikely that this is the course of action David Cameron envisages. The most likely scenario is that as part of the theatre around the renegotiation, in which all 28 members sign a document promising a new UK deal in the next EU Treaty, some words are inserted promising to change the status of the Charter in the next Treaty. Such words should be taken as seriously as Tony Blair’s promise that the Charter would have ‘no more legal effect than The Beano’. It must also be remembered that nothing in David Cameron’s proposed changes to the Human Rights Act will end the supremacy of the European Court of Human Rights in Strasbourg which will also remain in charge of human rights law in the UK.

On the Prime Minister’s letter to Donald Tusk

When Denmark was negotiating with the EU, they set out their position in a 250-page White Paper – all David Cameron has managed is this 6-page letter. It is now more than six months since the general election, and all David Cameron has published setting out his negotiating objectives is one letter. In contrast, after Danish voters narrowly rejected the Maastricht Treaty in a referendum on 2 June 1992, the Danish Government began to negotiate guarantees from the EU. By 9 October – just four months later – they had produced a 251-page white paper, ‘Denmark in Europe’. It was discussed at the meeting of the European Council in Edinburgh on 11–12 December 1992.

David Cameron didn’t even want to send this letter. He was forced into doing so after EU leaders complained that the renegotiation could not happen without the Prime Minister setting out his demands in writing. Senior figures across Europe have been frustrated by the slow pace of his negotiations – with exasperation coming to a head at the European Council meeting in October:

Martin Schulz, the President of the European Parliament, complained: ‘The UK government raised the problem of the referendum … It is up to the Cameron government to make proposals. It is not up to us’ (quoted in The Guardian, 15 October 2015, link).

Jean-Claude Juncker, the President of the European Commission, said no real progress had been made by mid-October: ‘I can’t say that huge progress has been achieved. I can’t say that nothing has been achieved. But to tango it takes two,’ said on 14 October: ‘And so we have to dance and our British friends have to dance’ (quoted by Reuters, 16 October 2015, link).

Angela Merkel, the German Chancellor, told the Bundestag the following day that it was up to the UK to ‘clarify the substance of what it is envisaging’ (quoted in The Independent, 16 October 2015, link).

Charles Michel, Prime Minister of Belgium, said: ‘It is time for Mr Cameron to put his cards on the table’ (Press Association, 16 October 2015, link)

The Government didn’t want you to see this letter. At the Downing Street press briefing where it was first announced that the Prime Minister would be sending this letter to President Tusk, it was made clear that the letter would remain confidential, not made available to Parliament and the public. It was only after Sir Bill Cash – Chairman of the European Scrutiny Committee – objected, that Number 10 confirmed that the letter would be made public (Bill Cash’s blog, 19 October 2015, link).

On the negotiations

The Government’s negotiation is not being taken seriously in the EU. George Osborne was in Berlin last week outlining the UK’s proposals – but a German government source revealed that they were not taking him seriously, saying: ‘Osborne must have his crusade … We are happy to play along’ (BBC News, 2 November 2015, link).

Even the BSE campaign were unimpressed with David Cameron’s speech

Caroline Lucas, the Green Party MP and a member of the Britain Stronger in Europe (BSE) board, put out a statement saying Cameron’s speech was ‘deeply depressing’. She said:

“Cameron’s vision for an EU based on little more than an increasingly deregulated free market is deeply depressing.

The EU has given us so much – free movement and the right to make a living across a continent, protections at work and key environmental laws – yet the prime minister wants to reduce our relationships with neighbouring countries to little more than business transactions. That’s not a vision I share.

Britain must remain a part of the EU because we’re better off when we work together on cross-border challenges we face: from climate change to bank regulation. The EU will only succeed if it’s much more than just a market.”