The government talks about repatriation of EU powers. What does this actually mean, and could it work? The only solution the government seems to be able to offer to its braying backbenchers in light of last week’s debate on an EU referendum is to propose to repatriate powers to the UK from the EU. Cameron has this week urged the speeding up of work to determine how this could work, and has launched a broadside against Brussels putting the City of London under ‘constant attack’, while Ed Miliband pinned Cameron down on the issue of repatriation at PMQs. So is there actually any substance to Cameron’s bluster? This week’s column has a go at working that out.
Repatriation can occur in two ways: from the Treaties and from regular EU law. Repatriation could be symmetrical (i.e. powers return to all Member States) or asymmetrical (powers return only to the UK). The EU Treaties, most recently amended in Lisbon (hence the term Treaty of Lisbon), are the closest the EU has to constitutional law, and set out what the EU’s powers are. The Treaties total 389 pages and all Member States have to agree to any amendments. The Treaties are broken down into Titles, each of which covers a specific policy area – for example Title IX covers Employment, Title X covers Social Policy (see from Page 112 here).
The UK government would have two options for the reform here – to propose the watering down of the wording of a whole policy area (symmetrical), or to propose that a policy area, or parts of it, would simply not apply to the UK (asymmetrical). To achieve either of these would require complicated negotiations with other Member States. Watering down might be viable, while the opt-out of the UK from – for example – the entire Employment Title would never be acceptable to other Member States. Why would everyone else accept the UK’s race to the bottom on workers’ rights, when the UK would still demand free access to EU markets?
An alternative approach could be for the government to examine the 40000 or so pages of EU Law currently in existence, and determine which of those Directives and Regulations it thinks pose an unnecessary legislative burden on the UK. Most Directives and Regulations can be annulled by replacing them with an updated law, and to do that requires a Qualified Majority of Member States. There is some precedent for this sort of process with the deregulation of packaging sizes, and the Barroso Commission has an ongoing process to reduce red tape. Here too the government faces the symmetry problem – does it aim to eliminate the legislation it does not like, and for that to be eliminated for everyone? Or does it aim to exempt the UK from individual laws?
The conundrum here is the same as for Treaty change – a change for all EU Member States would be easier to deliver than something that carved out a special exemption for the UK. In essence we do not yet know enough of what lies behind the government’s statements to know what solutions they would propose. Do they want a deregulated EU, and are they willing to achieve that together with others? If so, with considerable effort, they might partially manage. Do they instead, in some sense, want to get one over on the EU, to show they can somehow win at others’ expense?
If so, then expect scant little sensible result.