2 Part 1 of the EU Bill explained
6. Part 1 of the EU Bill applies three types of constitutional
control mechanisms, or "locks", to future increases
in the competence or power of the EU: referendums followed by
Act of Parliament (clauses 2, 3 and 6)(the "referendum lock");
Acts of Parliament (clauses 7, 8 and 9); and Parliamentary approval
by motion without amendment (clauses 8, 9 and 10).[5]
Clauses 2, 3 and 8(5) also require a ministerial statement to
be laid before Parliament.
Clause 2—Treaties amending
or replacing TEU or TFEU
7. Clause 2 concerns increases in EU competence and
or power after full-scale Treaty revision, such as preceded the
adoption of the Lisbon Treaty. This type of Treaty revision takes
the form of a new amending Treaty. It usually requires a Convention
to be established including the European Parliament and national
parliaments of the Member States, which makes recommendations
to an Intergovernmental Conference (IGC) of Member States, which
in turn negotiates the amending Treaty. The amending Treaty has
to be ratified by Member States "in accordance with their
respective constitutional requirements"[6].
This procedure is called "the ordinary revision procedure",
and is set out in Article 48(2)-(5) of the Treaty on European
Union (TEU).
8. Clause 2 also applies to accession Treaties (see
clause 1(4)(b)), but only if they incorporate provisions that
go beyond those necessary for the accession, as confirmed by paragraph
58 of the Explanatory Notes. In contrast to the ordinary revision
procedure, accession Treaties are negotiated under a purely intergovernmental
procedure with the accession State, the process for which is set
out in Article 49 TEU. The accession Treaty also has to be ratified
by Member States "in accordance with their respective constitutional
requirements".[7]
9. By virtue of clause 2, a Treaty adopted by the
EU pursuant to the ordinary revision procedure, or an accession
Treaty that incorporates provisions that go beyond those necessary
for the accession, is not to be ratified by the Government unless:
— a
statement in accordance with clause 5 has been laid before Parliament;
— the Treaty has been approved by Act of
Parliament; and
— the "referendum condition"
or the "exemption condition" is met.[8]
10. The referendum and exemption conditions are alternatives—only
one has to be met.
11. The statement is a statement as to whether the
Treaty "in the Minister's opinion" falls within clause
4 of part 1 of the Bill (clause 5(3)).
REFERENDUM CONDITION
12. The referendum condition is met if the coming
into force of the Act of Parliament approving the Treaty is made
conditional upon the result of the referendum; the referendum
has been held; and the majority of those voting were in favour
of the ratification of the Treaty. By this means, the referendum
is post-legislative and the result of the referendum is made legally
binding through statute.
EXEMPTION CONDITION
13. The exemption condition is met simply if "the
Act providing for the approval of the treaty states that the treaty
does not fall within section 4." If this condition is met,
there is no requirement for a referendum. It is to be inferred,
therefore, that if the transfer of competence or power does not
fall within clause 4(1)-(3), it is exempt. However, although not
referring expressly to the exemption condition, clause 4(4) provides
the following examples of changes to the EU that would be exempt:
A treaty or Article 48(6) decision does not fall
within this section merely because it involves one of more of
the following -
(a) the codification of practice under TEU or
TFEU in relation to the previous exercise of an existing competence;
(b) the making of any provision that applies
only to Member States other than the United Kingdom;
(c) in the case of a treaty, the accession of
a new Member State.
14. The Explanatory Notes tell us that this list:
"is illustrative, rather than exclusive.
In other words, there may be other types of Treaty change which
do not transfer competence or power from the UK to the EU and
therefore do not trigger a referendum".[9]
(Emphasis added.)
Subsequent paragraphs in the Explanatory Notes illustrate
further examples of exempt Treaty amendment.
Clause 3—Amendment of TFEU
under simplified revision procedure
15. Clause 3 appears to concern increases in EU competence
and/or power after the "simplified revision procedure",
set out in Article 48(6) TEU. This procedure allows Member States
acting unanimously by means of a Decision of the European Council
to revise Part 3 of the Treaty on the Functioning of the European
Union (TFEU), "Union Policies and Internal Actions",
without having to engage the lengthy procedures of an ordinary
revision of the Treaties.[10]
There is, however, an important caveat to its use: the proposed
revision must "not increase the competence conferred on the
Union in the Treaties".[11]
16. By virtue of clause 3, a European Council Decision
agreed pursuant to the simplified revision procedure in Article
48(6) TEU is not to be ratified by the Government unless:
— a
statement in accordance with clause 5 has been laid before Parliament;
— the Treaty has been approved by Act of
Parliament; and
— the referendum condition, the exemption
condition, or the significance condition is met.[12]
17. The referendum, exemption and significance decisions
are alternatives—only one has to be met.
