Written evidence submitted by Professor Damian Chalmers (London School of Economics and Political Science)

UK Government’s renegotiation of EU membership: parliamentary sovereignty and scrutiny

Introduction

1. This evidence will comment on three explicit goals of the Government’s negotiations with the European Union: ending the legal commitment to ever closer union; securing a veto for national parliaments over EU legislative proposals; and being able to refuse most benefits to EU citizens for their first four years of residence within the United Kingdom. The first requires treaty amendment by the ordinary revision procedure, in my view, but the change will be of no more than symbolic value. The second could probably be done by an Inter-Institutional Arrangement between the three EU Institutions. I do not think either this or incorporating the amendments in treaty reform address sufficiently the problems posed for national parliaments by EU law, however. The Government is committed to Treaty change over the last, access to benefits for citizens from other EU States. My own view is that this is counter-productive. I would suggest amendment to the secondary legislation with a Declaration by Heads of State on National Citizenship and the Limits of EU Law. 

Commitment to Ever closer Union

2. Securing release from the commitment to ‘ever closer Union’ will probably be the most legally challenging reform to secure. The commitment is found in the Preambles of both the Treaty on European Union and the Treaty on the Functioning of the European Union. Article 1 TEU also states that ‘… this Treaty marks a new stage in the process of creating an ever closer union’. The challenge is that both can only be amended in accordance with the ordinary revision procedure for amendment of the Treaties.[1] This would require a full Convention and IGC as well as ratification by all twenty seven States. This might be delicate politically as it is not evident that there is a simple division between euro area States who might wish to be part of such a project and non-euro area States who do not.

3. It is not clear to me (nor to any EU law specialist I know) why such significance is attached to this. I think it is because of a misplaced belief that this phrase has been used by the Court of Justice to interpret EU law in some aggressive manner. However, the Court’s modus operandi is quite separate from this provision and it has barely referred to it. Until recently, the only case law which has repeatedly done so has been about securing more freedom of information from the EU Institutions.[2] Most recently, the Court did refer to it in Opinion 2/13. It set out the full quote so there can be no ambiguity.

‘166, EU law is characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States (see, to that effect, judgments in Costa, EU:C:1964:66, p. 594, andInternationale Handelsgesellschaft, EU:C:1970:114, paragraph 3; Opinions 1/91, EU:C:1991:490, paragraph 21, and 1/09, EU:C:2011:123, paragraph 65; and judgment in Melloni, C‑399/11, EU:C:2013:107, paragraph 59), and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves (judgment in van Gend & Loos, EU:C:1963:1, p. 12, and Opinion 1/09, EU:C:2011:123, paragraph 65).

167. These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’.

168. This legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.’[3]

4. Whilst the Court, therefore, sees a whole series of doctrines as giving rise to the phrase, it draws, even in this judgment, little from it. It is not clear, furthermore, whether amending the phrase would send some clear message to the Court. The amendment would only relieve certain States of their commitments and not others. As the Court would be making interpretations for the whole of the Union, it cannot be assumed that such a patchwork communication would inform its judgments in any way at all. There are, finally, real risks with tampering with a phrase which is largely symbolic, namely that it will be replaced by something which will be ascribed legal meaning in ways that are unanticipated at the moment.

Role of National Parliaments

5. The Government is committed to transforming the current ‘yellow card’ procedure which allows a third of national parliaments to require the Commission to rethink whether to continue with a legislative proposal on grounds of subsidiarity[4] to a ‘red card’ procedure whereby the latter can block such proposals. It is unclear whether this proposal would require national parliaments still to justify their objections on grounds of subsidiarity or whether a more general veto could be provided.

6. Whilst it would be tidier for the Protocol on Proportionality and Subsidiarity to be formally amended, this would require amendment by the ordinary revision procedure in the same manner as removing the commitment to ‘ever closer union’. I am not sure it is necessary. It would be perfectly possible for an Interinstitutional Agreement to be made committing the Commission to withdraw any proposal where a quorum of national parliaments objected. This Agreement could, furthermore, be justified on the basis of amplifying Article 4(2) TEU which requires the Union shall respect the equality of Member States … as well their national identities, inherent in their fundamental structures, political and constitutional’.  Such an arrangement would, in my view, be legally binding, albeit it would be easier to amend as it would just require agreement by the three EU Institutions.

