Cameron’s migrant block: hearts & minds in reverse?
Jonathan Lindsell, 25 November 2013
Romanian and Bulgarian migrants might face continued restrictions to rights and benefits in the UK after 1 January 2014, according to sources near David Cameron. He wants to double (or possible quadruple) the time-period migrants have to live in Britain before they can receive benefits, from three months to six (or a year). Details are yet to solidify.
As I discussed last week, EU law means Britain must let all EU migrants in, and it is important the government decides what to do once they’re here. However, recent revelations suggest government migration policy is already quietly ‘open door’, so January’s influx will only be affected by an atmosphere of resentment or welcome, not actual law. Recent moves such as Border Agency arrests at London underground stops and the infamous ‘GO HOME’ van are already contributing to this, dubbed Theresa May’s ‘hostile environment’.
Conservative plans to limit access to welfare payments could be thwarted by the Liberal Democrat element of the Coalition, which is pro-EU and pro-migration. On the basis of conforming to EU law, Nick Clegg would even allow anomalous payments, such as child benefit and child tax credit being paid to migrant parents whose children remain in their country of origin.
In EU law, one of the important ‘pillars’ is the ‘free movement of labour’, which specifies that a member state cannot treat EU citizens any differently to its own. Any special rules for Bulgarians and Romanians would trigger action from the Commission and the European Court of Justice, who could levy heavy fines. Committed anti-EU Tories don’t see this as a problem – Peter Bone, whose forlorn Labour Restriction Bill has failed, argues EU law should simply be ignored as there is no enforcement mechanism to make the UK pay whatever fine is imposed. He might have a point – Britain is already in court over the ‘right to reside’ test.
Specifics on Cameron’s actual intent are as yet shrouded, so my hunch is that, without meaning to really do anything, he is playing to two galleries: voters and prospective migrants. An e-petition on the issue reached the requisite 150,000 signatures in early November, but won’t be debated until April – No.10 must show it can respond to voter concerns. At the same time, he’s sending a message that ‘shirker’ migrants are unwelcome.
The Telegraph’s interview with Bulgarian Ambassador Konstantin Dimitrov suggests no application for a work permit has been turned down since 2007, so beyond public perception there are effectively no restrictions on migration already. Cameron’s posturing might, then, dissuade NHS tourists and welfare migrants, but have little effect on the skilled young people coming here to work.
Spain, Germany and Denmark have all voiced similar concerns over Romanian and Bulgarian accession. With their agreement, Cameron might achieve symbolic welfare restrictions without facing a serious fine. This strategy would preserve Cameron’s political capital for his proposed grand renegotiation.
Britain could bring in stricter rules but they would have to apply to British nationals as well.
The answer is to unilaterally declare the Treaty of Rome invalid by Westminster repealing all legislation relating to the UK’s EU membership. Here are the details:
The EU: Making the going good for getting Out
May 27, 2013 – 5:24 pm
ROBERT HENDERSON suggests some ways in which the No side can maximize its chances of winning the referendum on EU membership
Amidst all the confusion and excitement of bringing about a referendum on Britain’s membership of the EU, it is easy to forget that there are considerable risks associated with the vote. The government will almost certainly campaign to stay in, as will the Labour Party, and many institutions, lobby groups, media groups, foreign governments, and influential individuals. Public opinion, although hardening towards leaving, is fickle and cannot be relied upon. A decision to stay in would probably destroy the UKIP, and would also seriously undermine Conservative Eurosceptics. It is therefore essential that we should think about the likely shape of the campaign, and how we who believe in leaving can improve the odds.
The general strategy
A) How to leave
Article 50 of the Lisbon Treaty states
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49. (http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-european-union-and-comments/title-6-final-provisions/137-article-50.html).
It is strongly implied in in para 3 of the Article that unilateral withdrawal is possible :
“ The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2”.
However, the clause does not explicitly give the right of unilateral secession and could be interpreted as merely referring to how any agreement might be scheduled to take effect. The other EU members could adopt this interpretation to thwart the UK leaving without declaring UDI.
