Today, eurosceptic minister Michael Gove gave an interview to the BBC in which he repeated Vote Leave’s opinion that Cameron’s new EU-UK deal was not legally binding. A similar claim was also made earlier this month in David Campbell Bannerman’s tirade of myth and negativity, where he suggested that the deal amounted to no more than “an IOU”.
Given that the president of the European Council, the attorney general, Britain’s foremost expert on EU law and indeed Cameron himself have all pointed out that the decision is binding and has legal status under international law, what grounds do eurosceptics have to challenge this?
Two possibilities have been raised. Neither holds much water.
The first suggestion is that the deal might be undone by the European Parliament. This is implausible. As it’s an intergovernmental agreement, the deal itself doesn’t need MEPs’ consent at all — it’s already been agreed by all 28 national leaders. Some parts of the deal do commit to changing elements of EU legislation, and of course changes to the law must be done via the usual democratic procedures, to be approved by both national ministers and elected MEPs. But, as I pointed out in an earlier blog post, it’s extremely unlikely that either would cause a problem.
And one of the European Parliament’s negotiators in the talks that drafted the deal (who also happens to be the chair of the economic affairs committee) was crystal clear on this point:
If the British citizens will decide to stay, when we will examine the Commission proposal we will respect the agreement and we will not prevent nor delay its implementation. Of course, legally speaking, the European Parliament can only formally work in the appropriate procedure on the basis of the Commission proposal. But, politically speaking, this debate clearly shows that the settlement commands a broad majority in this house. So we will be fair, we will keep our word: now it is up to the British citizens to safeguard their prosperity and their future.
So let’s turn to the second suggestion: that the deal might face not political but judicial challenge. The claim here is that someone might challenge the deal in the European court on the basis that it was supposedly incompatible with the treaties that have already been agreed by all 28 countries, including Britain.
But Cameron’s new deal was specifically drafted — with legal experts — to make it explicitly compatible with those treaties. It doesn’t change them; it supplements and interprets them. So on the face of it there ought to be no possibility of the two being found incompatible.
In any case, the court is obliged to take into account the intentions of the authors of those treaties when it adjudicates – and of course the authors of the treaties are the same countries whose leaders agreed to Cameron’s deal. And in the unlikely event that the Court were ever to find a contradiction between the deal and the treaties, it would try to reconcile the two, since they both have legal status.
Finally, there is an obvious safeguard. In the event that any aspect of the deal was challenged by the Court, the member states themselves could amend the treaty as necessary to fix things — since they were the ones who agreed to the deal in the first place. At worst this would delay the process, but it would not derail it.
So claims that Cameron’s deal might unravel should be seen for what they are: an attempt to conjure up complaints about an agreement that is, to all intents and purposes, watertight.
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