House of Commons - The EU Bill: Restrictions on Treaties and Decisions relating to the EU

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

6 Evaluation and conclusions

90. We set out the following evaluation and conclusions with a view to them informing the consideration of the Bill in Committee.

The likelihood of referendums being held pursuant to Part 1 of the Bill

91. Given the troubled history of the Lisbon Treaty, and that it came into effect so recently, we agree with those witnesses who thought that it was unlikely that the EU will want to revise its Treaties through the ordinary revision procedure under Article 48(2)-(5) TEU for several, if not many, years to come. It is unlikely therefore that clause 2 of the Bill will come into play in the near future, except possibly in the case of an accession Treaty under Article 49 TEU which incorporates additional transfers of competence or power.[110] We also conclude that if and when an ordinary revision were to take place, it would be likely to include several amendments to the competences and powers of the EU, and so would require a referendum under one or several of the subsections in clause 4.

92. However, the referendum lock is more likely to be considered as a consequence of the use of the simplified revision procedure under Article 48(6) TEU—the quickest and simplest way for the EU to gain power in a particular field. Article 48(6) TEU is, for example, the basis for the European Council's Decision to establish the permanent eurozone bail-out mechanism, the European Stabilisation Mechanism, which it is due to adopt in March this year (and which will replace the temporary bail-out mechanism adopted on the basis of Article 122 TFEU, a legal base which we regard as unsound).

93. It is also possible that the general passerelle clause under Article 48(7) TEU, or the individual passerelle clauses to which the referendum lock attaches, may be invoked by a group of Member States frustrated that the requirement for unanimity in the Council is blocking the development of an EU policy. But we question how likely it is that the Government of the day will want to give up its veto right if it objects to a policy. On this point Sir John Grant said:

"The point about the passerelles is that-they're significant in a way, of course they are, they're there for a reason-but it's very difficult to use them, whether or not there is a referendum Bill. It seems to me that what the Government is seeking to do is to put beyond any doubt its position on the matter and its assessment of the relative importance of that and the way it wants to deal with it, but the reason passerelles aren't used very much is that everybody's got to agree that some of them are going to be outvoted."[111]

94. Professor Hix made a similar point:

"I think [the Bill] is primarily designed to put a brake—to bind the hands of the current Government or of future Governments—on what Britain can sign up to in Brussels, on the understanding that there would never in practice be referendums on most of these things. That is how I read it. My question is how credible it is in that aim, and frankly I don't find it that credible."[112]

95. So notwithstanding the Government's statement that there will not be a transfer of competence or power, and therefore a referendum, in the course of this Parliament, we conclude that:

— it is in reality unlikely that most of the Treaty provisions which attract a referendum under the Bill will ever successfully be invoked; but

— if one is, one of the exceptions below may be applicable.

Exceptions to the referendum requirement—significance, exemption, and judicial review

SIGNIFICANCE

96. Clause 4(1)(i) and (j) provide as follows:

"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))". (Emphasis added.)

97. Where transfers of power pursuant to these provisions are, in a Minister's opinion, insignificant, it is not necessary to hold a referendum (clause 3(4)). We seek clarification from Government on what circumstances the imposition of new obligations or sanctions would be considered insignificant.

98. We think the possibility for successful judicial review of a ministerial decision whether a transfer of power under clause 4(1)(i) and (j) is significant will, in practice, be limited. There is little coherence in the way in which EU Treaty provisions have been allocated to national control mechanisms: some with significant national consequences are subject to approval by motion without amendment; others with less significant consequences to referendums. In the absence of clear criteria, we think the Administrative Court will have difficulty in construing how the "significance condition" in clause 2(4) is to be applied reasonably. The expressions "if the Minister is of the opinion" and "in the Minister's opinion" in clause 4(4) underline the subjectivity of this process and the difficulty of judicial review.

EXEMPTION

99. The scope of the "exemption condition" is similarly unclear. Clauses 2(3) and 3(3) simply state: "[t]he exemption condition is that the Act providing for the approval of the treaty states that the treaty does not fall within section 4". Clause 4(4) appears to give examples of Treaty amendments that would be exempt, although it does not refer to the "exemption condition":

— (a) "codification of practice […] in relation to the previous exercise of an existing competence", the meaning of which Professors Craig and Dougan thought would rarely be amenable to one interpretation.[113] In our opinion, this exception is significant: it would cover the practice of EU institutions pushing at the boundaries of their competence (competence creep), sometimes supported by judgments of the ECJ, and subsequently codified in a revision of the Treaties. The Explanatory Notes say that this provision would also cover use of the flexibility clause[114] where there was no legal base in the Treaty. Several of the new legal bases in the Lisbon Treaty were incorporated as a result of codification of past practice.[115]

— (b) "any provision that applies only to other Member States". This we presume is designed to cover the European Council Decision to establish the European Stability Mechanism, and any future Treaties or Decisions that apply to the eurozone or another forum of Member States excluding the UK. This subsection is not qualified at all, for example by a requirement to consider the impact of the provision on the UK, and so could cover Treaties or European Council decisions which have a profound effect on the UK even though they are expressed not to apply to the UK.

— (c) accession Treaties, which we think is anomalous given the effect of the accession of new Member States both on UK relations with the EU and on the voting power in the Council (see, for example, the case of Turkey at paragraph 119 below).