7. The challenge with this proposal is that it will have largely symbolic effects. In the six years since the Lisbon Treaty came into force, there is not a single instance of a proposal becoming EU law where a yellow card has been issued. The simple reason is that it would be very difficult for the Commission to secure a qualified majority in the Council where it is clear that a third of national parliaments are against the measure. Whilst desirable for protecting against the fanciful scenario where Member States vote such a proposal through, it is likely to make a difference very rarely, if at all.

8. Even if there is not much practical difference between the yellow and red card procedure, there are still a number of wider problems.

9. First, there is a collective action problem. It will often be difficult to secure the agreement of a third of national chambers, nineteen under the current thresholds. There will, nevertheless, be many circumstances where there is significant domestic parliamentary opposition across a number of States.

10. Secondly, silence is deemed to be assent. This is problematic because a requirement for democratic collective action is that there should be active agreement. Nobody says, for example, that an Act of Parliament could be deemed to be enacted through some implied consent which involves MPs sitting on their hands. It is more problematic for two other reasons. It pushes national parliaments into ‘black or white’ positions where they have either to be for or against a proposal when the reality is usually more complex, namely that they have a number of concerns which need addressing. The other reason is that it provides less incentive for the Commission to listen to national parliaments. A requirement to obtain the active agreement of a certain number of parliamentary chambers is much more demanding than making sure that a third do not actively objective, particularly when the coordinating mechanisms between national parliaments, if they wished to align positions are still weak.

12. I believe the position of national parliaments will only be secured when the following conditions are met:

• Two thirds of national parliaments should have to consent any legislative proposal.
• One third of national parliaments should be able to require the Commission to propose new legislation or amend or repeal existing legislation.
• As these enjoy greater democratic authority than EU legislative processes, individual national parliaments should be able to disapply individual acts of EU law. This would be subject to safeguards, namely that these would be required to carry out an impact assessment on the effects of disapplication on citizens and traders from other EU States and would be required to minimise these. I also suggested that these be required to submit such disapplications to COSAC who could, by a majority of its members, refer this to the European Council if there was a feeling that the procedure was being abused.

13. The position of the United Kingdom Government appears to be that this is neither practical to realise, as it would involve changing the Union in some fundamental way and there would no agreement for this, nor desirable as it would allow States to free ride and to be opportunistic about meeting their obligations.

14. I disagree. I will say a few words on both the practicability and desirability.

Practicability

15. The Government’s position is based on the insistence of the Court of Justice that it has a monopoly of decision on this and that EU law enjoys primacy over all national law. The Court has insisted on the primacy of EU law in a number of judgments and Opinions in the last few years.[5] It has also emphasised its monopoly by stating that national courts cannot declare EU law invalid[6] and that its judgments on the interpretation of EU law are authoritative statements and, therefore, should be followed.[7]

16. This position is, even on its own terms, problematic. The initial judgments, Van Gend en Loos and Costa, only talked about EU law limiting national sovereignty.[8] They did not see it as having foundational power. In addition, the Court of Justice has admitted a foundational power exists with national governments to create new powers for the EU Institutions beyond the scope of the Treaties.[9] This power, which includes the power to found legislative power, must relativise the authority of the Treaties, and thus weaken the Court’s claim to a monopoly over the quality of its authority. Thirdly, there is the ‘constitutional identity’ provision in Article 4(2) TEU. This requires the Union to ‘respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’ This has been interpreted by the Court of Justice as allowing Member States to derogate from other EU law provisions provided that the derogation is proportionate.[10] Albeit that this interpretation has been accepted by the German Constitutional Court but is highly questionable.[11] Other derogations from EU legal norms impose no duty on the Union to respect national laws. This is a significant difference. Respect involves recognition that the object of respect can make independent claims and that it has a value in its own terms which should be cherished.[12] Saying that a law or procedure expressing a national democratic identity will only be allowed if done in a proportionate manner fails to accord such respect as it limits the possibility for it to be cherished on its own terms.

