2016 – 012 Legal view of Cameron’s ‘Deal’ By Michael Shrimpton Barrister

From: Michael Shrimpton <michael@mshrimpton.co.uk>
Date: Sat, 20 Feb 2016 13:35:30 +0000

OKTC

Having studied the full text of the final agreement as released by Reuters five hours ago it is clear that the UK Government is seriously misrepresenting this agreement.

It is not a binding international treaty and contains no provision for notification to the UN or deposition of instruments of ratification.  It takes the form of the fraudulent Danish agreement of 1992 at Edinburgh, i.e. a decision of the Heads of State and Government meeting “within” the European Council, not as the European Council.

It is not therefore a decision of an EU institution and it has no status under EU law.

Even if it were a treaty it would not be binding until ratified.  No EU Member State is proposing to ratify before the referendum on 23rd June.

The provisions on “ever-closer union” do not and could not bind the ECJ,as they do not amend the Treaty on European Union (TEU).  

The commitment to treaty change is legally meaningless, as none of the Heads of State or Government could have bound their respective states, which would have to ratify in accordance with their internal constitutional requirements.  The European Parliament is not a party to the agreement and had not even debated it.  It is not even arguably bound and therefore would be free to reject the proposed treaty change.

I respectfully agree with President Hollande’s reported comment that the agreement is not binding.  Since it isn’t binding we need not get to the issue of reversibility.  

There in no agreement to limit in-work benefits for new arrivals from the EU until 2023 for a period of up to four years per worker, with a taper.  All that has been agreed is that the European Council will consider an amendment to the relevant EU Regulation.  Without that amendment the Regulation would continue to have automatic effect in the UK.  Any EU migrant affected could take the UK to the ECJ, which could strike down the amendment for non-compliance with the TEU in any event.  Regulations are secondary instruments under EU law and must comply with the TEU.  

There is therefore no “emergency brake”, simply an indication to consider such a mechanism, the economic impact of which would be marginal anyway. 

EU economic migrants already here would not be affected.  The agreement, such as it is, applies to new arrivals from 24th June only, assuming a vote to remain.   

Parliament’s status is barely affected.  If the TEU is amended, working with a weighted majority of other national parliaments, Parliament will be able to force a rethink for new measures only.  

Put shortly, we are being sold a pup.