The EU Referendum – Four Months to Go, Five Things We Learned

The government has announced that the UK will vote on whether to leave or remain in the European Union on 23 June. Aside from that date, here are five other things we learned about the referendum within the last ten days…

1. The British are Exceptional

David Cameron returned from the European Council meeting on 18-19 February with a deal in the form of a joint decision by all 28 member states ‘concerning a new settlement for the United Kingdom within the European Union’ (the full text is available here).

The effect of this was substantially the same as the draft deal earlier agreed with Donald Tusk (about which I wrote here). The headline grabbing provisions relate to social security, notably the right to restrict in-work benefits to migrants for a period of seven years. But the more fundamental changes are concerned with the maintenance of future national sovereignty and with relations in a two-speed Europe between the core (the Eurozone) and the periphery (everyone else). On both of these subjects, the agreement promises Treaty change.

Cameron’s exercise in negotiation was once portrayed as being about the reform of the EU. But the deal is neither about that nor delivers it. The deal is about recognising, expanding, and entrenching British exceptionalism as a permanent feature of the EU polity.

Nowhere is this clearer than in the provisions on sovereignty. The draft deal said, in terms which applied generally to all member states, that references in the Treaties to ever closer union ‘are not an equivalent to the objective of political integration’. In the final deal this line was quietly dropped. Impliedly, this means that federalist political integration is precisely what ‘ever closer union’ means, or at least that this meaning is what some member states wish to claim for it.

The point is now made instead in terms which are solely about the position of the UK –

‘It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union.’

So the main effect of the agreement is that the UK draws a line under its commitment to the European project, and the rest of the EU agrees to it doing so, by way of exception, for the purpose of avoiding it withdrawing from that project entirely.

2. The Deal is (More or Less) Legally Binding

Michael Gove, who is not a lawyer but is the Lord Chancellor and Justice Secretary, seized the headlines for a day with his claim that David Cameron’s deal is not legally-binding.

This is incorrect. The deal is an agreement between nation states which is binding on them in international law, and its intention to have that effect is expressly stated in its terms. It becomes effective the moment the UK votes to remain in the EU.

Nonetheless, Gove did have something to work with. The ultimate arbiter of the meaning of the Treaties is the Court of Justice of the European Union (CJEU). Insofar as the decision issued by the European Council indicates how the member states agree the Treaties should be interpreted, the CJEU must take it into account, but is not bound by it. Ultimately, the CJEU is required to apply the Treaties as they stand. In theory at least, its interpretation may differ from that on which the member states have agreed.

Therefore, in order to give full effect to the deal, various Treaty changes are required. As noted above, a commitment to these forms part of what was agreed (though their precise wording is a matter for future discussion). But when will this happen? The decision states that the Treaties will be amended ‘at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States’.

In other words, not yet, and only as part of a future package of measures on other things. Moreover, as this wording hints, some member states have constitutions under which a major Treaty change may (or must) be put to a national referendum before ratification. If the citizens of even one member state vetoed the proposals, the revisions could not be made. In short, there are a number of hurdles that need to be cleared between agreeing to Treaty change in principle and delivering it in practice.

So while Gove was strictly wrong, the situation is sufficiently complex to allow him to say that he had stayed within the limits of reasonable opinion.

Nevertheless, these considerations exist largely at the level of legal theory. The CJEU, like all courts, is not isolated from the political environment in which it operates. The prospect that it might fail to act consistently with the Council’s decision is very remote.

3. There is No More Business As Usual

After Gove made his public statement, the government said that he was no longer able to receive advice from the civil service on EU legal matters relating to the referendum. Some commentators took this as an indication that he was being punished by having privileges withdrawn. In fact, the government was merely stating a pre-established position. For the next few months, this is the new normal.

When David Cameron announced in the House of Commons on 5 January that individual ministers would be able to campaign against official government policy while remaining in the cabinet (his statement is here), he was indicating a wholly exceptional departure from the usual rule of collective responsibility. This was a matter of political expediency, but had important consequences for the functioning of government.

The suspension of collective responsibility took effect once the Prime Minister concluded his deal at the European Council. Immediately afterwards, five full members of cabinet (Gove, Duncan Smith, Villiers, Whittingdale, Grayling) and a minister who attends cabinet meetings (Patel) indicated support for the campaign to leave the EU.

On 23 February, Sir Jeremy Heywood, the Head of the Civil Service, wrote to civil servants (in a published letter) to spell out the implications of this. The key point is that the role of the civil service is to support the government of the day. Ministers who have chosen to adopt a position at odds with government policy on the EU referendum are consequently disentitled to support on that issue. Therefore –

‘…it will not be appropriate or permissible for the Civil Service to support Ministers who oppose the Government’s official position by providing briefing or speech material on this matter. This includes access to official departmental papers, excepting papers that Ministers have previously seen on issues relating to the referendum question prior to the suspension of collective agreement. These rules will apply also to their special advisers.’

