The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written Evidence from Simon Hix, Professor of European and Comparative Politics London School of Economics and Political Science

1.  While I am sometimes portrayed in the British press as a "Euro-federalist" this is in fact incorrect. I have always been highly critical of the EU, particularly the lack of democratic accountability of the institutions in Brussels, and because of these views I have been described in some other European countries as a "typical British Eurosceptic". I prefer to think of myself as a democrat, a political scientist, and a critical pro-European. For a more detailed discussion of my views I refer the committee to my book What's Wrong with the European Union and How to Fix It (Polity Press, 2008).

2.  I believe the EU is in crisis. This is not only a crisis of the Euro, resulting from the banking and sovereign debt crisis. It is a deeper malaise, resulting from growing nationalism in Europe, the lack of accountability of the EU institutions, the gradual decline of Europe's influence on the world, growing threats to the single market and the "four freedoms", and the lack of national and European leadership to address the new economic and political challenges facing our continent.

3.  In historical terms the EU is a remarkable achievement. In a relatively short space of time we have created a supranational polity to govern a continental-scale market. A market does not create and govern itself; it requires rules and standards, and these need to be agreed by political institutions. Hence, a degree of "political integration", with some delegation to a supranational executive and some majoritarian decision-making (with checks-and-balances), is a price worth paying to create and sustain a continental-scale market. Most EU citizens take for granted the economic, social, employment, consumption, travel, educational, and other freedoms and opportunities we now have as a result of economic and political integration in Europe. If the EU collapses, and I genuinely fear that this is a possibility, this would be a disaster of historic proportions for Britain. Britain should be taking a lead in thinking about how to make the EU work more effectively and more accountably, which are the joint challenges in the coming years. It is in this light that I view the proposed EU bill.

4.  In general, I welcome the overarching aims of the bill, which I see as threefold:

(1)  to reconcile our constitutional principles with political and economic integration in Europe;

(2)  to make the EU more accountable in Britain; and

(3)  to constrain the hands of our officials and ministers who negotiate on our behalf in Brussels. However, I am not convinced of the value of several aspects of the bill, particular the provisions of Clauses 4 and 6. I also believe that two significant issues are missing in the bill: one relating to enlargement, and the other relating to the transparency of the actions of our civil servants and ministers when making decisions in the EU Council.

5.  Starting with British constitutional principles, I believe that there has not been sufficient public debate in Britain about how European integration relates to our basic democratic constitutional principles and practices. This debate has taken place in several other countries, including Germany, France, Italy, Ireland, Sweden and Denmark, and public understanding of the EU in these countries is far higher than in the UK as a result. In Britain, for too long we have laboured under the illusion that "economic integration" and "political integration" can be separated, and that whereas we democratically agreed—in the European Communities Act 1972 and in the membership referendum in 1975—to economic integration, political integration has proceeded surreptitiously, either via the actions of unaccountable bureaucrats and politicians in Brussels or by our own governments acting against the views of the people. British politicians from all the main political parties and editors of our national newspapers and other opinion leaders have maintained the fiction that economic and political integration can be separated. Almost no-one has bothered explaining that economic integration is impossible without a certain degree of political integration, such as agenda-setting power by the Commission, majority voting in the Council, more powers for the European Parliament (to hold the Commission and the majority in the Council to account), more powers for the European Court of Justice (for enforcing economic rules), and some common economic, social and environmental standards. One only needs to read the debate in the House of Commons before the vote on the amendment to the 1972 act to ratify the Single European Act to see how the economic elements of the treaty were emphasised in the debate by the (Conservative) government while the political aspects were largely denied. So, if the EU bill promotes a more honest debate and understanding amongst the British political establishment about what the EU is and why it exists, and how it can and should be reconciled with our constitutional principles, then this would be positive.

6.  At first glance there appears to be a contradiction in the bill: between the principle of parliamentary sovereignty, which the bill seeks to reiterate, and the proposal that certain treaty reforms or EU decisions should require a referendum. I do not believe that there is a contradiction. The reason is that I do not believe that parliamentary sovereignty is a fundamental principle of the British constitution. This principle is a relatively recent creation, promoted by A.V. Dicey and others just over a century ago primarily for political convenience. As soon as it became politically convenient to abandon the principle, many of these early constitutional scholars did so—as Dicey himself did in his call for a referendum on the Irish Home Rule bill in 1913-14. My reading of British constitutional history is that the much deeper English and Scottish constitutional principle is that sovereignty ultimately resides with the people, and it is this Anglo tradition which informed the founders of the United States constitution and other democratic constitutions round the world. In this view, a particularly majority in a parliament (which in practice is usually only an electoral plurality) can only exercise power which has been temporarily delegated to it by the people. For similarly sceptical perspectives on the notion of parliamentary sovereignty in British constitutional history I refer the committee to the recent books by two highly-regarded political scientists of Britain's constitution: Vernon Bogdanor, The New British Constitution (Hart, 2009); and Iain McLean, What's Wrong with the British Constitution (Oxford, 2009).

