Here’s a link to the original documents comprising the UK/EU ‘settlement’ that are the basis for PM David Cameron now campaigning for a Yes vote.
So, question. Is the settlement ‘legally binding’? Yes! says Mr Cameron. No! says the Brexit tendency.
A highly simplified analysis of this question is given by the BBC:
The Vienna Convention on the Law of Treaties makes clear states can express their consent to an international agreement in a variety of ways, including signature, acceptance or approval.
If it walks, talks and smells like a treaty, then it is a treaty. What is important is the substance of the agreement and not the label “treaty”.
As Mr Gove acknowledges, this is a “deal between 28 nations all of whom believe it”. In other words, all of whom intend to be bound by it.
Note that the final sentence of that quote simply does not follow from the penultimate sentence. It’s possible to believe fervently in a deal that amounts to nothing much because it amounts to nothing much. And to believe in the immediate political logic of a deal while confidently expecting to find plausible reasons not to go through with it down the road. This is the EU we’re talking about!
A more sophisticated analysis comes from the Guardian:
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…
That Guardian piece links to an austere lawyerly analysis by Sir Alan Dashwood QC who argues for the package being ‘legally binding and irreversible’ when it is actually adopted (see below) It also links to more accessible but still substantive analysis by Professor Steve Peers, who gets off to a strong start by explaining what exactly the ‘settlement’ documents individually and severally represent:
The renegotiation deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); a Declaration by the European Council: and four declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government will also table some domestic legislation linked to the renegotiation deal, but since those proposals have not appeared yet I won’t comment on them for now.
If you can face it, gallop through Professor Peers’ detailed look at all this, including his conclusion:
It follows from the above that the renegotiation deal is binding – and anyone who says otherwise (without clarification) is just not telling the truth. But there are two significant caveats to that: (a) parts of the deal, concerning the details of the changes to free movement law and Treaty amendments, still have to be implemented separately; and (b) there are limits to the enforceability of the deal.
Ah. Enforceability. If X agrees with Y to sell Y a bag of hot air for £5, the contract is legally binding. But would any court enforce it? If a contract is unenforceable for one reason or another, what does it mean to say that it nonetheless is ‘legally binding’?
Let’s not spiral off into the darker corners of Jurisprudence, including my old student favourite The Hierarchy of Norms. Instead scroll down to the brisk exchange between Professor Peers and David Allen Green aka Jack of Kent:
JoK: What use is the word “binding” in this context? Nothing is being “bound” in any meaningful way: a new position can be asserted, and nobody is obliged to do anything. Binds are things that tie, not dangle. How does “binding in international law” differ from saying “exist” or “noted”? And if it does not differ, is “binding” a misleading term?
PP: You could say the same of any international treaty. Many have no sanctions mechanism, or there are ways in which States could ignore sanctions which do exist. Domestic laws are equally irrelevant if it becomes feasible in practice for enough people to flout them without punishment. This is really an international relations argument about the nature of international law (or a socio-legal argument about ‘law’ in general). So the subtler point is that by calling something ‘binding’ it is more likely that actors will comply with it than if it had a different title, because they will want others to take the same approach to the word ‘binding’ on a different occasion.
JoK: But how are they “bound” other than by self-restraint? Your last point suggests “politically binding” which of course would be a different from the “legally binding” phrase I am querying. I think for lawyers to assert something is “legally binding at international law” can be misleading. I realise that there is a distinction between “binding” and enforceability. But that distinction will not be known to most people following the debate.
PP: I think my point is that ‘legally binding’ in practice means ‘politically binding’ for any treaty. To single out this particular text to make that point is misleading in its own way. It isn’t *as* binding as the EU Treaties, which prevail in the event of a conflict; but the same will likely be true of any UK/EU post-Brexit treaty.
JoK: I hope I understand your point correctly (and I apologise if I do not) but surely if ‘legally binding’ in practice means ‘politically binding’ then one should simply say ‘politically binding’. If it is entirely a matter of self-restraint, I cannot see how “legally binding” is the correct term at all. Anyway, I think I have said all I can say, and I would like to thank you for your responses.
Back in Real Life, we all need to focus on distinguishing what’s important from what matters in all this. The waffling in the ‘settlement’ about stepping up EU competitiveness is a priori worthless. The complex provisions on tweaking benefits for EU migrants are so footling and demeaning that it would have been better to drop them.
But there are two big-looking things in the broad area of ‘sovereignty’ that are interesting: the purported moves under ‘Economic Governance’ to insulate the UK from harmful consequences of Eurozone decisions; and the claim that the UK is no longer to be committed to ‘ever closer union’.
The European Council Decision (sic) highlights in this area:
Heads of State or Government have declared that:
(i) this Decision gives legal guarantee that the matters of concern to the United Kingdom as expressed in the letter of 10 November 2015 have been addressed;
(ii) the content of the Decision is fully compatible with the Treaties;
(iii) this Decision is legally binding, and may be amended or repealed only by common accord of the Heads of State or Government of the Member States of the European Union;
(iv) this Decision will take effect on the date the Government of the United Kingdom informs the Secretary-General of the Council that the United Kingdom has decided to remain a member of the European Union.
It is understood that, should the result of the referendum in the United Kingdom be for it to leave the European Union, the set of arrangements referred to in paragraph 2 above will cease to exist.
