“The European Union prevents us from being a proper self-governing country”
The above is one of the take home statements from this BBC interview with Justice Secretary, Michael Gove. And, in a massive departure from the norm, the Tory minister is absolutely 100 percent correct.
Bringing us back down to earth with a clattering bang, however, is the Prime Minister, who insists that the deal he and the other 27 Heads of State and Government agreed is both “legally binding” and “irreversible”. Mr Gove disputes this saying, “The facts are that the European Court of Justice is not bound by this agreement until treaties are changed and we don’t know when that will be”.
Meanwhile, European Council President, Donald Tusk affirms that the agreement is “in conformity with the treaties and cannot be annulled by the European Court of Justice”. To which he adds, “But it will only enter into force if the British people vote to stay. If they vote to leave, the settlement will cease to exist.”
I think that it is worth picking through this very slowly. The precise use of language by Donald Tusk, in particular, is interesting.
First of all, Mr Tusk says, that the deal is “in conformity with the treaties”, which prompts the immediate question, what then has Mr Cameron really achieved? A deal that does not require treaty change cannot be regarded as presaging a “reformed EU”. If the treaties are not changed then the relationship between Britain and the EU has not altered one iota.
Mr Tusk also notes that the deal will only enter into force if “the British people vote to stay”, thereby implying that what Mr Cameron has agreed with the other Heads of State and Government is little more than a promissory note. The “reforms”, meagre as they are, will not come into force until after the referendum vote, so when the British people go to the polls we will be voting on the basis of a political promise.
The promise of a “special status” for Britain, outside of “ever closer union”, the euro, Schengen, and various areas of justice and home affairs policy, has no legal force until the next EU treaty is signed—and, of course, while Britain remains in the EU, there is little that the British people can do to prevent a future government taking Britain further in or needlessly surrendering further powers to EU institutions.
It is the EU treaties that bind the European Court of Justice and the other EU institutions, not political promises agreed by Heads of State and Government.
To that end, it is not possible to agree the outcome of a future treaty negotiation prior to the treaty negotiation. At the risk of testing everybody’s patience, a negotiation that is agreed prior to the negotiating process is not a negotiation—and we have no need of legal scholars to inform us of that. So much is self-evident.
David Cameron’s EU deal is not legally enforceable within the EU treaty framework because it is not an EU treaty. Indeed, there are serious questions to be answered regarding whether the document lodged with the UN constitutes a treaty of any kind. When and by what means will Mr Cameron’s deal be ratified by the 28 EU Member States?
One is reminded of George Orwell’s dictum that: “There are some ideas so absurd that only an intellectual could believe them.”