Is David Cameron mad attacking freedom of movement in the EU?
When I first heard about David Cameron and his attack on the European Union’s principle of freedom of movement, I thought he was mad. Ask 1000 people to say something about the European Union (EU), and I’m guessing that ‘single market’ is the clear winner. By picking on freedom of movement, in other words, Mr. Cameron really did seem to be attacking the heart of what Europe has stood for these past sixty years. That’s what his fellow leaders in the EU were telling him, too. Take German Chancellor Angela Merkel, for example, whose spokesman said “Germany does not want to touch the basic principle of free movement of persons within the EU”. Likewise EU Commission President Jean-Claude Juncker, who said recently “I do exclude major treaty changes as far as the freedom of movement is concerned”.
Does he secretly desire a UK EU exit, even?
I even wondered at one point whether David Cameron secretly wanted his whole EU renegotiation to fail, at which point he could campaign for a No vote (a bit like Alexis Tsipras, in other words). In one interview late last year, I almost fell off my chair when he expressed a preference for the old Imperial systems of weights and measures – pounds and ounces – rather than the (to me) obviously superior metric system. I’m with David Cameron in terms of keeping the pound in terms of the UK’s national currency, but not pounds and ounces: did he want to go back to pounds, shillings and pence as well? Decimalisation happened in 1971 in the UK, while EU entry was in 1973: to people my age, there’s something a bit synonymous about the two.
Just what was David Cameron up to with his attack on freedom of movement? I decided to look back at the original Treaty of Rome: something this fundamental to the EU would definitely be covered in the Treaty of Rome, I thought.
Freedom of movement: what the Treaties say
And indeed it is. In fact, Title III of the Treaty of Rome is called “Free Movement of Persons, Services & Capital”. So were Angela Merkel and Jean-Claude Juncker right? And was David Cameron wrong? Not so fast. Because the very next chapter heading of the Treaty of Rome is ‘Workers’, not ‘Persons’. In fact, in the whole of the text of Title III of the Treaty of Rome, the word ‘Persons’ only appears once (as in ‘Persons’ who are dependents of ‘Workers’), relative to the nine appearances of ‘Workers’.
I couldn’t believe what I’d just read, actually. I’ll repeat it here, just in case your head in still spinning, too: the freedom of movement in the EU’s Treaty of Rome applies only to Workers, and not to Persons generally.
“Perhaps it was a mistake”, I thought. They must have changed it all in subsequent treaty revisions.
But they haven’t. Look at the current Treaty of the Functioning of the European Union (or TFEU, one of the two documents comprising the Lisbon Treaty), and the relevant delineation between freedom of movement for ‘Persons’ (in the Title) and ‘Workers’ (in the Chapter headings and text) is still there. If anything, it’s even clearer, as in Article 45, which says:
“Freedom of movement for workers shall be secured within the Union”.
And that’s not all. Because whereas Article 48 of the TFEU grants the European Parliament the right to adopt measures “in the field of social security as are necessary to provide freedom of movement for workers”, the very next paragraph goes on to say that member states can object if such proposed measures “affect important aspects of its social security system…or would affect the financial balance of that system”, thereby consigning Brussels’ efforts to their national dustbin. And while Article 5 of the TFEU makes clear that “the Union may take initiatives to ensure co-ordination of Member States’ social policies”, a November 2014 ruling from the European Court of Justice is even clearer with respect to so-called welfare-tourism, stating that:
“the regulation on the coordination of social security systems does not govern the conditions for the grant of special non-contributory cash benefits. As that competence lies with national legislatures, they also have competence to define the extent of the social cover provided by that type of benefit. Consequently, when the Member States lay down the conditions for the grant of special non-contributory cash benefits and the extent of such benefits, they are not implementing EU law, and the Charter of Fundamental Rights of the EU is therefore not applicable.”
Then there’s subsidiarity. And Schengen
In the EU, remember, subsidiarity rules: if something isn’t in the treaties, then it’s for the individual nation states to decide. Mind you, there is the small matter of the Charter of Fundamental Rights, and whether that actually applies to the UK (and Poland) given Protocol 30 of the TFEU. Well, we say ‘potato’ in the UK (it doesn’t), while they say ‘potato’ in the EU (it does). It isn’t quite clear, in other words. Which, in the EU of all places, really isn’t that much of a shock.
By the way, when it comes to migration from outside the EU, the UK is also – and definitely – outside the Schengen Area, which means that it retains the right to examine passports at its borders, to set criteria for entry, and to turn away anyone not meeting its entry criteria. Not only that, but the so-called Dublin III regulations put most of the pressure with respect to non-EU migration on the EU countries where non-EU migrants first arrive, such as Italy and Greece. No wonder Italy’s Mr. Renzi was so animated about the issue recently. He even went so far as to say “If this is your idea of Europe, you can keep it”, apparently.
And just yesterday, it was announced that under new national legislation in the UK, the eviction of illegal immigrants from private property will no longer require a Court order.
By the way, my elder son came back from France last weekend through Eurotunnel, reporting that there were more problems at the Pet Reception centre with respect to pet paperwork than there were migrants lurking by the roadside (it was two versus one, if you want to know).
Freedom of Movement is an open-and-shut issue, alright: but not in the way you might think
I was right to think that the principle of Freedom of Movement in the EU was an open and shut case. But what I hadn’t realised was that it was Mr. Cameron who was right, and Chancellor Merkel and Commission President Juncker who were wrong.
Why this matters is simple. It means that one of the biggest stumbling blocks to a UK-inspired EU Treaty renegotiation is actually something of a red herring, and why it is much more likely to happen sometime between now and 2018 than most people think (‘Are we on the road to a Tallinn Treaty’, The Top Note, 21st July 2015).
Talking of episodes…
Actually, this whole EU freedom of movement ‘episode’ reminds me of an episode in the old British TV comedy Yes Minister in which the minister, Mr. Hacker, suddenly needs to generate some positive publicity about himself in order to bolster his chances to be elected Prime Minister. With little else in his in-tray at the time, his officials hit upon the idea of generating a false crisis in Europe, with respect to sausage labelling. Once public opinion is suitably inflamed, and despite accusation of ‘dirty tricks’ from Brussels, the crafty British officials resolve the problem by agreeing with Brussels a special opt-out for ‘the British sausage’. With his ratings thus increased, Mr. Hacker goes on to win the election, and with that come two further series of the show, now called Yes Prime Minister instead.
The comedy crisis in question was the Euro-sausage crisis, by the way. Of course, in David Cameron’s case, this is apparently his last series of Yes Prime Minister (i.e. he won’t be seeking a further re-election). However, a successful UK vote to stay in the EU and a successful treaty revision which strengthens the Union’s economic governance while clarifying the relationship between the Euro ins and outs wouldn’t be a bad finale. It might even put Mr. Cameron in line for a Bafta or two!