Select Committee on European Scrutiny Fourteenth Report


The Government's 'red lines'

96. As the Foreign Secretary explained in his preface to the 2004 White Paper on the Constitutional Treaty,[148] the 2003 White Paper set out a 'series of specific commitments by which the Government would be bound during the negotiations. Many of these became known as the UK's "red lines" '.[149] The 2003 White Paper stated that:

'we will insist that unanimity remain for Treaty change; and in other areas of vital national interest such as tax, social security, defence, key areas of criminal procedural law and the system of own resources (the EU's revenue-raising mechanism). Unanimity must remain the general rule for CFSP.' [150]

Taxation

97. The 2003 White Paper indicated that the Government would insist that tax matters continued to be decided by unanimity.[151] The 2004 White Paper stated that this commitment 'has been delivered upon' and that the proposals made by the Convention that certain aspects of indirect and company taxation could be adopted by QMV had been deleted.[152]

98. The outcome of the IGC has been the provision in Article III-171, which is similar to the existing Article 93 EC. It provides for the harmonisation of laws relating to indirect taxation, 'provided that such harmonisation is necessary to ensure the establishment and functioning of the internal market and to avoid distortion of competition', and that such decisions shall be by unanimity. The Constitutional Treaty contains no provisions along the lines of those in the Convention text which would have provided for QMV for measures relating to administrative cooperation or to combating tax fraud and evasion.[153] (There are no provisions either in the existing Treaties or the Constitutional Treaty which provide any express basis for the harmonisation of direct taxation.)

Own Resources

99. The Convention's text provided for QMV for questions concerning the 'modalities' relating to the Union's resources.[154] The meaning of 'modalities' and hence the scope for QMV was not clear. This expression has been deleted from Article I-54(4), which provides instead for the adoption of 'implementing measures of the Union's own resources system insofar as this is provided for in the European law adopted on the basis of paragraph 3'. Article I-54(3) provides for unanimity for provisions relating to the system of own resources (as does Article 269 EC at present). The Government's Commentary concludes (in our view correctly) that any implementing measure adopted by QMV must first have been authorised by unanimity, with the consequence that the UK's budget rebate could not be changed without its consent.[155]

Social security

100. The 2003 White Paper indicated that the Government would insist that unanimity remain for social security,[156] and the 2004 White Paper states that the Government has met its commitment in this area.[157]  Apart from measures relating to migrant workers, this is the case.  The White Paper also refers to the 'emergency brake'[158] (in Article III-136(2)), which it describes as a 'mechanism allowing any Member State to refer a proposed law to the European Council, for decision by consensus, where a measure affects fundamental aspects of its social security system, including its cost, scope or financial structure', and concludes that 'This ensures that the UK cannot be forced to sign up to any measure that would adversely affect its social security system'.

Criminal justice

101. The 2003 White Paper stated that the Government would insist that unanimity was maintained for 'key areas of criminal procedural law' and that it believed that QMV 'would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned'.[159] The 2004 White Paper states that 'this commitment has been delivered upon'.[160]

102. Although Article III-270 provides for the adoption of minimum rules for criminal procedure by QMV and co-decision with the European Parliament, and Article III-271 provides for the same procedure in relation to the adoption of minimum rules concerning the definition of criminal offences and sentences, in both cases there is an 'emergency brake'.  This allows for a Member State to refer a matter to the European Council for a decision through unanimity.

Treaty revision

103. The Convention proposed at one stage to allow certain changes to the Constitutional Treaty after its entry into force by means of a 'simplified revision procedure', which would not require ratification by every Member State. As agreed by the IGC, the Treaty provides only that decisions on matters covered in Part III of the Treaty can be moved from unanimity to QMV, and from special legislative procedure to co-decision, by the European Council acting unanimously (Article IV-444)—the so-called 'passerelle' clause. The safeguard inserted by the IGC was that if a single national parliament objects to such a decision within six months of being notified, the decision will not be adopted. We strongly oppose the passerelle clause, but accept that the national veto provided is an adequate safeguard.

Conclusion on the 'red lines'

104. It is clear that the Government's 'red line' has been held in relation to taxation, Own Resources and Treaty revision.  With regard to social security and criminal law the 'red line' has been maintained through the 'emergency brake' mechanism.


148   Cm 6309, p. 5. Back

149   The origin of this expression is not explained, but it appears to evoke the spirit of Kipling's 'thin red line of 'eroes, when the drums begin to roll'. Back

150   A Constitutional Treaty for the EU: the British approach to the European Union Intergovernmental Conference 2003, Cm 5934 (September 2003), para 66. Back

151   Ibid., para 76. Back

152   Cm 6309, para 63.  Back

153   Cm 5897, Articles III-62(2) and 63. Back

154   Cm 5897, Article 53(4).  Back

155   Treaty establishing a Constitution for Europe: Commentary, Cm 6459 (January 2005), pp. 47-8. Back

156   Cm 5394, para 66. Back

157   Cm 6309, para 64. Back

158   See paras 105-120 below. Back

159   Cm 5934, paras 66, 83. Back

160   Cm 6309, para 68. Back


 
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