18. The statement is a statement as to whether the
Article 48(6) TEU Decision "in the Minister's opinion"
falls within clause 4 of part 1 of the Bill.
THE SIGNIFICANCE CONDITION
19. The referendum and exemption conditions are as
above. What distinguishes clauses 2 and 3 is that the latter requires,
in two specific circumstances related to the transfer of power
rather than competence, a "significance condition" to
be met. The two circumstances are:
"the conferring on an EU institution or body
of power to impose a requirement or obligation on the United Kingdom,
or the removal of any limitation on any such power of an EU institution
or body;" (clause 4(1)(i)); or
"the conferring on an EU institution or body
of new or extended power to impose sanctions on the United Kingdom"
(clause 4(1)(j)".
20. The significance condition is met if the Act
approving the Article 48(6) TEU Decision states that the European
Council Decision falls within one or other of the transfers of
power in clause 4(1)(i) and (j) above, and that its effect on
the United Kingdom "is not significant" (clause
3(4)(b)). If this condition is met, there is no requirement for
a referendum.
21. In addition, if the European Council Decision
falls within one or other of the transfers of power in clause
4(1)(i) and (j) above, the statement laid before Parliament must
indicate whether "in the Minister's opinion the effect of
that provision in relation to the United Kingdom is significant"
(clause 5(4)). This would appear to apply whether the significance
condition was met or not, and would therefore apply even where
the Minister concludes that the transfer is significant.
22. It should be noted that the significance decision
does not, by inference, apply to the two transfers of power in
clause 4(1)(i) and (j) if they have been agreed as a consequence
of an amending Treaty following the ordinary revision procedure
(clause 2). Nor, in these circumstances, would the Minister's
statement have to say whether the transfer of power was significant
under clause 5(4).
Clause 4—Cases where a Treaty
or Article 48(6) decision attracts a referendum
23. Clause 4 lists the types of transfers of competence
(clause 4(1)(a)-(h)) and power (clause 4(1)(i)-(m))[13]
which attract a referendum. Clause 4(1)(k) refers to the removal
of the UK's right of veto in 44 Treaty provisions listed in Schedule
1 to the Bill.
24. As stated above, the exceptions to the requirement
for a referendum are if the exemption condition is met; or if
the significance condition is met in relation to a Article 48(6)
TEU Decisions concerning the two transfers of power in clause
4(1)(i) and (j).
Clause 5—Statement to be
laid before Parliament
25. Clause 5 is explained in the context of the operation
of clauses 2-4 above.
Clause 6—Decisions requiring
approval by Act and referendum
26. Clause 6 lists specific cases where a referendum
and an Act of Parliament are required. These decisions would not
involve a new Treaty or Article 48(6) TEU Decision and so would
not be caught by the provisions of clauses 2, 3 or 4. Neither
the exemption nor the significance condition applies to clause
6. The Explanatory Notes make clear that "[i]n the case of
these decisions, no judgment is required by a Minister as to whether
a transfer of competence or power would occur in each case".[14]
27. The provisions listed in clause 6 mostly concern
passerelle clauses[15]
(self-amending provisions where the possibility for amendment
is provided for in the Treaty Article) which permit a change in
the voting procedure from unanimity to qualified majority (QMV),
or in the legislative procedure from special legislative procedure
to the ordinary legislative procedure (co-decision). In the case
of the latter change, the voting procedure in the Council almost
always goes from unanimity to QMV.
28. Principal among these clauses is what is called
the "general passerelle clause" set out
in Article 48(7) TEU.[16]
This, in essence, permits the European Council, acting unanimously,
to authorise the Council to act by QMV instead of unanimity in
the area of Common Foreign and Security Policy (CFSP) (with the
exception of military and defence matters), and by ordinary instead
of special legislative procedure in all other policy areas under
the TFEU. The European Parliament has to consent to its use. National
parliaments have six months within which to approve the European
Council's decision; if any oppose it, it cannot be finally adopted.
Clause 6(4)(b) provides that Article 48(7) TEU Decisions taken
in relation to the 44 Treaty provisions listed in Schedule 1 of
the Bill will need to be approved by referendum and Act of Parliament
in the UK before they can be adopted by the European Council.[17]
29. In addition, clause 6 requires a positive referendum
result and an Act of Parliament to be passed before the UK can
agree to a common EU defence policy; before it can participate
in a European Public Prosecutor's Office; before the euro can
become the currency of the UK; before the Council can move to
QMV in specific instances in the field of social and environmental
policy and EU finance;[18]
before the UK can agree to a change in voting procedures in areas
of "enhanced cooperation" in which it participates;
and before any border control can be removed.
