The Legal Status of the UK’s Agreement: Counting the Change

On 19 February 2016, sometime well after breakfast, the members of the European Council reached an agreement concerning a new settlement for the United Kingdom within the EU. The Government was quick to proclaim that the UK’s ‘special status’ in ‘a reformed European Union’ amounts to ‘the best of both worlds’. David Cameron’s ‘hard-headed assessment’ is that the UK will be stronger, safer and better off by remaining inside this reformed European Union, and so he is recommending that the British people vote to remain in the EU in the in-out referendum on 23 June.

The substance of the reforms, which focus on economic governance, competitiveness, sovereignty, and welfare and free movement, is and will continue to be much debated. This contribution instead focuses on a more technical question - the legal status of the deal – a subject which is now said to be creating ‘open warfare’ in the Tory party.

Let me attempt to distil the question. To do so I focus on one key aspect of the European Council Decision; the agreement to restrict the social benefits payable to migrants. In this area, there is pre-existing Court of Justice case law interpreting the provisions of the Treaties expansively, so as to afford EU law rights to economically inactive migrants. Many governments have argued that this case law goes too far, and that it creates threats to the sustainability of social security systems. The Agreement reached in February amounts to a further attempt to limit the rights which will be available for migrants in the UK. The question I am addressing is whether it will be successful in influencing the Court's interpretation of the Treaties.

The Heads of State certainly appear to have intended to attach the greatest possible legal significance to their Agreement. They assert that ‘the content of the Decision is fully compatible with the Treaties’. Its intent is to clarify ‘certain questions of particular importance to the Member States so that such clarification will have to be taken into consideration as being an instrument for the interpretation of the Treaties’ (emphasis added).

Lessons from Latin America

Simón Bolívar

Simon Bolivar pledged to dedicate his life to establishing freedom in Spain’s American colonies, whilst standing on a hill outside Rome in 1805. His formative years were spent in Spain and France, where he developed the ideas that would sustain his rise to political prominence in South America. After independence from Spain had been secured on the battlefield, by 1821, Bolivar’s efforts were devoted to constructing a political union across South America, known as Greater Colombia, which he hoped would encompass the territories we now know as Colombia, Venezuela, Panama, Ecuador, and Peru, and possibly, with a tailwind and some luck, even Argentina, Chile, Paraguay and Uruguay. But communication was difficult in the 1820s, and national and regional identities surged in the wake of warfare against the colonial power and political struggles amongst landowning elites. Bolivar himself had come to represent the ills of centralized government, and his last years were overshadowed by numerous regional revolts against his rule. Bolivar died in 1830 declaring that ‘if my death contributes anything to preserving the Union, it will not have been in vain’.

Bolivar’s principal ally in his attempts to construct and consolidate a super-republic in South America was Great Britain. British diplomats and investors thought (and with hindsight, they were right) that one big state would be more likely to repay its loans to British banks than many small and impoverished states. George Canning and his Foreign Office team through the 1820s also thought that a strong united Hispanic South America would be able to more effectively defend itself against imperial incursions from France, Spain or the United States. In Brazil, the territorial unity of Portugal’s imperial possessions was retained through maintenance of a monarchical regime. In Hispanic South America, occupying a smaller landmass than Brazil, by 1830 there were nine independent republics  - Argentina, Bolivia, Chile, Colombia, Ecuador, Peru, Paraguay, Uruguay and Venezuela. The last two centuries have seen many leaders and institutions try to build continental unions across political, economic and legal spheres. These efforts have been revitalised in the last two decades, sometimes inspired by the history of the European Union, sometimes wary of its mistakes. More often they have been inspired by South America’s own history, and have attempted to use recent revolutions in communications technology in order to achieve the union that was impossible for Bolivar.

No Way Out? Why Brexit Means No Exit

By Lightup4u (Own work) [CC BY-SA 3.0], via Wikimedia Commons 



Two key arguments continue to be advanced by those who favour a British exit from the European Union. It is firstly, they claim, a way of managing immigration. Secondly, it is a crucial step towards restoring national sovereignty. The two ideas meet in the battle cry ‘Securing Britain’s borders’.

The modern understanding of national sovereignty – the principle that the authority to govern emanates from a nation that exists as a single body able to express its will – is, well, a very European one. It is found in Article 3 of the French Revolution’s Declaration of the Rights of Man and of the Citizen of 1789. Note the absence of any mention of nationality here. Indeed, it’s that very universalism – the idea that the Revolution was producing a blueprint for the governance of all national societies – that drove many French citizens to believe that their nation above all others was invested with a mission: to lead the peoples of Europe from tyranny to liberty. And it was against this national, revolutionary zeal that many European nations reacted. But, in order to mobilise against the armies of the First Republic and then of Napoleon Bonaparte, the governments of Britain, Prussia and Russia, for example, had to resort increasingly to the sort of popular nationalism that gripped France from the Battle of Valmy to the Battle of Waterloo.

Nationalisms, like nations, do not exist in a vacuum; they react and bump against each other and are informed by intense rivalries. In the late nineteenth and early twentieth centuries France was to Germany what Arsenal are to Spurs. But nationalists even at this high point of nationalistic rivalry were never isolationist. Even the most virulent French nationalists travelled extensively in the interwar years, sharing ideas, but also expressing differences, with like-minded movements and individuals across Europe. The Action Française, a far-right monarchist movement that  hankered for a return to pre-Revolutionary absolutism under a king who ruled by divine right, admired Mussolini’s smartly-clad Black Shirts, raved about the economic miracle that was Salazar’s New State in Portugal, and then cheered on Franco’s National Revolution and its eradication of the Spanish Republic during that country’s civil war. Underpinning this enthusiasm for authoritarianism was a commitment to the principle of Latinity – a belief that the Mediterranean nations share the cultural and political heritage of Ancient Rome and that the region, and the French nation, would rise again to international prominence by rejecting democracy.

Welcome to Europe and Me, a blog for University of Bristol staff (researchers and teachers) in which they are invited to explore the relationship between their work and Europe.

This is, of course, a crucial moment in the history of Europe and contributors are encouraged to submit posts to the editor, Martin Hurcombe, that reflect on issues relating directly or indirectly to current debates surrounding the European Union.

The issue of the forthcoming EU referendum is obviously of primary importance to many of us. In particular, the blog seeks to offer a forum in which contributors and readers can contribute to an informed debate concerning the future of the UK’s relationship with Europe. This is, then a forum through which we seek to understand the nature and extent of the UK's, but also the University's and the city's relationship with the EU and how this might change following either a renegotiation of the UK's membership or its outright exit. Contributors are encouraged therefore to consider the intersection of their research with key debates and ideas circulating around the subject of the referendum as well as to address broader subjects, such as current strategies for dealing with migration, the prospect of a common defence policy, and others beside.

Submissions should be approximately 800 words in total and e-mailed to m.j.hurcombe@bristol.ac.uk.