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

5  What are the potential impacts of the Bill on UK-EU relations?

Impact of domestic constraints on EU negotiations

74. The Government in both its written submission and in the Minister's oral evidence stressed the domestic nature of the Bill as part of the Government's "wider objective of restoring trust and enhancing democratic accountability of the EU among the British people".[83] The Minister for Europe told us that "The question of strengthening our negotiating hand is a secondary consideration. It is not what motivated us to bring forward the Bill in the first place."[84] However, he went on to say:

"I think that an awareness that a particular change has to win approval from Parliament, or from the British people, or both, is a useful check to have. I have noticed that other countries represented at Council of Ministers meetings are very concerned about whether a particular proposal might cause a referendum in their own nation, and that is something their colleagues around the table take account of in discussion."

75. In our call for evidence at the start of the inquiry we asked: "What are the potential impacts of the Bill on UK-EU relations?" Those submissions which addressed the question were uniformly of the view that the effects would be negative. Professor Craig wrote that the Bill was likely to be "regarded with emotions ranging from dismay to anger within the EU and in many European capitals".[85] Andrew Duff MEP described the Bill as accentuating British exceptionalism in the European Union.[86]

76. The Government however maintains that its approach is shared by other Member States, which provide for referendums and Parliamentary approval in order to consent to Treaty changes or specific decisions which transfer powers or competence.[87] This view was challenged by several witnesses. In terms of imposing domestic constraints on a government in its EU negotiations, the provisions of the Bill are, according to Professor Simon Hix, "completely unique".[88] Professor Dougan wrote "the referendum requirements proposed under the Bill go significantly further than the corresponding regimes in force in any other Member State".[89] While several have used referendums in the past for ratifying Treaties, no other Member State has introduced any requirement either for passing legislation through Parliament or for a referendum in respect of the items covered under clauses 4 and 6 in the Bill, relating to the passerelle clauses or the special amendment provisions in the Treaty.[90]

77. While improving the UK's negotiating hand may not have been the primary purpose of the Bill, it might be assumed that domestic constraints are a factor in negotiations. Professor Hix referred in his evidence to the "paradox of weakness"; the idea 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 it does not gain sufficiently in the negotiations.[91] As a result, the greater the domestic constraints imposed on governments in EU negotiations, the more they are likely to gain in bargains that have to be reached unanimously. Denmark in particular was seen as having done well in both budget and Treaty negotiations because of high domestic requirements for Treaty reforms.[92] During the negotiations on the Convention on the Future of Europe, France and the UK were seen as strengthening their hands in the middle of negotiations after referendum commitments were announced in both countries.[93]

78. However, for Professor Hix, two conditions had to apply for domestic constraints to increase a government's bargaining position and in his view neither applied in the case of the provisions of the EU Bill. The first condition was that the constraints were seen as credible by other Member States. And, while the threat of a referendum was well understood in the case of a major Treaty reform, the same could not be said of the use of passerelle or ratchet provisions in the Treaty. It was on these procedural issues—the possibility of a referendum on the movement from special legislative procedure to ordinary legislative procedure for the passage of an EU carbon tax, for example—that Professor Hix doubted that the threat would be taken seriously by other Member States and that they would call the UK's bluff.[94] The Minister for Europe disagreed and cited the carbon tax example as one "that would attract the public to the ballot box".[95]

79. The second condition is that on the issues which are subject to a domestic constraint there are no alternatives for the other Member States to act without the UK. Again, in the case of major Treaty reform there is no alternative to including the UK, but when it comes to the less significant issues listed under Clauses 4 and 6, on most of these issues there are other options available for Member States. In certain areas an alternative can be found within the "enhanced cooperation" provisions of the Treaty, or if enhanced cooperation cannot be used then there is the possibility of concluding intergovernmental agreements outside the framework of the EU.[96]

80. Professor Hix summed up the position as follows:

"I think that a lot of other Member States will look at the Bill, if it is passed and if an issue comes up, and either say, "If a British Government is in favour of us making this change, they will find some way to amend the Bill relating to those provisions, so that they can get on with business in Brussels." or, "I don't expect that they're going to have a referendum on these things, and therefore they will have to vote no." or, "There will be a referendum on these things, and it will inevitably be a no, so therefore we have to think about ways to get around the British position." Any of those scenarios weakens the hand of any British Government in negotiations, because the assumption is either, "It is not a credible threat and therefore we don't take you seriously," or, "It is a threat but you're binding your hands already to say no. Whatever we come up with you are going to say no, so therefore we won't negotiate at all with you."[97]

81. Professor Hix proposed as an alternative replacing the referendum requirements under Clauses 4 and 6 with a two-thirds majority requirement in the Commons. This, in his view, would both increase the accountability of Ministers when in Brussels and, by being credible, strengthen the UK's bargaining position.[98] If the Government considered this option the Minister for Europe chose not to comment on it.[99]

82. In contrast to Professor Hix, Sir John Grant, the UK's Permanent Representative to the European Union from 2003-07, took a very different, if perhaps at times technocratic, view of the Bill's likely impact on the UK's relations with the EU. Asked how he might have operated as the UK's Permanent Representative had the Bill been in place, he replied that, since by definition the Council's working groups and the Council of Ministers worked within the competence of the EU and as there could be no negotiations on legislation where there was no competence, the Bill, which concerns itself with competence or changes in voting procedure, would have made no difference. At official level negotiations in Brussels take place on the merits of the issue and alliances of convenience are formed to pursue the national interest.

