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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