15 February 2016

There have been rumblings over the past couple of weeks about the European Parliament’s role in the proposed deal put forward by European Council President Donald Tusk. These culminated in concerns today that the Parliament could reject the deal or unpick it in the future.

Could the European Parliament reject parts of the deal?

The short answer is that the risk is not zero.

This discussion applies to the parts of the deal that require further EU legislation after the referendum – these are the proposals for an ‘emergency brake’ on migrants’ access to welfare and changes to child benefit rules. Under the draft deal tabled by Tusk, the ‘emergency brake’ would be set up by amending Regulation (EC) No 492/2011. Under the deal, the European Commission would table the proposed amendments after the referendum, provided that the UK votes to remain in the EU.

The Commission’s proposal would then be subject to ‘co-decision’, meaning that it would need to be adopted by a qualified majority in the Council of Ministers and by a majority in the European Parliament. As such, there is a theoretical risk that the Parliament could reject it.

However, this is why the UK government has spent a significant amount of time and effort lobbying MEPs to convince them to back the negotiations. So far, the signs have been mixed. German MEP Manfred Weber, the leader of the centre-right European People’s Party (EPP) group, sounded fairly optimistic when he said that the necessary legislation could go through in one to three months. Soon after Tusk’s proposal was published, however, Italian MEP Gianni Pittella – who leads the centre-left Socialist and Democrats (S&D) group – warned that Cameron’s plan to “lessen the rights of foreign workers” was “unacceptable.”

European Parliament President Martin Schulz has also been sending out mixed signals, ranging from constructive to downright unhelpful. However, as we have often seen in the past, this is likely to be largely about MEPs flexing their muscles and making sure the Parliament is not ignored. Schulz has already secured himself an invite to the European Council summit later this week.

It is worth remembering that it would be a politically nuclear option for member states’ MEPs to rebel against their governments, and in many cases their own party leaders, to reject a deal which their heads of government had agreed to. Let’s not forget that, unlike the UK, MEPs in many states are far more integrated with their domestic parties and politics. It seems unlikely, if German Chancellor Angela Merkel and French President François Hollande tell their MEPs and their respective political party groupings to vote to support the deal, that this would be ignored.

Furthermore, the member states represented in the Council of Ministers will be bound by the deal. This reduces the scope for MEPs to try to water down the proposals as they go through, since any amendments made by MEPs would need to be signed off by national governments. This means national ministers can present the European Parliament with a take it or leave it choice. Since throwing it out altogether is extremely unlikely, MEPs’ leverage will ultimately be limited.

Could the European Parliament unpick part of the deal at a later date?

The related fears of MEPs subsequently unpicking the deal are similar, although I think the risk is even lower. Any amendments to the legislation once it is in place (for example to remove the emergency brake or alter its practical effect) would need to be proposed by the Commission and would require approval both from the European Parliament and the Council of Ministers. As such the Parliament cannot alone undo or unpick the deal.

Lastly, the deal does provide for redress if the UK feels the deal has not been honoured. The draft proposal notes in Section E:

Any Member State may ask the President of the European Council that an issue related to the application of this Decision be discussed in the European Council.

Therefore, any disputes over the enforcement or application of the deal can be taken up at the European Council, at the level of EU leaders. Essentially, this would trigger a political discussion around finding a solution. How exactly this would be resolved is unclear, but it does give the UK recourse.

As such, given the involvement of the European Parliament, the risk of the deal being rejected or unpicked is not zero. However, there are a number of political forces working against such eventualities, while unpicking it would need the support of a qualified majority of member states as well as the Parliament. If other member states agreed to doing so it would be ultimately be the same as binning the whole deal and an invitation to the UK to leave the EU.

Can the UK do anything unilaterally to minimise these risks?

One thing that shines through from this whole discussion though, is how hard it will be to convince the British public in the referendum campaign that the deal is watertight. That is why the option mentioned above does at least allow the government to assuage some fears. Ultimately, in the campaign itself, a lot will come down to trust. Trust in terms of what  the government is saying but also trust in the other EU states to implement and stick to what they have agreed.

One option, albeit an extreme one (as we suggested in our blog on the possibility of two referendums), would be for the UK government to promise and pass legislation to hold another EU referendum if any parts of the deal are either not honoured or unpicked in the future. This could be done by passing legislation through the Houses of Parliament. However, EU partners might not be too happy with this given that it raises the spectre of future uncertainty – although any that think this referendum will put the issue to bed for good are being incredibly naïve. Such legislation could also be held hostage by domestic forces and/or signal fear on the part of the government that the deal will be unpicked in the future.