The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Andrew Duff MEP [16]

I welcome the opportunity to give evidence on the European Union Bill which, as the Chairman says, raises issues of major constitutional significance for the United Kingdom. The Bill also raises significant questions about the evolving constitutional order of the European Union, and, naturally, about the future of the UK's membership of the EU.


The 'Sovereignty Clause' and the Status of EU law

1.  Clause 18 appears to underline the logic of the European Communities Act 1972 in the context of the new Treaty of Lisbon. At face value, this might be a useful and even necessary clarification.

2.  As long as the 1972 Act remains in force the UK remains beholden to uphold any new or amended EU Treaty. So long and in so far as the UK is a member of the EU it must respect the primacy of EU law in those matters where the states have agreed by treaty to confer competence on the Union. The Lisbon treaty sets out for the first time precisely what those competences are (Article 5 Treaty on European Union (TEU) and Articles 2, 3, 4, 5 & 6 Treaty on the Functioning of the European Union (TFEU)).

3.  Member states have some latitude in how they act to give material effect to the primacy of EU law and its direct effect or application. If, after Lisbon, the UK wishes to change the way it chooses to articulate the UK's compliance with the constraints and obligations which flow from its recognition of EU law, it may of course do so. But at the end of the day if the UK is not to put itself in breach of EU primary law it must conform in one way or another to the imperatives of all the legal acts of the EU and to the jurisprudence of the European Court of Justice (ECJ).

4.  Politicians and the press may take fright at the large corpus of EU law which can sometimes seem to dominate domestic law. EU law is certainly a new, separate and important legal order different from that of international or national law. But it is not correct, in my view, to see EU law as a 'higher autonomous legal order' but rather as the judicial and legislative expression of a federal level of authority in which neither the federal level nor the state level is allowed to dominate the other. Indeed, the Lisbon treaty expressly enjoins the Union to respect the national constitutions of its states (Article 4(2) TEU); and alerts one to the federal principles of sincere cooperation (Article 4(3) TEU), subsidiarity and proportionality (Article 5 TEU). Both EU and national law are held to be binding on both the Union and its states. The Lisbon treaty has not suddenly rendered the constitutional order of the EU hegemonic to the detriment of its states.

5.  There seems to be an implicit suspicion behind the drafting of the EU Bill that the transfer of larger competences to the Union and of greater powers to its institutions, as agreed under the new treaty, somehow departs from the traditional practice of pooling or sharing sovereignty in the common European interest and propels us instead towards a destination in which the transfer of sovereignty actually diminishes the British national interest. I do not share that assumption. Indeed, I welcome Lisbon as a genuine step forward in the good governance of Europe in which the respective roles of the state and federal authorities become more clearly defined (and therefore better protected) than ever before. Even national parliaments, which are said to 'contribute actively to the good functioning of the Union', gain enhanced status in the EU system (Article 12 TEU).

6.  Lisbon lays down that the states agree to 'confer competences [on the Union] to attain objectives they have in common' (Article 1 TEU). Where competences are not so conferred, they remain with the states (Article 4(1) TEU). 'The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties' and not by any other means (Article 3(6) TEU). The multifarious checks and balances built into the Lisbon treaty disallow a leaching of national competence to the EU without a further treaty change: see, for example, the very careful definitions of the scope and force of the Charter of Fundamental Rights or the limitations placed on the deployment of the simplified treaty revision procedure (Article 48(6) TEU). Illegitimate 'competence creep' will not be tolerated. Article 352 TFEU - the so-called 'flexibility clause' - is not about expanding the competences of the Union but about increasing the powers of its institutions '[I]f action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties ...'. Helpfully, Lisbon also sets out clearly what objectives the states hope to attain by dint of their membership of the Union and through the instrumentalisation of the Union (Article 3 (1-5) TEU).