17. If there are internal legal contradictions over the Court’s claim to a monopoly over the authority of EU law, a stronger challenge to that claim to monopoly is that it is contested. Quite simply, a majority of national constitutional courts believe that this power lies in the national constitutional or legal settlement rather than EU law. These settlements may choose to grant, unconditionally or in a more qualified manner, primacy to EU law, but the ultimate choice (and ultimate authority) lies with the domestic legal settlement. It is beyond the scope of this note to go through every national legal response but maybe best to quote the German Constitutional Court:

‘30. The above-mentioned principles concerning the protection of the constitutional identity and of the limits of the transfer of sovereign powers to the European Union can also be found, with modifications depending on the existence or non-existence of unamendable elements in the respective national constitutions, in the constitutional law of many other Member States of the European Union (cf. for instance for the Kingdom of Denmark: Hojesteret, Judgment of 6 April 1998 – I 361/1997 –, para. 9.8.; for the Republic of Estonia: Riigikohus, Judgment of 12 July 2012 – 3-4-1-6-12 –, sec. no. 128, 223; for the French Republic: Conseil  Constitutionnel, Decision no. 2006-540 DC of 27 July 2006, 19th recital; Decision no. 2011-631 DC of 9 June 2011, 45th recital; for Ireland: Supreme Court of Ireland, Crotty v. An Taoiseach <1987>, I.R. 713 <783>; S.P.U.C. (Ireland) Ltd. v. Grogan , <1989>, I.R. 753 <765>; for the Italian Republic: Corte Costituzionale, Decision no. 183/1973; Decision no. 168/1991; for the Republic of Latvia: Satversmes tiesa, Judgment of 7 April 2009 – 2008-35-01 –, sec. no. 17; for the Republic of Poland: Trybunal Konstytucyjny, Judgments of 11 May 2005 – K 18/04 –, n. 4.1., 10.2., of 24 November 2010 – K 32/09 –, n. 2.1. et seq.; of 16 November 2011 – SK 45/09 –, n. 2.4., 2.5., with further references; for the Kingdom of Sweden: Chapter 10 Art. 6 sentence 1, Form of government; for the Kingdom of Spain: Tribunal Constitucional, Declaration of 13 December 2004, DTC 1/2004; for the Czech Republic: Ústavni Soud, Judgment of 31 January 2012 – 2012/01/31 – Pl. ÚS 5/12 –, para. VII.)’[13]

18. This is just a representative sample of national judicial contestation of the Court of Justice’s claim. It does not include, for example, the Pham judgment of the United Kingdom Supreme Court, which follows similar lines, whereby it is held, albeit possibly obiter, that EU law will not be applied if it involves any ultra vires act by any EU Institution including the Court of Justice. [14]

19. The Court of Justice’s claim is further challenged by its being unclear whether the judiciary, be it Union or national, has a monopoly over this question.  It may well be that national political institutions, arguably acting collectively, have a claim to assert authority over this. There are three reasons for this.

20. The first lies in the Lisbon Treaty. Declaration 17 states that:

‘The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.’

On its face, this Declaration appears to reaffirm the position of the Court of Justice. However, if this were so, it begs the question as to why the Conference made the Declaration. A more plausible explanation is a belief that Member States (i.e. national governments) can pronounce on the authority of EU law, and they have chosen to do so to grant it this level of authority. This would explain why it is set out as a Declaration rather than a legal instrument as it does not subject that authority to make this claim to review by a court. It is also consistent with a difference between the Lisbon and Constitutional Treaties. With the Constitutional Treaty, primacy was included in the main text, formally granting the Court of Justice an authority to rule over it as the central court of that Treaty.[15] The amendment in this position by the Lisbon Treaty can only be explained by the Member States refusing to grant the Court that level of authority, preferring to hold it for themselves. 