7.  From this view of British constitutional principles, it is entirely appropriate that there should be a referendum on any fundamental shift in political authority from London (or Edinburgh, for that matter) to Brussels. This is consistent with the constitutional practice that has been established in Britain over the last 40 years, with the referendum on EU membership in 1975 and the referendums on devolution to Scotland and Wales in 1979 and 1997.

8.  The question of what would constitute "a fundamental shift in political authority from London to Brussels" is more difficult, however. In this category I would certainly put the Treaty of Rome, the Single European Act, the Maastricht Treaty, the Amsterdam Treaty, the Nice Treaty, the draft Treaty establishing a Constitution for Europe, the Lisbon Treaty, any future decision on British membership of the single currency, and any future major reform of the EU treaties, as a result of an Intergovernmental Conference. In other words, I see no problem with Clause 2 in the Bill.

9.  Clauses 4 and 6 are more contentious, however. On the one hand, any new policy competence for the EU, or any shift from unanimity to qualified-majority voting in the Council, or any movement from a special legislative procedure to the normal legislative procedure, could be conceived as a "shift in political authority" from London to Brussels, or a shift from intergovernmental decision-making procedures to (quasi-federal) supranational decision-making procedures. In practical terms, however, I do not consider most of the issues listed under these clauses as individually significant enough to be described as a fundamental shift in political authority (with the possible exception of the provisions on border controls in the Schengen Protocal). In my opinion, on most of these issues it would be sufficient to guarantee more accountable decision-making by our delegates in the Council (in COREPER and in the minsters' meetings) to require that an act of parliament is need for these decisions (as set out in Clauses 7 and 8), rather than a referendum or an act of parliament as well as a referendum.

10.  Nevertheless, I am sympathetic to the notion that a higher constitutional threshold than a simple parliamentary majority would be desirable for Britain to agree to any of the changes listed in Clauses 4 and 6. If a government of the day is in favour of any such change and commands a majority of seats in the Commons, then it would be very easy for the government to push through an act of parliament to allow it to vote for a proposed reform in the EU Council. However, there are alternatives to a referendum. In particular, it would be possible to require an act of parliament on the issues listed in Clauses 4 and 6 to be passed by a two-thirds majority of the Commons. Such an "oversized majority" is required in many democracies for parliamentary acts that have constitutional implications, since a higher threshold guarantees that any such act cannot be passed without broad political consensus. A similar provision could be used under Clauses 4 and 6, as has been proposed by Iain McLean for other decisions of the House of Commons that have constitutional implications (see the book mentioned in 6, above).

11.  In addition, requiring a two-thirds majority in the House of Commons is far more practical than requiring a referendum on such low-salience issues, as turnout in any such referendum would inevitably be very low, and it would be virtually impossible to restrict a referendum to the specific technical issue under discussion and not turn into a broader referendum on British membership of the EU. In short, I simply cannot imagine a referendum being held on any of the issues listed under Clause 4(1) or Clause 6(4). So, rather than mandating something that could never in practice happen, surely it would be much better to introduce a constraint which is entirely feasible, such as a higher decision-making threshold in the Commons.

12.  Related to this issue, increasing the constraints on British officials in COREPER and our ministers in the Council when making decisions can, under certain conditions, strengthen the hand of our delegates in negotiations. The theoretical reasoning behind this logic has existed in political science for some time: what Thomas Schelling in 1960 called the "paradox of weakness". The idea, here, is that if there are significant domestic constraints on a government in international negotiations, then the government can credibly threaten that an agreement will be rejected domestically if they do not gain sufficiently in the negotiations. As a result, the greater the constraints on domestic governments in EU negotiations, the more they are likely to gain in bargains that have to be reached unanimously. There is considerable empirical evidence in support of this proposition in research on EU budgetary bargains and also on negotiations in IGCs on treaty reforms. For example, it is widely claimed that the positions of Britain and France were strengthened in the negotiations on the draft Constitutional Treaty after these two states announced that they would hold referendums on the outcome of the IGC.

13.  Nevertheless, high domestic constraints can only strengthen the hands of our officials and ministers if, first, these constraints are credible and, second, if there are no alternatives for the other member states to act without the UK. This is the case with most major treaty reforms, when a large number of member states would face similarly high domestic constraints, and so could not countenance moving ahead without the UK. Hence, where major treaty reforms are concerned, requiring a referendum is a credible threat and so is likely to strengthen the hand of British negotiators, as well as provide a firmer constitutional foundation in Britain for these collective decisions.

14.  This is not the case with the less significant and specific issues listed under Clauses 4 and 6, since on most of these issues there are alternatives for the other member states. If a British government is required to pass an act of parliament and a referendum before agreeing to one of these provisions, the other member states will assume that this is not in fact a credible threat, as a referendum in Britain is highly unlikely on a detailed technical issue. For example, under Clause 8(4)(g), there would need to be a referendum on whether an EU carbon tax should be adopted by a special legislative procedure or the ordinary legislative procedure—which seems faintly absurd to me, and will no doubt be seen as absurd by large sections of the British press and public!

