Cameron is over-complicating the EU referendum – Labour must argue to stay in despite his reforms

The starting gun is fired launching the referendum campaign over whether Britain is to ‘Remain’ or ‘Leave’ the European Union. We knew this vote will happen by 2017, but not yet much of the detail – until now.

Prime Minister David Cameron wants the British public to vote not merely on whether the UK should remain in the EU, but remain on terms that Cameron has forced the EU to adopt. This referendum – in his eyes – is every bit a referendum about his ability to bring fundamental change to Brussels as it is about the #UKinEU. Cameron will be campaigning as much for his legacy as a vote to stay in.

Cameron deserves credit for forging a set of changes that will get a hearing later this month. Many thought it impossible to get even this far – and this first-step is another sign that Cameron is looking as much to the history books as the polling day. This is all the more remarkable when you consider the financial crisis some EU countries still face and the on-going EU migration crisis that continues to grow.

We knew that Cameron was going to push on four fronts. He wanted to remove Britain from safeguarding British interests from the Eurozone and a commitment to reduce red tape in Brussels to improve economic competitiveness. But it is two other measures – on Britain getting a ‘red card’ on EU laws it does not want to boost national sovereignty and an ‘emergency brake’ on benefits for EU migrants that take centre-stage. And the devil is very much in the Eurocratic details.

The current draft decision to be agreed with the other 27 EU leaders is complex and full nuances. Let’s start with the so-called ‘red card’. It was first believed this would allow a veto on EU laws subject to enough member states supporting it. We now know that is not quite how it works. The draft decision says that if EU member states want to block a new ‘draft Union legislative act’ (welcome to how English is rendered in Eurocrat-ese) then in only 12 weeks there must be ‘more than 55% of the votes allocated to the national Parliaments’ in favour of stopping it. So either Britain must win the support of some populous countries or several smaller states to get this through in not much time.

But there is more. The European Council then considers any such block on draft Union legislative acts from ‘the reasoned opinions’ offered by national parliaments for stopping it. So a vote against by several countries not enough – they must also offer reasons for their decisions. Crucially, the draft decision concludes: ‘the representatives of the Member States acting in their capacity as members of the Council will discontinue the consideration of the draft legislative act in question unless the draft is amended to accommodate the concerns expressed in the reasoned opinions’. Now in plain English: once the Council has the reasons for blocking a EU law, it is also dead in its tracks if no further changes are made. If the Council chooses to amend it in response ‘to accommodate the concerns expressed’, then the EU law becomes, well, EU law. So Cameron’s red card doesn’t always get players off the pitch – even in the unlikely event that it is triggered.

Confused yet? Now let’s look at benefits for EU migrants. We were told in advance that Cameron was pushing for no benefits over four years. But that’s not the agreement.

This is the proposal for limiting benefits – and see how far you can follow it. Britain must provide ‘objective considerations’ that are ‘independent of the nationality of the persons concerned’ demonstrating a ‘risk of seriously undermining the sustainability of social security systems’ that must be ‘an exceptional magnitude over an extended period of time’. It is worth noting that what counts as ‘seriously undermining’ and ‘exceptional magnitude’ may be in the eyes of the beholders.

These facts and figures must relate to the impacts of EU migration – and not non-EU migrants from outside Europe – because it must speak to the impacts of ‘workers from other Member States’. So showing that migrants have an impact is too vague to be useful for this purpose. Still with me?

The UK must notify the European Commission and the Council with its facts and figures for why ‘such an exceptional situation exists’ impacting specifically on ‘essential aspects of its social security system’, including in-work benefits. The Council can then choose to authorise Britain ‘by means of an implementing act’ to restrict access to in-work benefits. In sum, the UK cannot pull the emergency brake without the approval of the EU first – and the conditions that could warrant it are specified narrowly. And there is more.

Benefits can only be restricted for EU migrants ‘to the extent necessary…for a total period of up to four years’. This means that if a brake is approved then it will last for a temporary time up to four years – and possibly much less. Oh, subject to a final qualification: that the restriction on benefits is ‘graduated’ so that the longer a migrant is in the UK, the more he or she can begin claiming something until the brake ends or four years is up. Got it?

Now for some of us – like me – we don’t need complex deals like this to support a ‘Remain’ vote. (And I admit some measure of responsibility for convincing the Electoral Commission that it should be a Remain or Leave vote rather than yes or no – and I am quoted in their final report.) My concern is that if the referendum is seen as a verdict on complex, nuanced proposals like this in the convoluted language familiar to lawyers and academics than Cameron will have a struggle on his hands getting the public to see a Remain as symbolically a vote for his remaining somewhere lofty in our future history books.

My advice for Labour is to pitch the Remain campaign as a vote for inclusion in the EU – despite Cameron’s reforms. The less this is about Cameron’s complex web of a gimmick (likely to do little or nothing to deter EU migration anyway), the better the chances of Remain winning the day and the more Labour – and not Cameron – can take credit for the victory. But we’ve got a long way to go first – and I fear things could even more confusing once Cameron’s deal is negotiated further.

Thom Brooks is Professor of Law and Government at Durham University, Visiting Fellow at Yale Law School and Communications Lead for Phil Wilson MP. His new book, Becoming British: UK Citizenship Examined, is published by Biteback this month.