83. Other considerations might arise at the political level, principally in the European Council but occasionally in Ministerial Councils,[100] but Sir John stressed that:

"People tend to vote in the Council, in my view, in relation to their interest on the question, so countries will look at the piece of legislation and say, "Does it suit us?" There's very little, in my experience, of people saying, "We'll vote for that, although we don't like it very much, because we're dependent on another Member State for something else." In my experience, there's very little of that."[101]

84. Sir John played down the likelihood of there being a referendum in the next five years on a move from unanimity voting to QMV by a passerelle. He added that passerelles were in any case difficult to use for the simple reason that "everybody's got to agree that some of them are going to be outvoted". [102] .

85. Sir John was similarly unconvinced by the likelihood of a move to greater use of enhanced cooperation in response to an increase in British awkwardness, for the simple reason that the Bill was designed to put a referendum lock on the transfer of new areas of competence but enhanced cooperation could only take place where competence already existed: "I don't think the question about whether the Bill will lead to more enhanced cooperation is a very big question. It's a good question—you have to ask it—but I think the answer is: maybe in the odd, relatively limited case."[103]

86. He concluded that the impact of the Bill would be on the specifics; that the UK might frustrate the odd move from unanimity to QMV or the addition of minor new competences to Part 3 of the TFEU, but he did not see the Bill's Part 1 provisions as marking a change in the UK's relations with its EU partners, commenting:

"if you look back over the history of the past 25 years in Europe, I don't think this will be regarded by anyone in Brussels as a qualitative change in British awkwardness … Where it would become dramatic would be if everybody woke up tomorrow morning and said, "There's only one way to sort all of this: we need another treaty." But do you really think that there is an appetite for that in France, the Netherlands, Ireland, Denmark or the Czech Republic? I don't think so."[104]

EU enlargement and Accession Treaties

87. The Government has explained the need for the Bill in terms of addressing a perceived disconnection between the will of the British people and the decisions taken in their name by the British Government in respect of the EU.[105] It might be thought surprising therefore that an issue as significant as EU enlargement is not covered by the Bill. But clause 4(4)(c) clarifies that accession Treaties which do not go beyond the changes necessary for the accession of the new Member State are exempt from the referendum lock. The Minister for Europe explained the exclusion thus:

"The reason is that we have followed a particular principle; which is that a referendum should be required where there is a transfer of competence or power, and an accession Treaty transfers competence and power from the acceding state to the EU. I would add … that, of course, every accession treaty will have to be ratified by a separate Act of Parliament here."[106]

88. Sir John Grant took the same view, that accession takes place within the existing powers and on the basis of the existing competence of the Treaties. He acknowledged that enlargement brought with it a dilution of the UK's relative weight in the Council and in the European Parliament but saw this as distinct from a transfer of power to the supranational level.[107] Indeed, running counter to the argument that enlargement always meant a dilution of UK influence, he pointed out that it also brought new alliances and cited the accessions of 1994-95 and the Central and Eastern European enlargements as changing the balance of power overall to the UK's benefit.[108]

89. Professor Hix disagreed. If the intention of the Bill was to establish a principle that any significant transfer of powers, or anything which significantly changed the balance of powers between the institutions or between the Member States in Brussels, required a referendum, it ought to include the accession of Member States above a certain size. Size mattered and the accession of a state like Turkey to the EU would fundamentally change the influence that the UK had on legislative decision making. He concluded, "Turkish accession to the EU is, for me, a much more significant shift in the influence and power of the UK in Brussels than the majority of things that are mentioned under clauses 4 or 6."[109]

83   Ev 38, para 48 Back

84   Q 159 (HC 633-II) Back

85   Ev 20 (HC 633-II) Back

86   Ev 24 (HC 633-II) Back

87   Ev 38, para 51  Back

88   Q 1 Back

89   Ev 38 (HC 633-II) Back

90   Q 1  Back

91   Ev 46 (HC 633-II) Back

92   Q 3 Back

93   Q 3  Back

94   Q 3 Back

95   Q 152 (HC 633-II) Back

96   Q 41, Ev 39 (HC 633-II) Back

97   Q 28 Back

98   Ev 47, para19 Back

99   Q 146 (HC 633-II) Back

100   Q 80 Back

101   Q 90 Back

102   Q 93 Back

103   Q 94 Back

104   Q 95 Back

105   HC Deb,13 September 2010, WMS, col 32-33W Back

106   Q 166 (HC 633-II) Back

107   Q 102 Back

108   Q 101 Back

109   Q 44  Back

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