Britain’s deal with the European Union is legally binding and irreversibly enshrined in treaty, Prime Minister David Cameron says; opponents, including his own justice minister, a personal friend, say it is not.
In a sense both are right.
The measures Cameron agreed with the other 27 EU national leaders was in the form of a Decision of the heads of state and government in the European Council. That has legal force and Britain has lodged the agreement as an international treaty at the United Nations. But full implementation faces hurdles:
European Commission drafts laws
A politically important part of the package, letting Cameron keep an election pledge to cut tax credits and family support for EU immigrants, is to be implemented by legislation drafted by the European Commission and passed by the European Parliament in negotiation with the national governments in the Council. The Commission has outlined its plan and leaders of the main parliamentary party groups have endorsed it. But the Commission will only present its full legislative proposals after Britain votes to stay. The whole package vanishes if it votes to leave.
European Parliament passes laws
The speaker and representatives of three major parties in the European Parliament were involved in negotiating the package and undertook to support the necessary legislation. However, the legislature insists it cannot guarantee a majority to approve Commission drafts it will not see until after the referendum. Leaders of the centre-right, centre-left and liberal blocs represent nearly two thirds of Parliament’s 751 seats. But party discipline in the single-chamber legislature is weak and often fractures on national lines. There is strong support in Parliament for keeping Britain in the EU, but it will not review the necessary legislation until after the referendum. East European MEPs (members of European Parliament) are already saying they dislike compatriots being seen as second-class citizens.
European Court of Justice hears complaints
The EU’s highest court, hearing complaints that national law or judges have abused citizens’ treaty rights, has made several rulings lately in support of rich states’ efforts to curb “benefit tourism” by EU citizens migrating from poorer states. Those have tightened rules to restrict free movement in the EU to workers -- limitations underlined by the Council decision. Much of Cameron’s package is to clarify and interpret the EU treaties for the benefit of the judges in Luxembourg. While the package cannot formally be “pre-approved” by the apex court, senior officials say lawyers from the Court and other EU bodies are in regular contact and argue it is unusual for judges to overrule explicit council interpretations. But EU officials also say they cannot guarantee how judges will rule.
European electors ratify treaty changes
Two elements of the package, on financial relations between non-euro states like Britain and the euro zone and on a special exemption for Britain from further EU political integration, are to be written into EU treaties when these are next revised. However, No one knows when the next treaty revision might be. All 28 states would need to ratify amendments. Many can do so in national parliaments. But others, among them France, need a referendum. And voters across Europe seem liable to vote down any measure perceived as promoted by the elites in Brussels. So while future treaty drafters are legally bound to do what the Council decision on Britain says, it is not clear how or when treaties will be amended or if the changes can be ratified.
European Council frames laws
The European Council, comprising the 28 national leaders, can always change its mind and reverse itself -- though as most such decisions must be unanimous, Britain can veto such a move.