15.  As a result, I expect one of two likely outcomes if the bill is passed with these clauses unamended. First, if a government is in favour of supporting an EU decision on one of the issues listed in Clauses 4 and 6 but is fearful of a referendum, then it would not be too difficult for the government to amend the particular sub-clause, for example to move the issue from Clause 6 to Clause 7. This might provoke some consternation in the press and debate in the Commons. But, given the low salience of many of these provisions, very few people would pay attention to any such move. If this scenario is likely, then the other member states will assume that the provisions in Clauses 4 and 6 are not credible, and so can safely ignore any threats from the UK. In contrast, if a two-thirds majority is required in the House of Commons, this would be a credible hurdle which would be difficult for a British government to obtain, and so would strengthen the hand of British negotiators.

16.  Second, however, if a British government is unwilling or unable to make such ad hoc changes to the act, and so is forced to oppose any EU decisions on these issues rather than negotiate, then the other member states will start to think of creative ways to move forward without the UK. If this happens, Britain's influence in negotiations on a wide range of issues will be reduced, as the other member states start to use the "enhanced cooperation" provisions in the treaty. Over time this would lead to Britain gradually becoming semi-detached from the EU. This outcome might be one of the underlying intentions in the bill. However, if this is an implicit aim, it should be stated explicitly by the government and debated more widely. In time, a semi-detached status—as in the current relationship between Norway and the EU—is probably not stable, and at some point Britain will face the undesirable choice between leaving the EU or signing up to be a full member of an organisation which has been shaped by others without much input from the UK.

17.  Finally, there are two issues that are largely absent in the bill. First, it does not make sense to establish that EU enlargement does not require a referendum or even an act of parliament, as currently set out in Clause 4(4)(c). It is inconsistent to argue that relatively minor EU decisions are of a quasi-constitutional nature, and so require a referendum or an act of parliament or both, yet the accession of any member state to the EU does not have any constitutional implications for the powers of the UK. Given the rules in the Lisbon Treaty on qualified-majority voting, and how they will operate after 2014 and 2017, the accession of every member state will have a significant affect on relative bargaining power in the Council. And, the larger the member state, the bigger the implications. For example, if Turkey joined the EU, the bargaining power of the United Kingdom as a proportion of total decision-making power in the Council, and the ability of the UK to form a blocking minority against a qualified-majority, would drop considerably. So, if the principle that any EU change that has constitutional implications should require an additional check of some kind on the decision-making power of our officials and ministers in Brussels, then the accession of any new member state should either be included in Clause 6(1) or in Clause 7(2).

18.  The second issue which is missing from the bill relates to the way British officials and ministers negotiate in COREPER and the Council, respectively. Despite some improvement in access to documents and transparency, COREPER and the Council remain highly secretive institutions. In particular, in contrast to the European Parliament, there is not full public access to all legislative documents in the Council. For example, under the new rules of procedure in the Council, governments are required to "co-sponsor" amendments to draft Directives and draft Regulations. The texts of these amendments and which governments have co-signed which amendments are not publicly available. The only texts that are available are the draft texts from the Commission, the proposals from the Council Presidency, and the agreed positions of the ministers (such as the Common Position at first reading under the ordinary legislative procedure). This is completely unacceptable from the point of view of a supposedly democratic legislature. I would recommend that the bill contain a provision that requires that the House of Commons has access to every draft text, amendment, opinion, and position paper relating to every legislative dossier in the Council which is seen by British officials in COREPER or British ministers in Council meetings. All such documents in the European Parliament are fully available, usually on the Parliament's website, and I see no reason why this should not also be the case for the Council when it is acting in a legislative capacity. For more information on this particular issue, I refer the committee to the written evidence I gave to the European Union Committee of the House of Lords on the Implications of Codecision for National Parliamentary Scrutiny, on 12 May 2009.

19.  In sum, I welcome the EU bill as an attempt to reconcile de facto European economic and political integration with British constitutional practices, and to increase the accountability of the actions of our officials in Brussels. However, I fear that if the bill is enacted in its current form, the practical result will be either:

(1)  that the clauses that require a referendum on individual issues will not be regarded by our ministers or the other EU governments as credible constraints, or

(2)  that these provisions force our ministers to the sidelines on a wide range of issues, and so weaken our bargaining positions and ultimately lead to our detachment from the EU. I regard either of these outcomes as highly undesirable. I would recommend replacing the referendum requirements under Clauses 4 and 6 with a two-thirds majority requirement in the Commons, which would be a credible constraint (and so increase the accountability of our ministers when in Brussels), and would at the same time strengthen our bargaining positions on many issues in the EU.

December 2010

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