Clause 7—Decisions requiring
approval by Act
30. Clause 7 provides that in respect of the
specific matters set down in subsections (2) and (4) a Minister
may not confirm the UK's approval of a Council Decision, vote
in favour of or otherwise support a Council Decision, unless the
Decision is approved by an Act of Parliament. Again, neither the
exemption nor the significance condition applies, so no ministerial
judgment is required. The Treaty Articles covered by this clause
include Article 48(7) TEU Decisions (the general passerelle
clause) taken in relation to any Treaty provisions not
listed in Schedule 1 of the Bill—in other words all
other Treaty provisions not considered sufficiently important
to merit a referendum (unless dealt with elsewhere in Part 1);
the adoption of provisions to strengthen or add to the rights
of EU citizens; the conferring of jurisdiction on the ECJ in the
area of European intellectual property law; the adoption of a
new decision on own resources; and the alteration of the number
of Commissioners.
Clause 8—Decisions under
Article 352 of TFEU
31. The Council can use Article 352 TFEU (the "flexibility
clause") to adopt measures in order to attain one of the
EU's objectives, but only where the existing Treaties have not
provided the necessary powers to do so already. Subsection (1)
provides that any one of the conditions in subsections (3), (4)
or (5) needs to be satisfied in relation to an Article 352 TFEU
Council Decision.
32. Subsection (3) contains the general rule, which
is that the UK may not agree to a Decision under Article 352 TFEU
unless the Decision has been approved by an Act of Parliament.
33. Subsection (4) provides for the Parliamentary
approval of urgent or emergency uses of the flexibility clause
without the need for an Act of Parliament. The Explanatory Notes
say that this has been used in the past for urgent or emergency
uses, where rapid EU action has been agreed but where there was
no explicit legal basis on which to base that action. Subsection
(4)(a) and (b) stipulate that the UK may agree to the adoption
of a measure based on Article 352 TFEU in urgent or emergency
cases if approved by motion without amendment in each House of
Parliament.
34. Subsection (5) provides that an Act of Parliament
would not be required for any Article 352 TFEU proposal which
satisfies any of the exemptions listed in subsection (6). The
exemptions in subsection (6) seek, the Explanatory Notes tell
us, to prevent Acts of Parliament to approve measures which have
been agreed in substance under previous measures using the Article
352 TFEU legal base. In these circumstances a Minister must lay
a statement before Parliament saying that the use of the flexibility
clause is for an exempt purpose, in which case Parliamentary approval
is not required.
Clause 9—Approval required
in connection with Title V of Part 3 of TFEU
35. Clause 9 prevents the UK from opting into three
types of proposal under Title V TFEU—the Area of Freedom,
Security and Justice (FSJ) (also known as Justice and Home Affairs
(JHA))—unless approved by motion without amendment in each
House of Parliament; and from agreeing to the final adoption of
the legislation in Brussels unless an Act of Parliament has been
passed. The three proposals are:
— a
Council Decision under Article 81(3) TFEU, which would permit
a move from the special legislative procedure to the ordinary
legislative procedure in respect of family law measures with cross-border
implications. This would in effect mean a move from unanimity
to qualified majority voting;
— a Council Decision under Article 82(2)(d)
TFEU, which would permit additions to the list of specific aspects
of criminal procedure on which the EU can adopt minimum rules;
and
— a Council Decision under Article 83(1)
TFEU, which would permit additions to the list of areas of particularly
serious crime with a cross-border dimension on which the EU can
act to specify minimum rules on the definition of those offences
or sanctions to apply.
Clause 10—Parliamentary
control of certain decisions not requiring approval by Act
36. Under clause 10 seven specified Council Decisions
have to be approved by motion without amendment in both Houses.
The areas covered include free movement of services, increases
in the number of Advocates-General at the Court of Justice of
the European Union (ECJ), establishment of "specialised courts"
attached to the General Court,[19]
and amendments to the statutes of the ECJ, the European Central
Bank (ECB) and the European Investment Bank (EIB). They are subject
to qualified majority voting in the Council, with the exception
of those in subsections (1)(c) (increase in the number of Advocates-General),
(1)(f) (EIB), and (2) (EU accession to the European Convention
on Human Rights), which are subject to a unanimous vote in Council.
Summary of the control mechanisms
in Part 1
37. The following summarises Part 1 of the Bill:
— Clauses
2, 4 and 5: If the EU
decides to amend its Treaties by means of a full-scale revision,
in other words by the ordinary revision procedure
in Article 48(2)-(5) TEU, the UK cannot ratify the amending Treaty
unless a statement is laid before Parliament, the Treaty is approved
by Act of Parliament, and a majority voting in a referendum is
in favour of ratification. The one exception relates
to the requirement for a referendum: if the subject matter of
the amending Treaty does not fall within any of the categories
of transfer of competence or power in clause 4, the exemption
condition is met and a referendum is not required. Clause
4(4) gives an illustrative list of exemptions from the requirement
for a referendum. (There are no exemptions, however, from the
requirement for a ministerial statement and Act of Parliament.)