Well, they say that it’s all legally binding so it must be, right?
NB that the package comes into effect ONLY IF AND WHEN the UK formally notifies the EU that it’s staying in. If the UK votes to leave in the June referendum, the whole package vanishes like a puff of smoke!
Continuing. What follows ‘has’ to be ‘taken into consideration’ when interpreting the Treaties.
In order to fulfil the Treaties’ objective to establish an economic and monetary union whose currency is the euro, further deepening is needed … it is acknowledged that Member States not participating in the further deepening of the economic and monetary union will not create obstacles to but facilitate such further deepening while this process will, conversely, respect the rights and competences of the non-participating Member States
Lots more EU needed except where it’s not. Everyone be nice.
Discrimination between natural or legal persons based on the official currency of the Member State, or, as the case may be, the currency that has legal tender in the Member State, where they are established is prohibited. Any difference of treatment must be based on objective reasons.
So ‘discrimination’ is bad unless done for ‘objective reasons’, when it’s OK.
Emergency and crisis measures designed to safeguard the financial stability of the euro area will not entail budgetary responsibility for Member States whose currency is not the euro, or, as the case may be, for those not participating in the banking union.
The UK does not have to pay to bail out the Eurozone. Hurrah!
This is without prejudice to the development of the single rulebook and to Union mechanisms of macro-prudential oversight for the prevention and mitigation of systemic financial risks in the Union and to the existing powers of the Union to take action that is necessary to respond to threats to financial stability.
Of course, the Union reserves the power under the existing treaties to do whatever it takes to defend Eurozone ‘financial stability’. If that hits the UK badly at a time of high crisis, too bad.
The substance of this Section will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States.
This is the key ‘legally binding’ point. See Conclusion below.
Note too that buried in the small print elsewhere is this:
Any such referral is without prejudice to the normal operation of the legislative procedure of the Union and cannot result in a situation which would amount to allowing a Member State a veto.
So even if the UK feels gravely threatened by Eurozone moves, it can’t stop them.
It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union. The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom.
The references in the Treaties and their preambles to the process of creating an ever closer union among the peoples of Europe do not offer a legal basis for extending the scope of any provision of the Treaties or of EU secondary legislation. They should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties.
That looks clear enough. It purports to send a clear signal to the ECJ that when in doubt the idea of ‘ever closer union’ should not enter its deliberations or implicit thinking.
The references to an ever closer union among the peoples are therefore compatible with different paths of integration being available for different Member States and do not compel all Member States to aim for a common destination.
Yup. Looks clear.
Where reasoned opinions on the non-compliance of a draft Union legislative act with the principle of subsidiarity, sent within 12 weeks from the transmission of that draft, represent more than 55 % of the votes allocated to the national Parliaments, the Council Presidency will include the item on the agenda of the Council for a comprehensive discussion on these opinions and on the consequences to be drawn therefrom.
Following such discussion, and while respecting the procedural requirements of the Treaties, the representatives of the Member States acting in their capacity as members of the Council will discontinue the consideration of the draft legislative act in question unless the draft is amended to accommodate the concerns expressed in the reasoned opinions.
This establishes a notable new ‘democratic’ principle of sorts. That in some areas affecting ‘subsidiarity’ (ie ‘taking decisions as close as possible to the citizen’) national parliaments can intervene to raise concerns that may or may not be acted on in one way or the other. In practice this cumbersome new procedure is unlikely to be triggered or to make a scrap of difference, which is no doubt why it was accepted. It is of course far far short of allowing the UK or any other parliament to block EU-level decisions.
When you strip it all down, the UK/EU ‘settlement’ is a promise by EU member states to amend the Treaties in this sense as and when they next amend the Treaties, albeit a promise that may carry specific legal weight in some circumstances. But NB in key respects the EU solemnly promises only to keep its options open under the existing Treaty framework.
Specific legal issues arising on issues that find their way into the national courts and/or the ECJ may or may not be settled by taking into account this package. No-one can really be sure how far if at all any court can or should feel bound by these promises, even if they have been made at the top EU political level.
The hard fact remains that EU leaders could have decided to change the treaties to give effect to these new arrangements. They did not do so, fearful as they were of ‘reform contagion’. If it transpires that a court has to choose between the letter of an existing EU treaty and the obvious intention behind top-level promises, why should that court not choose the former even if that outcome badly damages UK interests?
Above all, there are NO legal remedies open to the UK if one or more EU member states refuses to implement part of the package or blocks it when the next Treaty renegotiation comes round.
The package is not even ‘politically binding’ in any useful sense either. What does the UK do when amidst the acrimonious next Treaty revision one or more member states objects to part of the settlement, citing its own national sovereignty concerns? Or what if all member states agree to these changes, but the Treaty revisions fail because of a referendum or some other procedural wrangling in one or more member states?
Answer: there is nothing whatever the UK can do, other than wail in the wilderness that solemn promises are not being kept. Note that the UK can not complain about that, or run squealing to the ECJ. We reserve the right to veto EU decisions in our own sovereign interests. So do others…
Not valueless. Not irrelevant. Not without some important legal significance in certain circumstances. But in many key respects effectively unenforceable.
And so I’m with Jack of Kent. Proclaiming noisily that this at best modest and ambiguous so-called settlement is ‘legally binding’ (and so well worth supporting by the UK) froths it all up in an obviously tendentious way?