21. The second goes to the position of the German Constitutional Court. It has identified the central basis for legislative authority in Germany as the democracy principle. It has argued from this, that other than where it has very specified powers, EU law cannot have authority without the informed consent of the German parliament. It is this consent which grants EU law authority.[16] This view seems to have been followed in practice by a large number of States. Seven other euro area States required parliamentary assent before they could ratify the third Greek bail-out. The United Kingdom has, moreover, followed the position of the German Constitutional Court in other fields of EU law.[17]

22. The position is highly messy. There is clearly an interest on the part of all States in resolving this question. Domestic legislative and judicial institutions clearly question the Court of Justice’s claims. If Declaration 17 shows readiness to agree to claims about the primacy of EU law, it is not clear that it was intended to resolve the matter definitively, however. It was before a series of judgments by constitutional courts around the Union questioning the unqualified nature of the Court of Justice’s claims,[18] and in circumstances where the intensity of Union action or its consequences was not fully anticipated in fields such as the euro, EU citizenship or EU migration and asylum policy. Public opinion is thus highly unsettled about how much authority should be enjoyed by EU law.[19]

Desirability

23. There are two reasons where the threat of implosion of the Union if primacy were revisited is overstated.

24. The first is Norway. Norway applies a lot of EU law within the context of the EEA. There is no primacy of EU or EEA law within Norway. However, the EFTA Surveillance Authority finds that transposition rates for Directives in Norway compare well, when looked at over a period of time, with EU States.[20] This is a good proxy for compliance as transposition involve the putting in place of a national legal regime which, in turn means that the State and other actors now bound by their own national law.

25. The second is to be found within the European Union. Most EU law is not directly effective and so cannot be invoked in national courts over national law. It has to be enforced through the infringement proceedings. If one looks at recent statistics, one finds that 44 cases were heard by the Court in 2014, of which the Commission won 41.[21] The majority of these originated in Commission own initiatives or complaints back in 2012. 1405 cases were entered into EU Pilot for that year.[22] Such cases are only entered by the Commission where it thinks there is a strong case to answer. In short, 3% of the cases where the Commission considered there was likely to be a breach of EU law resulted in a judgment and it won all of these. It is implausible to think there was strict adherence to EU law in all cases. There were, rather, negotiated settlements, which may well have taken a generous view of EU legal obligations. Nobody is saying that the Union ceased to exist because of that.

Denial of Benefits to Citizens from Other EU States for First Four years of Residence

26. The Government has insisted that amendment of the Treaties is necessary for this based on the conviction that such a restriction would violate Article 45 TFEU. Amendment of that provision could be done on the basis of the simplified revision procedure. It still carries risks as it will require the agreement of twenty seven other governments and parliaments. It is not clear that what will be forthcoming, or, more importantly, what would have to be offered in return for that support.

27. My own view of the law is that Treaty reform is unnecessary, and that the matter could be dealt with through amendment of the relevant secondary legislation and a Declaration by Heads of State (if necessary not all) on National Citizenship. My view is this for the following reasons.

28. First, whilst Article 45 TFEU clearly prohibits measures which result in a citizen losing accrued benefits through moving to another Member State,[23] the overwhelming thrust of the case law is that the grant of other benefits is governed by article 7(2) of Regulation 492/2011 rather than the Treaties,[24] with only case suggesting otherwise.[25] This legislation could be amended by Qualified Majority. Secondly, the existing case law applies to unilateral national measures rather than to measures authorised by EU legislation. It has less pertinent for the latter as the Court has indicated that the Union legislature has a leeway not enjoyed by national authorities.[26] Thirdly, any legislation could be based on the EU citizenship provisions which trump the economic freedoms.[27] Article 21(2) TFEU allows for limitations to be placed on free movement when done in the context of these provisions.

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect (my italics).

The current Citizenship Directive, Directive 2004/38/EC, indeed, discriminates between non-residents, residents and permanent residents in another Member States, and also between these three categories and a State’s own nationals.

29. Article 21(2) TFEU would, more importantly, also make it easier to relocate this legislation within a recast relationship between national citizenship and EU citizenship. This would have a lot of benefits as my own feeling is that the tensions generated by EU law go simply not to the questions of benefits, but wider questions prompted by issues of national citizenship. It is these issues which have driven support for restrictions on access to benefits.