7.  The government is therefore right, in my view, to claim that clause 18 of the Bill is declaratory only and does not alter the historic, existing or future relationship between the UK and the EU. 'The rights and obligations assumed by the UK on becoming a member of the EU remain intact'. So also do the rights and obligations of the EU in respect of the United Kingdom.

8.  That being said, there may well be occasions when the opinion of national constitutional authorities, including the House of Commons or the UK Supreme Court, will be found not to be in complete accord with the substance of EU law or the judgments of the ECJ. Such discordance is best dealt with in the federal manner by effective collaboration between the respective courts, executives and parliaments. In a trustworthy, democratic and decentralised order based on the rule of law - in other words, a federal construct ­ not all legal disputes of a constitutional nature need to be resolved definitively. (There is a certain flexibility in all good federations allowing room for pragmatic adjustment.) The EU institutions, which represent both the states and the citizens (Article 10 TEU), are bound between them to 'practice mutual sincere cooperation' (Article 13(2) TEU). And on the whole they do.

9.  The Court of Justice has powers to rule on disputes between states and among institutions and on actions brought by natural or legal persons (Article 19(3) TEU). Its only job is 'to ensure that in the interpretation and application of the Treaties the law is observed' (Article 19(1) TEU). It has no general juridical authority to intervene in national or domestic matters (although it may give preliminary rulings at the request of national courts). The EU has no general competence to do what it likes. The EU is a federal union of states and citizens and not a federal state, and the ECJ is not a federal supreme court. The EU Treaties are certainly analogous to the constitutions of the states but they are not the same.

10.  Clause 18 has therefore rightly avoided the risk that an over-elaborate preoccupation with national sovereignty would impose on the UK Supreme Court powers to arrogate to itself a claim of right to rule on ultra vires matters more properly left to the ECJ in Luxembourg. There are different and actually competing concepts of sovereignty, and the EU Treaties remain sensibly silent on the sovereignty question. All that matters is that the sovereign High Contracting Parties of the states 'establish among themselves a European Union' (Article 1 TEU).

11.   The establishment of the European Union is not irrevocable. Any state of the Union has always been able to secede from membership under the terms of the Vienna Convention on the Law of Treaties by taking a unilateral decision according to its own constitutional requirements. In the case of the UK, abrogation of membership would be achieved by the repeal of the European Communities Act 1972. Sensibly, the Lisbon treaty installed a mechanism for the orderly withdrawal from membership status and the negotiation of alternative arrangements between the states that go and those that stay (Article 50 TEU).

Restrictions on Treaties and Decisions relating to the EU

12.  The coalition government is apparently committed to opposing any EU treaty change during its term of office and the lifetime of the Parliament elected in May 2010. So we must assume that the measures the Bill seeks to introduce in this Parliament, irrelevant to itself, are intended to bind its successor. The Committee will understand better than me how this squares with the classical concept of parliamentary sovereignty in which no single act of one Parliament (not excluding the European Communities Act 1972) can bind its successor.

13.  A second paradox is that this Bill purports to uphold the sovereignty of the Westminster Parliament against the federalist forces of the European Union yet it does this by surrendering that very same sovereignty of the Westminster Parliament to the vagaries of a popular vote. I would merely register here in passing my distaste for the widespread resort to populist referendum campaigns as a substitute for more informed parliamentary deliberation. Exceptional referenda on regime change, domestic constitutional reform or on whether to join (or leave) the EU are one thing. But the imposition of systematic referenda on EU matters will in the end, and probably quite quickly, bore the public, trouble the markets, weaken the Westminster Parliament, divide the political parties - and infuriate our EU partners.

14.  The Bill proposes to instigate regular referenda within the UK on all manner of European questions. The government has not coordinated this move with its EU partners, none other of whom is intending to take the same route. Indeed, rather the contrary: France and the Netherlands retreated from the use of referenda after their experiences in 2005; other countries, such as Austria, Denmark and Ireland are desperate to avoid having to hold future EU referenda. (Ironically, and Ireland apart, the only issue on which there will be referenda in other EU countries is enlargement - a federal issue if ever there was one - but on which very question the Bill would seem to rule out referenda in Britain.) The UK is indeed the odd man out, and its unilateral move has placed all its partners in an invidious position when it comes to future treaty negotiations. This Bill may not be the wisest diplomatic move Britain has ever made.

