Tuesday, 26 October 2010

More Cast Iron Promises Go AWOL

Exhibit A:

As I blogged here, the Tory 'promise' of a cap on non-EU immigration is under threat. Eurogoblin rightly points out that the Free Trade Agreement with India requires unanimity in the Council - in effect we have a veto*. But it's clear that the Tories, not wanting to be isolated in Europe, are looking to drop their election promise, not exercise our veto and we are being softened up for the eventual announcement:
David Cameron has hinted that the coalition's controversial proposals for capping non-EU immigration may be watered down.
Perpetually unable to keep his word, should Cameron's wife be getting worried?

Personally I don't agree with an arbitrary cap, but it has come about, ironically because we don't fully control our own borders. The key to a successful immigration policy is enough flexibility to respond to economic circumstances and also to voter concerns. Immigration was the number one issue at the last election.

So faced with relentless complaints by the electorate yet impotent to control immigration from the EU , successive governments have responded in the only way possible - ever more draconian measures on the only area we have control over - non-EU citizens in order to look like they were doing something. But not only is the cap hugely damaging to British business it creates the wholly unfair situation where Commonwealth countries who have regularly provided soldiers to protect our nation have far fewer rights to enter our country, than, say, those from Estonia.

However what Cameron may found out soon enough, while he's showing contempt for voters, is that a weak economy combined with job losses, public sector cuts and uncontrolled immigration makes for a very toxic mix.

Exhibit B:

A post by Douglas Carswell on how another referendum promise will broken:
Now there could well be a new EU treaty, without any referendum - despite what we were promised.
Prepare for the government spin, which will likely say:
1. This new agreement involving France and Germany etc is not really a new treaty.

2. It doesn't involve giving the EU new powers in new areas. Just transfers in existing areas. And when we promised a referendum on any further transfer of new powers, we meant in new transfers of power within new areas. Obviously.

3. Besides, this is not a significant transfer of power. We were careful to say there'd be a referendum only when there were significant transfers. And we don't think this is significant. So there.

4. This new thingy, which isn't really a treaty, doesn't involve us, as we're not in the Euro. Despite what the small print might say.

5. Anyhow, look how tough we've been, getting Europe to mug us for a little less with a slightly reduced budget increase!

By Friday, there's a fair chance you'll have been fed variants of all five of the above....
Indeed Cameron will follow in Labour's footsteps in wriggling out of a commitment on a technicality (i.e. the rejected Constitution abolished previous EU treaties, but Lisbon reformed them; same outcome but different treaty etc).

It's like an election has never happened.

*Update: EuroGoblin is partly right. FTAs can be 'mixed' agreements (include political stuff) and therefore it would require unanimity by member states - in effect creating a veto. This is what happened with South Korea and Columbia. However the EU in general has exclusive competence on FTAs under Lisbon article 188c (formally 133) so any agreement would be subjected to QMV which means no veto for the UK, therefore Cameron could do little about it.

I'm not sure whether 'India' is a mixed agreement. Will update if I find out.

Eurogoblin in the comments confirms that India is a mixed agreement, therefore Cameron has a veto.


  1. You're right, the Commission has competence over trade negotiations. However, FTAs fall outside the realm of normal trade negotiations and rarely fall exclusively under the competence of the Commission. The EU-India FTA, for example, includes service liberalisation (see here), which means it falls under unanimity voting in the Council.

  2. Thanks Eurogoblin. Basically you're confirming that India is a 'mixed' agreement?

  3. Not exactly. Within the treaty article you mentioned (paragraph 4) there is provision for unanimity voting:

    "For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules."

    And also:

    "(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;

    (b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them."

    FTAs typically include agreements on services, intellectual property, etc. - so they generally fall outside of QMV.

  4. I think we're both referring to the same thing Eurogoblin.

    Basically the EU has exclusive competence on trade agreements (QMV) unless it contains the single topics which you highlight which trigger the unanimity clause. These FTAs which fall outside of QMV (i.e. exclusive competence) are known as 'mixed' agreements and are as you say typical. (my phrase 'political stuff' was probably a little misleading).

    Anyway the outcome is Cameron has a veto

  5. Hold it... I'm about to contradict myself (and you, mind!). ;-)

    I think you were right the first time - EU FTAs are unanimity when they're "mixed" political agreements - i.e. when they include provisions outside of trade. That much is definite.

    Services are part of the common commercial policy (and hence decided by QMV). The exception is if "agreements include provisions for which unanimity is required for the adoption of internal rules." Not having seen the FTA, I can't comment on whether or not that's the case.

    The thing is - the scope of FTAs are generally very large. Essentially, they're giving a third country access to the Single Market. With such a broad scope, there's usually something which justifies unanimity voting (such as with the South Korea agreement). That's why I say FTAs are normally agreed by unanimity.

    However - because the draft of the FTA is essentially negotiated in secret (as Bruno confirmed on my blog), we can't know for sure. I'd put money on the FTA coming under unanimity voting - that's how strongly I feel about it. But I wouldn't put a great deal of money.

  6. Here's a good summary (PDF - scroll down to the end). I'll just quote the most relevant bit:

    "Legally, qualified majority has been the rule since the beginning of the common commercial policy. This was an important leverage for the Commission even if, in practice, the Council has practically always acted by consensus. Under the Lisbon Treaty, qualified majority remains as a rule. However, agreements covering the new issues mentioned before (services, intellectual property rights, investment [EG: These are issues which fall under FTAs]) fall under unanimity in three cases (domestic implementation by unanimity, audiovisual services that affect cultural or linguistic diversity, services in the social, education or health sector). This again shows that every Member State in the Council will be needed to advance EU trade policy, in particular in the services sector, which is so important for economic growth.

    Moreover, even post-Lisbon the practice of so-called mixed agreements has
    continued. These are agreements which are concluded both by the EU and by all of its member States on the one side, and by the third country, on the other side.

    The EU-Korea free trade agreement is a case in point.

    It might have been possible to design this agreement as an EU-only agreement.
    However, certain issues, such as cultural cooperation, triggered the need to conclude it together with all our Member states. Some say that this was a good choice to make sure that a landmark deal with major political and commercial significance for the whole of the European Union is supported by everyone. However, it also means the FTA must be ratified by national parliaments in all 27 Member States. In some countries, like Belgium, it means up to 7 parliamentary assemblies."

    I think this suggests it'll be unanimity. The service sector is more complicated in single market law than other things (it might be the most complicated part), but I'm pretty sure whatever is in the FTA is going to run up against this snag.

    Not being able to read the India FTA doesn't help, though.

  7. Thanks Eurogoblin that was all most helpful. But as you say not seeing the ETA makes the job a little harder - I've been trying to find it for some time.

    Unanimity is the most likely option, though not certain (you could be putting money on a Devon Loch), from the texts you've highlighted.

    Anyway Mr Cameron is already preparing to renege on a promise regardless of whether he can do anything or not.

  8. No problem. Happy to try and sort this issue out with a sensible, critical eurosceptic (have just added you to my blogroll and feedreader, btw).

  9. Sensible? I'm sure my wife will disagree! But thanks anyway.