30. The EU Treaties state that EU Citizenship ‘shall be additional to national citizenship and shall not replace it.’[28] This fits with the practice of many national constitutional courts, which have been resistant to EU law dislocating or disrupting national citizenship laws irrespective of its claims.[29] In its European Arrest Warrant judgment, the German Constitutional Court stated:

‘ …. the citizenship of the Union is a derived status which complements national citizenship (Article 17.1 sentence 2 of the Treaty establishing the European Community); this is upheld also in Article I-10.1 sentence 2 of the Treaty establishing a Constitution for Europe where it lays down that citizenship of the Union shall be additional to national citizenship and shall not replace it.[30] Correspondingly, the ban under European Community law on discrimination on grounds of citizenship is not laid down comprehensively but, in line with the principle of conferral, only for the objectives set out in the Treaty, in particular in the context of the fundamental liberties. This at the same time contributes to the Member States being able to preserve their own national identities (Article 6.3 of the Treaty on European Union), which find their expression in their respective fundamental political and constitutional structures..’[31]

31 The content of national citizenship has never been spelt out, however, in a manner that could act as a bulwark against the acts of the EU Institutions. It is proposed that this takes place in the Declaration which is reiterated in all relevant secondary EU legislation. If that is so, what is the content of national citizenship?  Modern academics accounts see citizenship as the grant of a number of membership entitlements in the form of civil, political and social rights to a State’s own nationals.[32] The last point is also reiterated in a number of member State constitutions or equivalent documents which recognise various welfare entitlements as a central part of citizenship.[33] There is furthermore a statement to this effect by the CJEU in Rottmann:

‘… it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.’[34]

Civil rights are, thus, only governed by EU law in limited fields, namely versus the EU Institutions or member States implementing EU law.[35] Political rights have a similarly tiered structure with EU citizens no right to vote in national elections but the possibility to vote in municipal and European Parliament elections.[36] It seems appropriate to set out a similar relationship for social rights (welfare entitlements) by stating that they are only to be granted by EU law to EU citizens resident in a host State where this is explicitly provided for by the Treaties or secondary legislation.

32. I would see the Declaration as being adopted both by national parliaments and national governments. It would have four parts.

33. The first would set out the importance of national citizenship and of domestic ownership of national citizenship. It would state that national citizenship is not merely a matter of national competence but integral to the identity of Member States.[37] It forms a central part of the constitutions of many Member States, and is thus central to national constitutional identities of these States. It is central to national democracy insofar as it provides an equal civic status between a State’s own nationals, which on the one hand establishes equal duties, and, on the other hand, establishes the rights whose guarantee legitimises public authority in a democracy.[38] It also establishes the special bond of solidarity between a State and its own nationals which both allows the State to impose special responsibilities on its own citizens and acts as the central basis for social justice within the European Union.[39]

34. The second would set out the content of national citizenship. This provides the link between, inter alia, welfare entitlements and both national ownership over citizenship and national identity. I would suggest something like this. Whilst constitutional and democratic traditions vary, across the European Union, constitutional (and national democratic) practice shows national citizenship to be anchored around three central commitments by a State to its own nationals based on their being a community of free and equals. These include the commitment to respect the civil liberties of citizens; the commitment to allow citizens to vote and stand for election in national and the commitment to provide welfare entitlements or social rights (depending on the national tradition) to their citizens. These three commitments lie at the heart of national constitutional democratic identities. I have kept this list limited, but other elements may be added (ie loss and acquisition of citizenship, special civic duties such as jury or military service).

35. The third paragraph would set out the relationship between EU law and national citizenship.  This paragraph is the most contentious in terms of challenging the authority of the CJEU but it will rooted in the statements of national constitutional courts that they can police the competences of the Union. The first element would repeat the statements of the CJEU that EU citizenship is a fundamental status granted to all Member State nationals which they acquire by virtue of their nationality. As such, other Treaty provisions and secondary legislation are merely an expression of that status but are to be interpreted in line with the principle of EU citizenship. They are not to undermine the balance between it and national citizenship. As such, they are subject to the limits placed on free movement and residence by EU citizenship. The second element would state that, in line with the reasoning of various national senior and constitutional courts who have variously described EU citizenship as additional to,[40] incidental of[41] and dependent [42] on national citizenship, EU citizenship is additional to and complements national citizenship. Accordingly, it is something which takes subject to it. The third element would state that, in accordance with this complementary status and the balance of powers, political rights and welfare entitlements are only to be provided to EU citizens from other member States where this is set out explicitly by national legislation, the EU Treaties or EU secondary legislation.[43]

36. The fourth paragraph would state the position in the first third paragraphs expresses the position on the relationship between EU and national citizenship as understood by a number of constitutional courts and the States adopting the Declaration. Any interpretation of EU law which does not respect this understanding would in the view of those adopting the Declaration not only be claiming a power for EU law beyond its competences but would be violating an institution, national citizenship, central to the constitutional and democratic identities of Member States. In such an event, the parties would call an IGC under Article 48 TEU to secure both a restatement of EU law in line with this Declaration and to examine the institutional implication of a failure to respect these limits.

