Commentators on the Prime Minister’s letter to the President of the Council (a copy can be found here) have focused principally on the “four key points” for renegotiation (see e.g. the BBC’s analysis). Less, if any, attention has been paid to the passage in the letter that gives a clear indication of the form which the Prime Minister intends the renegotiated agreement to take.
The relevant passage is on the first page of the letter:
“The European Union has a long history of respecting the differences of its many Member States and of working to overcome challenges in a way that works for the whole European Union. For example, with the protocols and other instruments agreed for Denmark and Ireland, the EU was able to arrive at a settlement, which worked for each country and did not disadvantage other Member States.”
The giveaway phrase is “protocols and other instruments agreed for Denmark and Ireland”. This is the template the UK is looking to in order to achieve what the Foreign Secretary had earlier called “bankable promises, commitments, that are legally binding” in an interview with BBC Radio. In the same interview the Foreign Secretary continued:
“We can have international agreements made between the member states which are registered as international agreements, legally binding, to be taken into account by courts in making decisions, that will then be incorporated into the treaties at the next opportunity, when the treaties are next open…”
What is now clear from the Prime Minister’s letter is that the “international agreements, legally binding” are going to be in the nature of the so-called “Edinburgh Decision”, agreed in December 1992 at the European Council meeting in Edinburgh following the failed referendum on the Maastricht Treaty in Denmark, and of the “Decision on the Concerns of the Irish People”, agreed in June 2009 at the European Council meeting in Brussels following the failed referendum on the Lisbon Treaty in Ireland.
This is also an acknowledgement by the Prime Minster that “Treaty change”, a phrase no longer uttered by the UK Government, is simply not achievable by way of the renegotiation process. It is certainly unachievable within the timeframe of the next two years. Even without the pressure of time, Treaty change would ultimately require changes to the constitutions, or require referendums, or both, in various other Member States; a prospect which is neither realistic nor, given past experience, likely to be achievable easily or at all. Instead, the UK Government will seek an agreement at the international law level, which can be put to the British people, with the prospect of a future Protocol or Protocols to the Treaty on European Union, but not an amendment of the substance of the EU Treaties.
The Edinburgh Decision granted Denmark four exceptions to the Maastricht Treaty, on European Monetary Union, the Common Security and Defence Policy, Justice and Home Affairs and the citizenship of the European Union, in order for the Danish Government to be able to put that Treaty to its people in a second referendum, its electorate having rejected the Maastricht Treaty the first time around. The beauty of the arrangement was that no Treaty change was required, so that Member States that had already ratified the Maastricht Treaty did not have to do so again. The Decision worked as an international law agreement between the Heads of Government, with the promise that the Danish opt-outs would be annexed as Protocols to the Treaty on the next occasion when the Treaty would be amended (as it happens, the provision on citizenship did eventually become a Treaty amendment and was incorporated by the Lisbon Treaty).
The 2009 Decision on the Concerns of the Irish People was inspired by the Edinburgh Decision and was another agreement required in order to put a new Treaty to a Member State’s electorate for a second time, it having failed at the first time of asking. That Decision was part of a bundle of “Irish Legal Guarantees” agreed by the Heads of Government at Brussels, all of which were described (by the Irish Government at least) as “legally binding”. But the Decision is the most relevant because it was explicitly described as legally binding by all parties. As such, it constituted an agreement that was binding on Member States under international law. The Decision is not part of EU law, but EU courts had to take it into account when interpreting EU law. Once again, it involved annexing Protocols at the next opportunity and avoided Treaty amendment and re-ratification of Lisbon by other Member States.
It is to be expected therefore that whatever renegotiation is achieved by the UK Government will be enshrined in a Decision of the Heads of Government, binding under international law, to be taken into account by the CJEU in future decisions and annexed as Protocols to the EU Treaty on the occasion of the next substantive amendment of the Treaties. How this will be described, for the purposes of the referendum, whether “Decision on the Concerns of the British People” or similar, is entirely a matter for the UK and other Governments, but while the title remains unknown the legal form seems clear.
Philip Moser QC
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London WC1R 5NR
Tel: 020 7405 7211