Explainer: renegotiating the UK’s position in the EU

There are three routes open to the Prime Minister. Niccola Caranti

With more than a hundred MPs voting to amend the Queen’s Speech this week, the UK’s role in Europe continues to confound politicians and citizens alike.

Among all the chatter, it’s hard to get a sense of what politicians actually mean when they talk about reforming our relationship with the EU, and how that might be achieved.

Prime Minister David Cameron hopes to force the EU to agree to fundamental change before the promised in-out referendum takes place before 2017. He believes a “Yes” vote can be secured if the reforms are big enough to convince the public that the benefits of continued membership outweigh the burdens.

There may be common ground with other governments over some issues, such as increasing the role of national parliaments in EU affairs. Nevertheless, in seeking to renegotiate with the EU, the Prime Minister will face grave difficulties whatever he demands.

What are Cameron’s options?

There are essentially three routes open to him:

  1. Securing the repeal of existing EU legislation by which the UK no longer wishes to be bound.

  2. Treaty change to repatriate certain powers from Brussels back to the UK so that we opt out of whole fields of EU law.

  3. UK exit and renegotiation of a new treaty relationship with the EU based upon a more limited range of issues.

Securing repeal

The first option lies at the heart of many of the complaints laid against the EU from within the UK; that there is excessive “red-tape” which burdens business and makes the EU uncompetitive. Reforms here would, in principle, be the most straightforward to secure, requiring no treaty changes but only legislative repeal by the EU.

In practice, however, this would potentially involve reviewing the whole pantheon of EU legislation (which now totals some 10,700 measures) governing the single market. By joining the EU, all members agree to accept this core of rules which are designed to help create one set of rules and a level playing field for companies to compete across all the member states.

For a single member state to be allowed to opt out of individual laws, for example those requiring temporary workers to be granted holiday pay, is politically impossible and would disturb the premise of the single market.

Instead, the UK would have to persuade a sufficient number of other member states and the European Parliament to repeal such laws. This would invite every country to propose their own favoured laws to repeal. It is difficult to see that such a lengthy process is realistic or that the UK would be able to seriously remove many of the laws it objects to.

Treaty change

The second option is more difficult because treaty changes require ratification by all of the member states; majority voting is not allowed.

But a bargain could be stuck. The member states which have adopted the Euro wish to integrate further and this too may require treaty amendments. To achieve this, other member states must get the UK to give its consent.

In return for this, the UK could demand that some powers, for example over criminal justice, be repatriated. Member states might well agree to that, but not to the UK opting out of laws governing the single market, which has always been an “all-or-nothing” package.

And the other EU members might be able to sign a separate agreement amongst themselves anyway. This has happened before over the Fiscal Compact in 2011.

There seems to be little appetite within the EU right now for further treaty change over the medium-term. The UK may therefore have little opportunity to attempt to deploy this strategy.

UK exit

This leaves the option of a UK exit, which arises if the referendum results in a “No” vote. In this situation, the UK can give two years’ notice of its intention to leave the EU.

Even then, the UK would remain bound by its obligations to EU law until it had negotiated a new relationship outside the Union. Both the UK and the EU member states would undoubtedly want to maintain open trade links and so much of the existing law would remain.

There is precedent in this in the countries of Lichtenstein, Norway, Iceland and Switzerland. But this doesn’t mean the UK could, or should, negotiate a similar arrangement.

The UK can currently influence EU policy through the European Parliament and its status as a larger member state. Norway, on the other hand, must simply accept EU legislation regarding the internal market as a signatory to the European Economic Area agreement. Switzerland similarly has no say over EU law on banking, for example, but its banks must still comply with these laws to operate in the EU.

This is why, among all the sound, fury and backroom brawlings over Europe, it’s worth considering what the UK’s options actually are, and whether they’re worth taking.

How might the UK actually go about taking the third option and leaving the EU? Find out here.