Just before the election, the prime minister promised the House of Commons that he would "reform the EU and fundamentally change our relationship with it." The draft agreement published yesterday is a million miles from his promise. It reasserts the primacy of the EU, proposes only minor changes to what the UK is allowed to do to stop EU migrants claiming benefits, and sets out the same old failed aspirations on the future competitiveness of Europe.
As the EU economy declines, there have been endless invocations to "enhance competitiveness" and "simplify legislation", but nothing ever changes. EU unemployment is very high, particularly in the southern states, 24.5% in Greece and 20.8% in Spain at the end of last year. The EU's share of world trade is declining, because of the burden of bureaucratic laws on businesses and high social costs. Steering the EU towards a competitive future should not be a concession, it should be embedded in its culture. But we all know it isn't.
The Prime Minister's attempts to limit migration by reducing access to in-work benefits are also bound to fail, even if he gets all that he is asking for. The emphasis on benefits sounds good but it will make no difference to the flow of EU migrants. Sir Stephen Nickell CBE of the Office of Budget Responsibility has said that changes to welfare would have 'not much' impact on migration. The abuses of free movement Mr Tusk describes do not represent a significant number of individuals, such as to make a real difference to our net migration figure. It's our high wage economy which attracts EU migrants, and the introduction of the 'living wage' will be a far more significant 'pull factor' than benefits. This does not allow the UK to take back control over our own immigration policy.
The draft agreement is clear that the Lisbon Treaty, which the Conservatives opposed, will remain in force. Tusk writes: "The competences conferred by the Member States on the Union can be modified, whether to increase or reduce them, only through a revision of the Treaties with the agreement of all Member States." The primacy of the Treaties is reaffirmed.
In January 2014, the Prime Minister spoke of "treaty change that I'll be putting in place before the referendum". It is now clear there will be no Treaty change before the referendum. Any promise on this are like saying "the cheque's in the post"? The former Director General of the Legal Service of the Council of Ministers, Jean-Claude Piris, has said a legally binding commitment to change the Treaties at a later date is "called bull****." He said, "There is no possibility to make a promise that would be legally binding to change the treaty later' (Daily Telegraph, 26 September 2015).
Moreover, there is nothing in the proposals that limits the role of the European Court of Justice. Anything in this agreement can be over-ruled by the ECJ at a later date. Even if the member states and the Commission come to an agreement on the UK's handling of benefits, any individual can go to the ECJ and claim that their personal rights have been violated, and the court is free to rule how it likes.
In fact, nothing in this "Decision by the Heads of State or Government" is legally binding and irreversible, as claimed by the Prime Minister. It is not EU law. The prime minister says it will be filed with the UN so it is recognised as an international agreement. In the House of Commons this afternoon, I asked him if he could cite any case in which the ECJ has overruled the EU treaties in favour of an international agreement. He could not, and answered by citing the agreement made with Denmark before ratification of the Maastricht Treaty. This does constitute the precedent which the government pretends it is.
The biggest strategic challenge in reforming our relationship with our EU partners arises from the formation of the Euro. The 19 Eurozone states are an overwhelming majority out of 28, bolstered by the fact that the UK is only one of two states which now will never join the Euro. It is laughable that part of this draft agreement suggests we need to ask for the EU to recognise that the EU has more than one currency. (Sweden voted to stay out of the Euro, and they did not even have the legal right to opt-out; they just opted out anyway.) In defiance of this, the EU Commission President Jean-Claude Juncker still told the European Parliament today, "The euro remains the currency of the European Union, the parliament remains the parliament of the union as a whole".
The draft agreement supposedly aims to protect the UK from any detrimental effects of further Eurozone integration. We know there is going to be a big new EU treaty to try to save the Euro in 2020, and we have no idea how it will affect us. But this draft agreement asks as to sign a blank cheque in favour of what the Eurozone states feel they should have. It says, "Member States whose currency is not the Euro shall not impede the implementation of legal acts directly linked to the functioning of the Euro area and shall refrain from measures which could jeopardise the attainment of the objectives of the economic and monetary union."
Then there is the reference to "sovereignty", but without defining what this means. Democracy usually involves the right to make your own laws, but the EU intends anything but that. The much-trailed "red card" for national parliaments will not allow the UK Parliament to make the law of the UK. It requires 55% of member state's parliaments to agree together in order to block legislation a new EU law. This is not "sovereignty". It is no more than a new and extremely unwieldy form of EU majority voting. Nor does it create any way of tackling any existing EU law.
This agreement is couched in the language of a Euro-federalism, referring to the "European project" and a "common future". This language is disconnected this language from the realities of the Europe today and from how the majority of British people regard the European Union?
None of the promised changes put forward by the Prime Minister in either his much-vaunted Bloomberg speech, or in the 2015 and 2010 General Election manifestos, are going to be fulfilled. The letter confirms what we had all expected. The renegotiation reminds me of Macbeth's closing lines: this agreement is "full of sound and fury signifying nothing."
Bernard Jenkin is the Conservative MP for Harwich and North Essex
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