So while the ministers in question may remain in government, they are no longer of the government as far as the referendum is concerned. Hence the striking fact that the minister responsible for the legal system in England and Wales is no longer entitled to see the advice of his own departmental lawyers on the most important legal issue of the day.*

4. The Electoral Commission has a Choice – Boris or Nigel

Standing outside his house and announcing to the assembled media that he too was going to campaign for withdrawal from the EU, the Mayor of London, Boris Johnson, stumbled over his words. He said, with some hesitation – ‘I will be advocating Vote Leave…or whatever the team is called…I understand there are many of them’ (see the BBC News video).

Johnson was referring to the fact that there is more than one campaign group vying for the role of lead campaigner for the vote to leave the EU. While he had made up his mind which outcome to contend for, he appeared slightly more unsure about which group to join.

Of the available alternatives, two have established by far the strongest positions. Vote Leave is the closest to an establishment campaign group, and is supported by all of the government ministers mentioned above, as well (in the end) as being joined by Johnson himself. Its main rival is Grassroots Out, whose most recognisable face is Nigel Farage of UKIP.

Both are cross-party groupings, but only one can be the official lead campaigner. This matters because the body designated as lead campaigner can spend up to £7m during the official ten week referendum period, will be entitled to support from public funds of up to £600,000, and will have the right to air time for its referendum campaign broadcasts. The body which is not designated will have a spending limit of £700,000, receive no public funding, and have no broadcasting rights.

Political parties will be entitled to campaign and have their own separate spending limits (referenced to share of the vote at the last election). But the cross-party groupings have a particularly important role to play in a referendum addressing matters which transcend everyday party politics.

The choice between the Vote Leave and Grassroots Out campaigns falls to be made by the Electoral Commission. Under regulations published in draft by the government last week – the European Union Referendum (Date of Referendum etc.) Regulations 2016 – competing groups must apply for designation as the lead campaigner by 4 March.

In theory, the Electoral Commission could choose to designate no-one. In practice, it will have to choose one of the candidate groups, and has until the beginning of the referendum period, which the draft regulations specify as 15 April, in which to do so.

5. The Campaign is (for now) Asymmetric

Those campaigning for the UK to leave the EU may be divided into competing camps, but there is only one  group seriously in the running for the role of designated lead campaigner for remaining in the EU – the Britain Stronger In Europe group.

In the pre-referendum period skirmishing, its contribution to the debate has gone largely unnoticed and it has failed to establish itself as a household name, apparently even in the household of its own chairman, Stuart Rose (see the Sky News video).

None of this, however, is likely to matter at this stage of proceedings. The government is under no current requirement to maintain neutrality. As indicated above, it has an official policy which it is now actively promoting.

For instance in its report submitted to Parliament under section 6 of the EU Referendum Act 2015 – nominally to state its formal opinion on David Cameron’s deal (and available here) – it adopts a policy line that, staying in the EU in the light of its exceptional status, the UK gets ‘the best of both worlds’.

Similarly, in a report published today (29 February) on the superficially dry and legalistic subject of ‘The Process for Withdrawing from the European Union’ (available here), the Cabinet Office takes the position that a vote to leave would be very risky –

‘A vote to leave the EU would be the start, not the end, of a process. It would begin a period of uncertainty, of unknown length, and an unpredictable outcome.’

There will no doubt be a more in this vein. While the full resources of the government are being utilised in this way to argue the case for remaining in the EU, the relatively anaemic nature of the Britain Stronger In Europe campaign appears unimportant.

In time, however, this will change. The 28 days immediately preceding the referendum are a period of purdah under section 125 of the Political Parties, Elections and Referendums Act 2000. Unless exempted by secondary legislation, which would be highly controversial, publications by central government relating to the subject matter of the referendum must cease at this point.

We might expect to see the government make full use of the time it has available. In the final few weeks of campaigning, the designated cross-party campaigns will be expected to take centre stage.

*  Postscript

It is unclear precisely what those ministers who are campaigning for the UK to leave the EU expected, but Sir Jeremy Heywood’s letter appeared to take them by surprise and has been highly controversial in the Vote Leave camp.

On 1 March, Heywood appeared before the Public Administration & Constitutional Affairs Committee of the House of Commons. All his skills as a civil service mandarin were fully in evidence, and at the end of the session the Brexit-supporting chair of the committee, Bernard Jenkin, pronounced himself ‘reassured’.

In fact, Heywood had given nothing away, beyond the suggestion that ‘pure facts’ would not be withheld from ministers by their civil servants. Even this was expressed in heavily guarded terms – ‘If there is factual material that is generally available in the department – I would have discuss that with the prime minister – but I am pretty sure he would be comfortable about that being shared.’

In the morning session on the same day, Sir Jonathan Stephens, Permanent Secretary at the Northern Ireland Office, had been much more direct about what his recusant minister (Theresa Villiers) could expect. When contending for Brexit she was acting in a ‘personal capacity’, and if she wanted to see government documents she could ‘put in a freedom of information request’ like anyone else. This is the blunt reality of the situation.