Where have Cameron's promised reforms to EU membership gone?

The foundations were non-existent for the prime minister's red card and emergency brake on benefits policies, writes Thom Brooks

It is fair to say that the 'debate' on Brexit has produced more heat than light. Each side has its share of gimmickry that most of us could have done without.

Yet there is an elephant in the room - not the effects of Brexit on trade or immigration, but the prime minister's proposed reforms. Remember them?

David Cameron never wanted this to be a vote for or against Britain's existing arrangement with Brussels. From the first announcement, before the last general election, the referendum was always to be a vote about accepting or rejecting a reformed EU shaped by Cameron's hand; this was every bit as much about his political legacy as it was our relationship with Europe.

Cameron was to introduce reforms on several fronts. Some are less controversial - like reducing red tape where possible to improve economic efficiencies and competitiveness. But others are so complex it is mindboggling that they were thought of as vote winners in the first place. Let us consider two.

A good start is his proposal for a 'red card', which would allow Britain to veto EU laws subject to enough other member states rejecting the law.

We now know that is not quite how it is to work. If an EU member state wants to block any new 'draft Union legislative act' - this is the typical elegant phrasing in Cameron's proposals - then within 12 weeks there must be 'more than 55 per cent of the votes allocated to the national parliaments' in favour of stopping it. This would require Britain to win the support of some populous countries or several smaller states to get proposed legislation stopped without much time to act.

But that is not all: the European Council would then consider 'the reasoned opinions' offered by national parliaments for issuing a red card against the legislative act. A vote by several countries against a bill is not enough - they must also offer reasons for their decisions.

Cameron's proposal continues: '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 opinion'. This means a red card may not send players off the pitch. If the Council, in its view, can accommodate objections by national parliaments, then bills remain very much alive and kicking. And that is in the unlikely event any red card is triggered.

Confusing? Now consider benefits for EU migrants. While Cameron had pushed for a ban on benefits for four years, this is not in the proposal agreed to by the Council. To impose a so-called 'emergency brake', Britain must provide some 'objective considerations' that are 'independent of the nationality of the persons concerned'. These must demonstrate a 'risk of seriously undermining the sustainability of social security systems' in some 'exceptional magnitude over an extended period of time'. What counts as 'seriously undermining' or 'exceptional magnitude' is unspecified.

Notably, the facts and figures used to support these objective considerations must relate to the impacts of EU migration - and not non-EU citizens. This is because considerations must focus squarely on the impacts of 'workers from other member states'. Providing evidence that migrants collectively have an 'exceptional' and 'serious'
impact appears insufficient.
Still with me?

Britain must then make its case to the EU - and only then can the Council choose to authorise the UK 'by means of an implementing act' to introduce restricted access for EU citizens to in-work benefits. There is more.

Benefits can only be restricted for EU migrants 'to the extent necessary… for a total period of up to four years' in a graduated manner. This means any brake may be for much less than four years and the restricted access to benefits relaxes over time. Cameron's emergency brake is a brake that does not bring any car to a standstill and is applied by anyone but the driver.

I do not know what is more surprising: the fact Cameron said that, if Britain was not already in the EU, he would have voted to join on these terms, or the truth that these proposals may be rejected by the EU parliament and so never become implemented, even if they did carry a majority for Remain.

It speaks volumes that these carefully negotiated terms, meant to form a central part of the government's backing for Remain, have all but disappeared the closer we get to the fateful date in June. Perhaps the referendum was always to be a vote on Britain's existing relationship with Europe. It also sends a warning that complexity might characterise our world in law, commerce, and so many areas, but these reforms show the elephants' graveyard that awaits introducing such complexity to election decisions.

Thom Brooks is professor of law and government at Durham University. Brooks is also the author of Becoming British @thom_brooks thombrooks.info