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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