The Grand Old Duke of York had nothing on the Prime Minister’s European “renegotiation”. The Prime Minister floated an “emergency brake” on free movement more than a year ago. But the proposal was quickly ditched, because, as the Financial Times said, the rules are supposed to deal with situations such as acts of war or volcanic eruptions, not the movement of fruit pickers from eastern Europe.
Instead, the Prime Minister moved on to another back-of-the-envelope wheeze, the four year ban on migrants receiving in-work benefits. This has led to the embarrassing spectacle of UK government Ministers and officials attempting to persuade other EU member states of the virtue of a proposal which is not only legally dubious, but which they themselves do not think would have any significant impact in practice. George Osborne made it obvious in his Today programme interview recently that neither he nor the Treasury think limiting migrants’ entitlement to in-work benefits will reduce EU migration much if at all, and any senior Whitehall official will tell you the same, off the record of course.
So, as the four year ban appears both difficult to achieve and unconvincing in practice, the “emergency brake” is back, reportedly this time at the initiative of Brussels. But how would it work in practice? There are three key issues:
- Under what conditions could the brake be activated? Most reports have said that the trigger would be an unacceptable degree of pressure on public services or the welfare system. But there is one obvious problem here. It is very hard to make the argument that current levels of migration would meet this criterion. After all, London schools are outperforming the rest of the country by miles, partly because of immigration. NHS waiting times are actually lower in areas with higher immigration. And EU migrants pay more into the welfare system than they take out. As for the labour market.. Crisis, what crisis? And if it doesn’t apply now, when would it? Forecasting migration flows is almost impossible, but if I had to guess I’d say that migration from the EU to the UK has probably peaked.
- Who would decide whether the conditions had been met for the brake to apply? It seems unlikely that other Member States would be happy for us to decide unilaterally; equally, that it would be acceptable for the UK government for control to be in the hands of the Commission or subject to a vote. The Telegraph suggeststhat the OECD, as an independent body, might be involved. This makes sense – the OECD is indeed the world’s leading centre of expertise on migration issues, and would adopt a strictly evidence-based approach– but for precisely this reason, it’s unlikely to appeal much to the UK government. After all, the OECD is fond of pointing out with facts and figures that migration is good for the UK economy, reduces the deficit, and that migrants to the UK are higher skilled than the native population. It would take a lot to persuade them there’s a problem here, let alone an “emergency”.
- Finally, there are some difficult practical questions about how it would operate. There is no question, presumably, of actually stopping EU citizens from entering the UK freely or requiring visas. So the “brake” would have to mean that either they could not work, or claim certain benefits. But to whom would this apply? Recent arrivals? But we have no record of how long EU citizens have been here, or indeed whether they have returned to their home countries. EU citizens taking up a new job? But what if they are just switching jobs? Or have returned home and are now returning here again (but will still have a National Insurance number). We’d presumably not want to stop all new arrivals from working, but would there be a quota?
No doubt some or all of these issues could be overcome with political will. But the fundamental problem still remains. As currently envisioned, the “emergency brake” is genuinely that. But there is no “emergency” and none in prospect, at least in the eyes of any rational observer. So it may be a useful piece of political theatre, but will remain unused and irrelevant for the foreseeable future. Could, however, it be something more? Of course – an “emergency brake” that could be activated now by the UK government, acting unilaterally or with relatively few constraints, would be a major step away from the principle of free movement. It remains to be seen whether that is on the table.
[Note: this blog is on the political economy of an “emergency brake”, not the legal position, which is undoubtedly equally complex]