— Clauses 3, 4 and 5: If the EU
decides to amend any provision in Part 3 of the TFEU by means
of a European Council Decision following simplified revision
procedure, as set out in Article 48(6) TEU, the UK cannot
confirm its approval of the Decision unless a statement is laid
before Parliament, the Decision is approved by Act of Parliament,
and a majority voting in a referendum is in favour of ratification.
The simplified revision procedure only applies to transfers
of power. The two exceptions relate to the
requirement for a referendum: firstly if the subject matter of
the Decision is exempt (as above), a referendum
is not required; secondly if the subject matter falls within the
types of transfer of power set out in clause 4(1)(i) and (j),
the relevant Minister may decide that the transfer of power is
not significant enough for a referendum to be held.
— Clauses 6(4)(b) and 7(4)(b): the
general passerelle clause. If the EU decides to change
the voting or legislative procedure in the Council from unanimity
to QMV or from the special to the ordinary legislative procedure
(co-decision) in an area of EU policy by means of an Article 48(7)
TEU European Council Decision, the UK cannot confirm its approval
in the European Council unless:
— for any of the Treaty provisions listed
in Schedule 1 of the Bill, the Decision is approved
by Act of Parliament and a majority voting in a referendum is
in favour of ratification of it (clause 6(4)(b);
— for all other Treaty provisions not
included in Schedule 1 nor dealt with elsewhere in the
Bill, the Decision is approved by Act of Parliament (clause
7(4)(b)).
Neither the exemption nor the significance condition
applies to the general passerelle clause, so no judgment
is required by a Minister as to whether, respectively, a referendum
and an Act of Parliament or an Act of Parliament would be required.
Passerelles and other provisions. Clause 6:
the decisions listed are subject to approval by referendum and
Act of Parliament. Clause 7: the decisions listed
are subject to approval by Act of Parliament. Clause 8
is concerned with Article 352 TFEU, the flexibility clause: the
basic requirement is approval by Act of Parliament or a motion
approved without amendment by both Houses, unless the purpose
is exempt under subsection (6); Clause 9 deals with
three Title V TFEU (FSJ) opt-in decisions where Parliamentary
approval is required for the UK to opt in, and an Act of Parliament
before the UK can give its agreement to the adoption of the legislation.
Clause 10 lists seven provisions which have to be
approved by motion without amendment.
5 Clause 8 also provides for an Article 352 TFEU decision
to be approved in urgent cases once a ministerial statement is
laid before Parliament. Back
6
Article 48(4) TEU Back
7
Article 49(2) TEU Back
8
The current constitutional requirement for an amendment of the
EU Treaties by a further Treaty is an Act of Parliament to amend
the European Communities Act 1972.
Back
9
Para 55 Back
10
This is the procedure being used to establish the permanent bail-out
mechanism for the eurozone, the European Stability Mechanism(see
the Committee's Report on this: HC 428-xii (2010-11), chapter
2 (12 January 2011). Back
11
Article 48(6), third paragraph, and see paragraph 60 of this Report. Back
12
The current constitutional requirement for approval of a European
Council Decision following the special legislative procedure is
set out in section of the European Union (Amendment) Act 2008,
which incorporates the Lisbon Treaty into national law. Section
6(1)(a) requires the Decision to be approved by motion without
amendment in both Houses.
Back
13
There is some confusion here. Paragraph 20 of the Explanatory
Notes say that three types of transfer of power are possible-subsection
1(i)-(k) of Clause 4. It is unclear whether the Government considered
that the loss of the "emergency brake" in subsection
(1)(l) and (m) would amount to a transfer of power. Back
14
Para 64 Back
15
There is no one definition for what a passerelle (or "ratchet")
clause is. Back
16
It would appear from the structure of Article 48 TEU that this
is recognised by the Lisbon Treaty also as a simplified revision
procedure, but it is generally called the general passerelle
clause. Back
17
The current constitutional requirement for approval of a European
Council Decision based on the general passerelle clause
is Parliamentary approval by motion without amendment, pursuant
to section 6(1)(b) of the European Union (Amendment) Act 2008. Back
18
These three passerelles are currently subject to Parliamentary
approval under section 6(1)(e)-(g) of the of the European Union
(Amendment) Act 2008. Back
19
Pre-Lisbon Treaty, the Court of First Instance. Back
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