The Vienna Convention on the Law of Treaties cites two legitimate instances where a party wants to withdraw unilaterally from a treaty which does not make any provision for withdrawal : (1) where all parties recognise an informal right to do so or (2) the situation has changed so substantially that the obligations of a signatory are radically different from that which was originally agreed to. The informal right patently does not apply in the case of the EU. As for radical changes to the obligations of a signatory, that would be difficult to sustain. It is true that the organisation (the EU) the UK belongs to now is radically different from that which they originally joined in 1973 (the EEC), but the UK has signed new treaties to agree to the new circumstances as they have arisen. Hence, there would be no radically changed obligations which had not been taken on formally by the UK.
The only precedent of any sort for withdrawal is Greenland’s secession in 1985 from the European Economic Community (EEC). The was facilitated by the Greenland Treaty. However, it is not an obviously relevant precedent because Greenlanders retain Danish citizenship for Greenland has home rule not full independence from Denmark. They are consequently full EU citizens. Because Greenland is also one of the Overseas Countries and Territories of the EU it is also subject to some EU law and regulations, mainly those relating to the Single Market. .
Even if it is accepted by the other EU members that there is a unilateral right of secession, the fact that it could only take place legally after two years would give the remainder of the EU the opportunity to run the UK ragged before the UK left.
As for getting an agreement which would allow the UK to generally re-establish its sovereignty, especially over the control of its borders, this is most improbable. A Qualified Majority in the European Council is required and even if such a majority is obtained the European Parliament can block the secession. The potential for delay and blackmail by the EU of the UK is considerable.
In any event it is likely is that the EU would drive a bargain which is greatly to the UK’s disadvantage because the Eurofederalists would be terrified of creating a precedent for any other EU member which might wish to radically change their relationship with the EU. That would make them demand conditions of the UK which were so unappealing it would deter other member states from following suit. There is also the danger that the Europhile UK political elite would take the opportunity to agree to disadvantageous terms for the UK simply to keep the UK attached to the EU in the manner that Norway and Switzerland are attached. The treaty arrangements of Norway and Switzerland are routinely portrayed by supposed Eurosceptics as purely trade relationships. They are not. Both countries are firmly within the EU straitjacket. Indeed, the Europhile BBC ran a story in 2012 entitled Non-EU Norway ‘almost as integrated in union as UK ‘ (http://www.bbc.co.uk/news/world-europe-16594370). As for Switzerland, a glance at their treaty arrangements will show their close EU embrace http://www.europa.admin.ch/themen/00500/index.html?lang=en. Most importantly they have no control of immigration from the EU . If the UK signed up to the Single Market after formally leaving the EU we should be in the same boat.
The OUT camp must make it clear that it would be both damaging and unnecessary for the UK to abide treaty requirement. Even if the UK did not try to sign up to the Single Market, it would allow the EU to inflict considerable damage on the UK both during the period prior to formally leaving and afterwards if the price of leaving with the EU’s agreement was for UK to sign up to various obligations – for example, to continue paying a large annual sum to the EU for ten years.
There is also the danger that the stay-in camp could use Article 50 to argue that whether the British people want to be in or out, the cost of leaving would be too heavy because of this treaty requirement.
The Gordian knot of Article 50 can be cut simply by passing an Act of Parliament repealing all the treaties that refer to the EU from the Treaty of Rome onwards. No major UK party could object to this because all three have, at one time or another, declared that Parliament remains supreme and can repudiate anything the EU does if it so chooses.
If the stay-in camp argue that would be illegal because of the treaty obligation, the OUT camp should simply emphasise (1) that international law is no law because there is no means of enforcing it within its jurisdiction if a state rejects it and (2) that treaties which do not allow for contracting parties to simply withdraw are profoundly undemocratic because they bind future governments.
The OUT camp should press the major political parties to commit themselves to ignoring Article 50. If a party refuses that can be used against them because it will make them look suspicious.
Read more at http://livinginamadhouse.wordpress.com/2013/05/27/making-the-going-good-for-getting-out/