The EU is in dire need of far-reaching reform to make it fit for the 21st century. The Prime Minister is leading the charge in Europe to make it more competitive, flexible, and democratic, and is right to view 2017 – between the French and German national elections as the key time to strike a deal, and then to put that deal to the British people in a referendum.
The most desirable way to achieve fundamental reform is to change the EU treaties, and a grand bargain” could well be struck to secure the rights of the non-euro states in return for the changes needed to firm-up the euro.
Nevertheless, rightly or wrongly, leaders across the continent fear opening a Pandora’s Box of treaty changes, and then having to ask their people for assent in the referendum that could follow. As Philip Hammond has pointed out, voters in referendum tend to answer the question that they want to address – such as: do you support the current government? – rather than the question on the ballot paper. (The Scottish referendum was perhaps the exception that proves the rule!)
So to achieve significant reform of the EU, we will need to be creative, and come up with ways to achieve permanent reforms without changing the treaties in many areas. Thankfully, there are a number of effective ways to achieve our goals without full treaty revision.
The Fresh Start Project of Conservative MPs, Peers, and MEPs yesterday published a joint report with the think tank Open Europe which outlines a number of ways to achieve significant reforms, both through treaty change, and without changing the treaties.
Of 13 significant reforms proposed by the Fresh Start Project in our Manifesto for Change, only four of them (ending ever-closer union, on policing and criminal justice, the Charter of Fundamental Rights, and the Strasbourg circus) could only be achieved by treaty change. Other reforms, including rewriting the EU rules on migrants’ access to welfare, increasing national parliaments’ say over decision making, and boosting EU trade, could be achieved through other means.
There is a natural tension and trade-off between the permanence of treaty change on one hand, and the relative ease of achieving change through the current structures on the other. Some in our party and country will not be satisfied by new rules which are not embedded in the treaties – and we should strive for the permanence and clarity of treaty change where possible.
But in my view, it is much better to achieve meaningful and lasting reform through a range of measures than to achieve little or nothing by demanding only treaty change.
Substantive reform can be achieved through qualified majority voting (QMV) among national governments and co-decision with the European Parliament, through unanimity among member states with the European Parliament’s consent, through “inter-institutional agreements”, through a “promissory note” along the lines of that agreed with Ireland following the rejection of the Lisbon Treaty or with Denmark in the Edinburgh agreement, or through the EU treaties’ “flexibility clause”.
One thing is clear where the EU is concerned: if the political will is there, there is always a means to make the change happen.
So, again, the four areas outlined by the Fresh Start Project that would need treaty change are:
End the European Parliament’s ‘travelling circus’: Though not hugely costly in relative terms, the waste of sending MEPs from Brussels to Strasbourg each month is a hugely totemic issue and could only be solved by amending the EU Treaty Protocol on the Location of the Seats of the Institutions.
Human rights: a secure opt-out from the Charter of Fundamental Rights: Treaty change – to opt-out from the Charter of Fundamental Rights would need to be accompanied by an opt-out from the ‘fundamental rights general principles’.
Policing and criminal justice law: Return to intergovernmental cooperation. Following the decision to opt back in to 35 measures following the block opt-out of PCJ measures, treaty change would now be needed to remove the UK from ECJ jurisdiction. This would need to be accompanied by a negotiated agreement to ensure continued operational cooperation.
End ‘ever closer union’: While a political declaration to clarify that ‘ever closer union’ does not apply equally to all member states (such as agreed at the June 2014 European Council conclusions) is a step in the right direction, the only secure way to end the idea of ‘ever closer union’ applying to the UK is to amend the preamble to the treaties.
The other areas for reform outlined by the Fresh Start Project could be achieved by methods other than treaty change:
Give national parliaments greater powers to enforce subsidiarity: An inter-institutional agreement between member states and the EU institutions, principally the Commission could turn the yellow-card into a de-facto red card overnight.
Legal safeguards for the single market and Eurozone ‘outs’: Using Article 352 (the flexibility clause) to reiterate the single market obligations of all member states to avoid discrimination could help to secure the rights of the Eurozone ‘outs’. This could be combined with expand the use of double majority voting into ESMA and EIOPA by amending the regulations establishing these organisations. Ultimately however, the treaties may need to be amended to expand the use of double-majority voting into other areas, or to give member states and emergency brake.
Liberalise cross-border EU trade, especially in services and digital: Fully implementing the existing EU Services Directive, and then introducing the ‘country of origin’ principle, by enhanced cooperation if necessary could all be achieved within the current treaties. This, combined with the development of a digital single market could be important measures to boost EU-wide growth, and have the support of many member states and the commission.
Ensure better regulation: Brussels-speak for less regulation. This could be achieved by an inter-institutional agreement or case-by-case amendments to individual EU laws. The appointment of former Dutch foreign minister Frans Timmermans as Commission vice-President responsible for better regulation is a strong statement of intent by the new Commission.
External free trade: focus on concluding agreements—The new Commission must be hugely focussed and ambitious on concluding free-trade agreements, particularly TTIP, and the Commission should increase resources in the area of trade policy.
Free movement of persons: Regaining national control over access to welfare benefits. There is some debate over whether the proposals outlined by the Prime Minister recently would need treaty change: government lawyers are advising that they do. But amendments to the EU’s Free Movement Directive, the Regulation on the Free Movement of Workers, the Directive on Enforcement of Free Movement Rights and the Social Security Coordination Regulation could go a long way to limiting EU migrants’ access to benefits, social housing and publicly funded apprenticeships until they had lawfully resided in their new country for, say, four years. Amendments to treaty provisions on non-discrimination and citizenship (Articles 18 & 20-21 TFEU) and the provisions on workers and social security (Articles 45,46 & 48 TFEU) may be needed to go further.
Reforming the EU budget, including reforms to the Common Agricultural Policy (CAP) and Regional Policy: Amending secondary EU legislation relating to CAP and Structural and Cohesion Funds would, in practice, also need the approval of all Member States in the EU budget.
Social and employment law: deregulation and greater national flexibility—Only treaty change to Articles 151-161 TFEU could return the competence over Social and Employment Law to member states, but absent treaty change meaningful reform could be achieved to Directives on a case-by-case basis, an Inter-institutional agreement could help to mitigate the influence of ECJ judgements, and a regulation could be agreed to exempt certain sectors (eg healthcare) from EU Social and Employment legislation.
Energy: greater national choice of energy mix—the absence of binding targets for renewables was agreed at October European Council and will give member states more control over the choice of energy mix.