37. I would argue for the following advantages of this approach.

38. It allows some anticipation of other sensitive issues which may arise beyond access to benefits. These might include matters such as prisoner voting rights, special deals to get young local people on the housing ladder, or issues on civil liberties or fundamental rights that are best seen as being addressed through national instruments.

39. It subverts the veto that Treaty reform requires and redraws the bargaining position of the parties. There is nothing which requires this Declaration to be adopted by all 28 States. If there was a Qualified Majority of States happy to adopt it (this would be necessary in any case for amendment of the secondary legislation), this would put a lot of pressure on the dissenting States. They would be faced with a position where de facto amendment takes place anyway through the combination of the Declaration and secondary legislation. Even if that is not so, they face an uphill battle at any subsequent IGC. Through this route, the United Kingdom might, thus, have much more control over the terms of any restriction on benefits than through simple Treaty reform.  

40. It enlists the support of national constitutional courts and makes a principled case, through use of their reasoning, which is not about zero sum games between States of origin and host States. Higher national courts are increasingly suspicious of CJEU activity in fields such as citizenship or fundamental rights.[44] Most notably, both the Court of Appeal (in R(G1))  and the Supreme Court (in Pham) have warned that they will check to see whether the CJEU is acting ultra vires in the field of citizenship.[45] Enlisting national constitutional courts not only increases the chances of the Declaration being enforced but also restricts the bargaining position of other States. Are Germany and Poland going to argue for positions for example which contradict the position of their respective constitutional court and tribunal on the limits of European integration?

41. It is likely to meet with less resistance from the Commission and the European Parliament. It allows them voice and does not imbalance the legislative process as amendments will still take place through the ordinary legislative procedure to the secondary legislation. Indeed, the Commission has more voice through this procedure than through the ordinary revision procedure for amending the Treaties as it formally would propose the amendments, whereas this would not be likely with the latter.

42. The final advantage, and this is why it is advantageous for the Declaration to involve national parliaments, is that it sends a clear message about who sets limits to the competences of the Union. Most citizens in the Union would set that this should be national institutions and that national parliaments should be able to do this to secure national democracy. Following the institutional machinery of the Treaties suggests that not to be the case. Symbolically, it could be important, and it could also follow with the agenda of involving national parliaments more within European integration.

43. As this is not a Treaty amendment, it could be argued that the Court of Justice may strike down amendments to the secondary legislation,[46] circumvent these through use of Article 21 or 45 TFEU,[47] or subject national citizenship to proportionality controls so as to limit restrictions on welfare entitlements.[48] I see all this as there are four locks in place.

44.  The Declaration would act, first, as an authoritative statement on the limits of EU competences. Parties are not interpreting a provision of EU law but making a good faith statement about the content of something, national citizenship, which is universally acknowledged as falling outside the Treaties. The second lock is the threat of an IGC if any EU Institution tries to break this understanding. This would be a significant threat if set out by a Qualified Majority of Member States. Restrictions on benefits would no longer be perceived as an isolated national position but would now be seen as the consensus with opponents the outliers. The threat is also not merely to rectify the law but also to deal with any institutional activism. The third lock is that that it is highly likely regard would be had to this Declaration by some senior national courts who would interpret the law accordingly. The Czech, British, Dutch and German courts have all talked about being willing to strike down ultra vires behaviour by the Court of Justice. The fields in question are also seen by the German, Czech and Polish constitutional courts as going to the heart of their constitutional identities, thereby providing another basis for review.[49] The fourth lock would lie in public opinion. This would be a public statement clearly seen and understood by those who are not legal experts. It is more accessible than Treaty amendments whereby knowledge of the Treaty context (ie its schema and surrounding interpretations) would have to be gained. An institution going against this understanding would be seen as doing something which goes against a clear document that acted as the basis for a referendum. This would count with public opinion not just in the United Kingdom but more broadly.

October 2015