15.  What is true, in the aftermath of Lisbon, is that other national parliaments have taken steps to strengthen scrutiny of their own government's performance in the European Council and Council of Ministers and to put in place more weighty parliamentary procedures than existed before when it comes to the ratification of certain specified provisions of the Treaty, including the use of some passerelle clauses. It is good that the UK Parliament is following this trend, although it is important to recall that mainland European countries already have in place entrenched constitutions which lay down precisely the checks and balances between executive and parliament and between government and opposition. Some, like the Federal Republic of Germany, also have clauses in those constitutions which commit the state to integration within the European Union. The new rules introduced in the Bundestag are intended to improve the democratic quality of Germany's contribution to the development of the EU, not to fortify the bastions of German national sovereignty.

16.  The Bill is drafted for domestic purposes by a government which is in charge of its own national agenda and whose European policy is to support the EU status quo and to oppose EU reform. No single European government, however, is so clearly in charge of the European agenda. And the status quo in Europe is an uncertain fixture. Like the man on the bicycle who falls off when he stops, the European Union has a dynamic of its own in which constitutional change, for one reason or another, is an almost constant feature. At the time of writing, one can already envisage seven treaty changes within the next few years, some more minor than others: the Czech and Irish Protocols to the Treaty of Lisbon, the addition of the 18 extra MEPs, the permanent loan facility for the eurozone, electoral reform of the European Parliament, and the accessions of Croatia and Iceland. Within the next two years the Union will have to address the big federal questions of the reform of the own resources system and the new multi-annual financial framework (Articles 311 and 312 TFEU, respectively). In parallel with those financial negotiations, work on installing a proper common European economic government will intensify: according to the provisions of the Bill such reforms would certainly trigger a referendum in the UK, as would moves to strengthen sanctions and penalties against states, not excluding the UK, which breach the excessive deficit procedure. The UK's self-exclusion from the eurozone and the Schengen Area are not cast-iron insurances against decisions being reached in the European Council or at an Intergovernmental Conference (IGC) which impact upon the UK.

17.  In any case, all treaty changes, whomsoever they primarily affect, will have to be agreed and ratified by all member states, including the UK. So the idea of there being a comfortable status quo in the EU on which Britain, insulated by its treaty opt-outs, can ride out the storm seems to me, at least, to be far-fetched. One may usefully recall here, too, that, according to the ordinary treaty revision procedure, the European Council can decide to open an IGC by simple majority vote and that the European Parliament can choose whether or not to prepare such an IGC by a constitutional Convention in which national parliaments take part (Article 48(3) TEU). Experience suggests that Conventions can develop an important dynamic of their own.

18.  Lack of clarity about when the UK will hold a referendum and when it will not is unlikely to help the EU reach consensus in sensitive areas of treaty change in particular under the simplified revision procedure (Article 48(6) TEU). It is likely that the terms of the Bill will be put to the test in the course of 2011 when a modest treaty change to cope with the problem of sovereign debt default will be made to either Article 122 or Article 136 TFEU. Particular attention, therefore, should be paid by the Committee in this regard to the government's interpretation of Clause 4(1)(d), (e) and (f)(i), as well as of Clause 4(4)(b) on a treaty change that applies ostensibly only to other states.

19.  One aspect of the Bill which seems particularly odd from a government which purports to want to foster its membership of the European Union is the provision under Clause 6(4)(i) whereby a referendum will be needed if the UK decides to participate in an enhanced cooperation with other states in a particular area of single market policy, such as EU patents. (The Lisbon treaty makes it clear that the very purpose of enhanced cooperation in such cases is to change the unanimous voting rule in the Council to QMV.)

