The 'Emergency Brake' in Spotlight
On 19 February 2016 European leaders agreed a package of changes to EU rules. This agreement is effectively the result of the Prime Minister's renegotiation on the UK's membership of the EU. The deal will take effect only if the UK votes to remain in the EU. Presupposing that the UK will remain a member of the EU, the exact impact of the numerous agreements has been hotly debated. A number of agreed changes and their availability are open to varying interpretations.
As a further complication, it ought to be noted that the reached agreement is not the final product of the negotiations. The most significant changes and proposed mechanisms inevitably require the EU law to be amended. The EU law can only be amended in cooperation with and as mandated by the Member States. This is a legally and politically complex process. The agreed proposal would need to be approved by the European Parliament, which was not a party to the renegotiations with the European leaders. Only the brave would take an approval by the European Parliament for granted. Still, the changes approved by the European Parliament would have to be compatible with the EU Treaties, as they cannot be amended simply by the 19 February agreement. Should incompatibilities emerge, the agreement would most probably head to the EU court.
One of the most significant outcomes of the negotiations was the so-called 'emergency brake', officially the 'alert and safeguard' mechanism, on benefits. This mechanism would allow the UK or any member state to limit access to in-work benefits for new EU immigrants.
What is the rule?
Currently, migrants coming to the UK get instant access to public services. The Government is of the view that the 'emergency brake' package will ensure better control of movement of people into the country by reducing the desire to come to the UK.
Under the proposal, the UK could notify EU authorities that it has experienced an inflow of workers of "exceptional magnitude" over "an extended period of time" and that the size of the inflow affects "essential aspects of its social security system." Alternatively, the UK could claim that the inflow of workers is leading to serious difficulties in its employment market or putting "excessive pressure" on public services. The EU authorities then might or might not authorize the UK to restrict in-work benefits for new migrant workers. The benefits could be restricted for the maximum duration of four years after commencing work in the UK and would apply to EU workers newly arriving during a period of 7 years. Instead of the full payments, the workers caught by the brake would be entitled to gradually increasing payments over time, reaching the national standard at the end of the four-year period. The UK government cannot apply to impose the restrictions to immigrants already working in the UK.
Criticism of the 'emergency brake' has largely focused on the two main facts that it will never be able to yield results and that it focuses on the wrong issue. Tory MP David Davis argues that the whole concept of the 'emergency brake' proposal is flawed as the main pull factor for migrants is not the benefits, but the wages. "[Migrants] can readily earn three to four times as much working in low-skilled jobs in Britain. No amount of tinkering with our welfare rules will make a blind bit of difference to immigration numbers."
However, under the current EU rules it is nearly impossible to make changes to the laws governing the rights of EU citizens to enter the UK or to set a fixed cap on the number of immigrant workers. The EU Treaties guarantee the free movement of people, including workers and their right to social welfare in the country where they work. As a member of the EU the UK would not be allowed to instate any direct barriers for the free movement of people, merely to qualify it within the parameters of the EU Treaties.