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.
EUROPEAN UNION
BILL
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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