In this substantial extract of the forthcoming revised 'The Risk of Brexit', the author considers the key factors and figures that will play a major role in determining the re-negotiation’s success and explores possible opportunities for Cameron as well as potential pitfalls.
[...]The frustration with Cameron in Brussels and national capitals is not because of a point blank refusal to contemplate the idea of renegotiation. Rather it has been the British government’s opaqueness in spelling out what its precise renegotiation objectives are. [...]
But for all the lack of detail, there has been a big change in the Conservative government’s mood and approach since May 2015. The renegotiation and referendum policy is now for real and the government’s approach has ceased to be casual and dilatory. The government clearly wants to press ahead speedily with the process of renegotiation. It has done nothing to squash speculation of a referendum in 2016, possibly as early as June. It has signalled a clear intent that it is aiming for an outcome which will enable Cameron to recommend a vote for Britain to stay in the EU.
Cameron has also launched a charm offensive with our partners. Before the June European council, David Cameron met or spoke to every single one of his opposite numbers individually. [...]
There has been repeated speculation about whether or not the government’s renegotiation agenda requires treaty change. Cameron insists that it does, but with little clarity about what he means in practice by this statement. The government does not expect treaty change to be ratified in all member states before a British referendum. However the government is exploring some legally binding form of pre-commitment to treaty change. [...]
Nonetheless, it is difficult to envisage how a legally binding protocol could embrace a significantly wider agenda of treaty changes. For this would amount to a pre-negotiation before they had gone through the proper procedures laid down in the present treaties for a convention and intergovernmental conference. The EU is a legally ingenious entity but it would be difficult for our partners and the European parliament to go along with such an approach.
One possibility is that the European council might agree to issue a declaration setting out an agreed direction of change. [...]
What might it then be possible for Cameron to negotiate? One can envisage that an eventual package might emerge consisting of three elements:
• First, a protocol that contains legally binding opt-outs and guarantees specific to the UK.
• Second, a declaration of some (but lesser) legal effect about the future direction of treaty change in the EU.
• Third, when it comes to specific changes in EU legislation, regulation and policy, a formal white paper tabled by the European commission could be endorsed by both the European council and European parliament.The contents of such a paper could be quite detailed, including draft amendments to EU legislation. However this would have a status no different to a UK white paper. It could not pre-empt the detailed legislative process. The commission would make clear that this was not a precedent for restricting their future right of legislative initiative under the treaties; the council of ministers would still be obligated to agree the precise terms of any legislative change in detail; and the parliament could not compromise on its right to co-decide new EU legislation. [...]
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