EU Referendum

EU Referendum: debunking the deal


With Mr Cameron having lodged his final "deal" and named the date for the referendum, we're finally entering a phase where the polls begin to matter. Whether or not they can be relied upon is another matter.

What makes the difference is the "deal", which is effectively the measure against which people are expected to make their voting decisions. This, at least, has always been the expectation, which we saw raised in 2012 when Andrea Leadsom reported on a YouGov survey from July 2012.

This survey had 48 percent wanting to leave and 31 percent remaining. But, if a new deal was renegotiated, the poll suggests that people would vote in a completely different way. Most – 42 as against 34 percent - would vote to remain.

We then had the poll at the beginning of February with the leavers 42 percent and the remainers 38 percent, the "don't knows" standing at 18 percent. But, if Mr Cameron brought home a "good" deal, support for leaving would drop to 23 percent. The remainers soared to 50 percent, with the "don't knows" at 24 percent.

If, on the other hand, Mr Cameron failed to secure a deal, leavers took a winning majority of 46 and the remains dropped to 32 percent. The "don't knows" were still high, but dropped back to 19 percent.

Thus, the current YouGov poll, the first since Mr Cameron concluded his deal is of more than usual interest. As recorded by The Times, it has the leavers losing four points, dropping back from 42 to 38 percent while the "remainers" on the other hand drop just one point to come in at 37 percent. The "don't knows", however, soar to 25 percent, suggesting that there is everything to play for.

However, as The Times points out, that puts the polling neck and neck, with the paper suggesting that David Cameron's attempt to focus on the threat that Brexit may pose to security and the economy "appears to be working".

Looking at the full results, though, we come up with some very interesting observations on the nature of Mr Cameron's "deal", as respondents address the question: "From what you have seen or heard, do you think the renegotiation between Britain and the EU is a good or bad deal for Britain?"

This has those who think Mr Cameron has gained a "good" deal runs to 26 percent (up from 22 percent in early Feb), while those thinking it a "bad" deal call in at 35 percent (down from 46 percent). The "don't knows" on the other hand climb from 32 to 39 percent, again indicating that there is everything to play for.

In more detail, we then see that 22 percent of respondents expected Cameron to have done a good deal, up one point, while 23 percent thought he did better than expected, up three points. Again, the "don't knows" are up, rising six points to 29 percent.

Offsetting that, 51 percent of respondent felt that the changes did not go far enough, as opposed to 15 that thought the Prime Minister has got it "about right", and only four percent felt he had gone too far. But again, sentiment is drifting in Mr Cameron's favour. At the beginning of the month, 56 percent thought he had not gone far enough.

What all this and more suggests is that it is imperative for the "leave" campaign to stop the drift, and reverse the movement of sentiment towards Mr Cameron's position. And, insofar as there seems to be a correlation between views on the deal and voting intentions, the more the deal can be trashed, the better it is for us.

Yesterday's intervention by Mr Gove, therefore, was quite helpful, although his focus on the potential part of the ECJ in challenging the deal was actually less so. The specific issue about this deal is not that it might or might not withstand a challenge on the detail, but whether it is a valid treaty.

While the deal, does in fact cover different areas, those parts which require treaty change for their implementation cannot be valid, in that they breach fundamental principles of treaty law (Articles 34 and 61 of the Vienna Convention), in seeking to impose obligations on third parties, and being made dependent on actions over which the signatories have no control, the execution of which they cannot guarantee.

The result of the Gove intervention, therefore, has led to a squabble over detail, with interjections from Joshua Rozenberg in the Guardian and an opaque piece from the BBC.

This even has Clive Coleman, legal correspondent, calling in aid the Vienna Convention to allow him to argue that: "If it walks, talks and smells like a treaty, then it is a treaty". This, he says, calling in aid Michael Gove, "is a 'deal between 28 nations all of whom believe it'. In other words, all of whom intend to be bound by it".

And there, egregiously, is the point missed. The Heads of State or Government (or HSG as we must now call them), constituted themselves as an intergovernmental forum – distinct and separate from the European Council.

Since the Lisbon Treaty came into force, the European Council has been a formal EU institution, having never previously had formal recognition in the treaties. Therefore, even though the HSG may be the same people who comprise the European Council, as bodies they have distinct and separate legal identities. The one may not instruct the other, and nor can either commit the other to binding action.

Furthermore, while it is acknowledged that a decision by the European Council can on occasions clarify EU law, the HSG's "decision" was not made by a body constituted as the European Council. According to the Legal Counsel of the European Council, "it is … a Decision of the Member States of the European Union, of an intergovernmental nature".

As to the addition of the phrase "meeting within the European Council", this "aims only at clarifying that the Heads of State or Government took the opportunity of their participation in a meeting of the European Council, of which they are all members, to adopt their decision".

It may be the case by reference to Janko Rottmann v Freistaat Bayern that such a meeting within the European Council may clarify a question of particular importance to the Member States, which that has to be "taken into consideration" as being instruments for the interpretation of the EC [EU] Treaty, but that does not give this body any powers to create obligations which are binding on the European Council or any other institution of the EU.

Yet, as we see written into the HSG "decision" in respect of both economic governance and ever closer union: "The substance of this Section will be incorporated into the Treaties at the time of their next revision …".

There can be little doubt that the context and the use of the word "will" not only implies but unequivocally commits to treaty revision, thus establishing an obligation which the HSG is in no position to make, and which cannot be imposed on EU institutions – or even successor governments to those currently represented by the HSG.

Technically, the instrument may be a "treaty" in terms of its construction. It may be irreversible in that the text cannot be changed, but the elements identified invalidate it. It may be a treaty, but that does not make it a valid treaty. As such, those elements cannot be legally binding.

As such, therefore, this matter has neither been properly addressed nor resolved by the many commentators who have discussed it. Not even a note by Arnold Ridout Counsel for European Legislation, acting for the EU Scrutiny Committee, has been of much help.

Asserting as it does: "This international law agreement does not purport to change the Treaties, only clarify or supplement them", it is plainly wrong. The phrasing in the agreement, stating: "The substance of this Section will be incorporated into the Treaties at the time of their next revision …" is clear evidence of it purporting to change the treaties.

Ridout, however, does say that the areas of future Treaty change "are … conditional, as they must be, on the approval/ratification of the Member States". He then adds: "This makes any future Treaty change vulnerable to a change in government or an adverse referendum result in another Member State".

On that basis alone, the commitment to the treaty change cannot possibly be binding, as falling within Article 61 of the Vienna Convention.

Thus, we are in a bind. As long as this issue is officially unresolved, it is not possible for us lowly creatures to express a definitive opinion. But, given how much Mr Cameron wants it buried – and how important that it is that it should not be – we must keep this alive until the deal is fully debunked, and seen to be dead in the water.