20.  Another curiosity is the insistence on having referenda even in those instances where the Lisbon treaty already provides for a passerelle clause to be triggered by a unanimous decision of the European Council and then subject to the unilateral right of veto of a single national parliament (Articles 48(7) TEU and 81(3) TFEU). The superimposition of a uniquely British referendum is typical of a British tendency, frequently criticised by the Scrutiny Committee, to ornament EU law when transposing it into the domestic context.

21.  Under all these scenarios, the British public will be invited to vote down an Act of Parliament endorsing a decision by the government of the day to participate in a positive move towards the attainment of an objective of the European Union to which the UK is committed by treaty. To say the least, the legal and political situation is likely to become surreal. The prospect of a confused referendum campaign won by a facile coalition of nay-sayers on a low turnout, with adverse reaction in the financial markets and a final loss of confidence in government and parliament becomes all too probable.

22.  One recalls that it was largely to escape from the British 'red lines' that the Lisbon treaty facilitates enhanced cooperation between a core group of like-minded states. In some cases, as in criminal law, the passage to enhanced cooperation is automatic once nine integrationist states find themselves frustrated by others (Articles 82(3) and (83(3) TFEU). In other cases, the decision by a core group to go ahead and leave others behind will not be able to be stopped by this UK government or any other: with the exception of common foreign and security policy, the decision to move to enhanced cooperation is taken by QMV (Article 329 TFEU).

23.  Many of the instances cited in Schedule 1 where a referendum would be needed under the terms of the Bill are highly unlikely ever to be subject to treaty amendment. Nevertheless there remain a number of issues mentioned here above where treaty revision or the use of a passerelle or of enhanced cooperation will sooner or later inevitably be sought by Britain's EU partners and where the threat of a referendum in the UK will be distinctly unhelpful to the good management of already complex negotiations.

24.  The enactment of this Bill will greatly increase the number of ministerial statements and parliamentary acts which will need to find their place in the parliamentary timetable. That is primarily a problem for the Westminster Parliament to resolve, but, even in the absence of referenda, the impact of delay to the EU's legislative processes caused by these proposed changes in British domestic procedures should be acknowledged. The protracted ratification of the Lisbon treaty is still fresh in the memory and an additional cause for another slowdown in EU decision making will not be popular.

25.  Presumably it is not the intention of the government to destabilise the European Union by fundamentally and unilaterally altering the terms of British membership. Nor can it be the purpose of this Bill to hobble all future governments in their dealings with the EU. But the Bill is nakedly constitutional in its character and intention. It alters the balance between the British people and Parliament at Westminster, as well as between Parliament and Government. It accentuates British exceptionalism in the European Union, making the UK a less accommodating partner, and therefore inevitably tempting other EU states to loosen the ties that bind them with the UK. Because of its constitutional nature one is drawn to wonder what set of circumstances would need to prevail for a repeal of this EU Act to be possible.

26.  Nobody would deny that Parliament is right to seek to take a tighter grip on the government's conduct of EU affairs. But one may question whether the prescriptions made in this Bill are not too ponderous in their construction, too wide in their scope and too uncertain in their consequences for the long term to be sure it is the right course to take. All in all, I find it difficult, even as a loyal foot-soldier of the coalition, to support this Bill, which where it is right adds nothing much new and where it is wrong pitches the UK into the realm of privileged partnership with the European Union, no longer a full member state - less at the heart of Europe than a torn limb. In the best spirit of coalition politics, we could live without it.

16   Andrew Duff MEP is spokesman on constitutional affairs for the Alliance of Liberals and Democrats for Europe (ALDE). He was a member of the Convention on the Charter of Fundamental Rights and of the Convention on the Future of Europe. He represented the European Parliament in the Intergovernmental Conference which drafted the Treaty of Lisbon.  Back

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Prepared 13 January 2011