The EU Bill: Restrictions on Treaties and Decisions relating to the EU - European Scrutiny Committee Contents

1  Introduction

1. In his evidence to us, the Minister for Europe, David Lidington, described the purpose of the "referendum lock" in Part 1 of the EU Bill as follows:

The point of having the referendum lock is to guard against the risk that, in future, powers would be transferred to the European Union, without the consent of the British people in the way that has happened in the past. I very much want to see the UK not only remaining a member of the EU, but being a very active participant as well. One of the difficulties in us taking on that role with confidence has been the fact that people in this country feel that vital decisions have been taken in the past, about which they were not consulted and about which they ought to have had a say, and about which the populations of other European countries have been able to have a say.[1]

2. At the conclusion of his evidence, he added:

I think [Part 1 of the Bill is] a lot more than a de minimis measure. I think that the introduction of additional powers for Parliament to insist on giving its assent before certain decisions are taken, and the new powers for the people to have the final say over any future proposal to transfer competence, are very significant changes to our law. What is true is that the Bill does not set out to revisit previous treaties or the existing legal order as regards the directly effective nature and primacy of European Union law in this country.

What the Bill is doing is delivering two of the Government's commitments under the coalition programme. It brings in legislation to require a referendum before transfers of competence and to require primary legislation before passerelle clauses are used. Secondly, it delivers on what was in the coalition programme simply as an agreement to consider the case for a sovereignty Bill—that Bill is being introduced by the means of clause 18. There was a third limb to the coalition programme's commitments on Europe, which was to examine the balance of competencies between this country and the European Union and, in particular, to examine ways in which the operation of the Working Time Directive could be made less onerous. That work is going on.[2]

3. But the Government has made plain that there will not be a referendum under Part 1 of the Bill in the lifetime of this Parliament.[3] And the Explanatory Notes to the Bill (the Explanatory Notes) emphasise that the Government's consent to a proposal in Brussels is an important pre-condition to triggering the referendum lock:

A referendum would only be required if the Government of the day wanted to support the change to the TEU or TFEU in question. If the Government of the day did not want to support the change in question, it would block the proposal at the negotiations stage. As all of the types of Treaty change that are to be subject to the referendum provisions will have to be agreed by unanimity at the EU level, the proposal could not form part of a new Treaty or a Treaty change—and there would then be no need for a referendum—if the Government did not support such a change.[4] (Emphasis added.)

4. The approach this Report takes is to explain in chapter 2 what Part 1 of the Bill sets out to do and then to summarise it; in chapter 3 to examine Part 1 for gaps in the constitutional safeguards it introduces, and to consider other legal concerns; in chapter 4 to look at the practicalities of implementing the referendum requirements; and in chapter 5 to look at the impact of Part 1 on UK-EU relations. Chapter 6 contains our evaluation and conclusions.

5. This is the second of two Reports which we have produced on the European Union Bill. This Report draws on evidence published as Volume II of our Tenth Report of Session 2010-11, The EU Bill and parliamentary sovereignty. Where this occurs the footnotes to the text make clear that references relate to Volume II of the Tenth Report (HC 633-II). Further written evidence has been received and oral evidence taken since we published the Tenth Report. The oral evidence sessions with Professor Simon Hix, Professor of European and Comparative Politics, London School of Economics and Political Science; Professor Ken Minogue Professor Emeritus at the Department of Government, London School of Economics and Political Science; and Sir John Grant, former UK Permanent Representative to the European Union, are published in Volume II to this Report along with further written evidence. This Report is concerned with the provisions of Part 1 of the Bill. Where evidence relates to the subject of our earlier Report—the Bill's Parliamentary sovereignty clause and the question of binding of future parliaments—it is published but not commented on.

1   Q 154 (HC 633-II) Back

2   Q 193 (HC 633-II) Back

3   The Coalition: Our programme for government, page 19 Back

4   Paragraph 15 of the Explanatory Notes Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2011
Prepared 24 January 2011