100. The Explanatory Notes tell us that this list is "illustrative rather than exclusive".[116] Subsequent paragraphs give examples of amending provisions that would be exempt. These include, with respect to clause 4(b):

"A treaty or an Article 48(6) decision does not apply to the UK merely because it may have consequences for individuals or organisations in the UK, such as UK businesses. Nor does it apply to the UK merely because the amendment imposes new responsibilities on EU institutions in which the UK participates and which the UK helps to fund".[117] (Emphasis added.)

101. We had assumed from the way the referendum lock has been presented, with emphasis on the consent of the people being required for EU decisions that affect them,[118] that provisions which have "consequences for individuals and organisations in the UK, such as UK business" would be the type to trigger a referendum, even if such provisions were addressed to a group of Member States other than the UK, such as the eurozone. Giving "new responsibilities" to EU institutions "which the UK helps to fund" similarly implies to us a transfer of power; but neither is this caught by the referendum lock. Nor would it appear that any future integration process which applied to other Member States but fundamentally affected the UK's relations with one or several of those Member States, or the EU itself, is caught by the referendum lock (see further below at paragraph 106).

102. The exemption condition applies to all transfers of power and competence whether as a result of the full-scale ordinary revision procedure (Article 48(2)-(5) TEU) or the simplified revision procedure (Article 48(6) TEU). So it has a far wider application than the significance decision, which is limited to two types of transfer of power (clause 4(1)(i) and (j)) agreed by an Article 48(6) Decision.

103. We conclude that the exemption condition, read together with clause 4(4) and the relevant paragraphs of the Explanatory Notes, is sufficiently broad and open-ended to allow a Minister wide discretion to consider a provision exempt. The breadth of power again is likely to defeat a successful application for judicial review. We note again that the clause 5 statement requires the Minister to state "whether, in the Minister's opinion, the treaty or Article 48(6) decision falls within section 4."

JUDICIAL REVIEW

104. On four occasions the Explanatory Notes mention the possibility of judicial review of Government decisions.[119] We question the appropriateness of this. Firstly on the legal grounds summarised above—it seems contradictory to tell "member[s] of the public it is possible to challenge the decisions of the Minister" but not to provide clear criteria by which the reasonableness of the Minister's decision can be reviewed. So we conclude that recourse to judicial review is a more illusory safeguard than the Explanatory Notes imply.

105. Secondly, on political grounds. The decision whether to hold a referendum is ultimately a political one, and therefore one in which the courts will, rightly, be reluctant to interfere. This is particularly so where the statutory provisions lack clear criteria defining when a provision is too insignificant or alternatively exempt from the referendum requirement, making it easier but no less unacceptable for a court to make its own assessment. We draw support for this view from the decision of the Divisional Court in the Wheeler case. When, in 2008, it was asked to review the decision of the previous Government not to hold a referendum on the Lisbon Treaty, it said that the promise to hold a referendum "lies so deep in the macro-political field that the court should not enter the relevant area at all".[120] For this reason as well, it is concerning then that the Explanatory Notes repeatedly refer to the possibility of judicial review; several of the expert witnesses commented on this.[121]

CONCLUSION

106. We conclude that the exceptions above have been drafted to allow the Government to support certain EU policies, such as strengthening of the eurozone, including through harmonisation of economic, fiscal and social measures if necessary,[122] or enlargement, without triggering the referendum lock. This concerns us because it is not how Part 1 of this Bill has been promoted: it has been promoted as a referendum lock with minor exceptions. It also concerns us because it denies access to the referendum lock even where the issue is profoundly significant to the UK public, for example where a re-concentration of power among other EU Member States takes place. See, for example, our conclusion below on accession Treaties; or on a mechanism for further integration in the eurozone excluding the UK which would flow from the comments of the French Prime Minister, François Fillon, on his recent visit to London:

"In order to consolidate the euro we will need gradually to harmonise our economic, fiscal and social policies, hence we are going towards greater integration. We are going to need to put in place an economic system of governance of the eurozone. Great Britain is not part of the eurozone; at the same time the decisions we will take will have great importance to Britain.

[...] We in the eurozone have no other choice right now than further integration. Essentially the question is whether the UK wants to exert an influence on this change in Europe or not"[123] (Emphasis added.)

Further gaps in the control mechanisms of Part 1

Extensions of EU competence in criminal law and procedure and family law

107. Two of the three decisions in clause 9, subsections (2)(b) and (c), concern clear extensions of EU competence in the field of criminal procedural law and substantive criminal law:

(b) the provision of Article 82(2)(d) of TFEU (criminal procedure) that permits the identification of further specific aspects of criminal procedure to which directives adopted under the ordinary legislative procedure may relate;

(c) the provision of Article 83(1) of TFEU (particularly serious crime with a cross-border dimension) that permits the identification of further areas of crime to which directives adopted under the ordinary legislative procedure may relate.

108. Both are areas of mixed competence under Article 4(1)(j) TFEU. To be consistent with extension of shared competence under clause 4(1)(e), the application of both of these provisions should be premised on a referendum and Act of Parliament, as in clause 6; not an affirmative vote before the Government's opt-in decision and an Act of Parliament before it agrees to the adoption of the legislation.

109. Clause 9(2)(a) —"the provision of Article 81(3) of TFEU (family law) that permits the application of the ordinary legislative procedure in place of a special legislative procedure"— is in our view of similar if not greater importance to social or environmental policy and ought to come within clause 6, triggering a referendum as well as an Act.

Opt-in decisions

110. The reasons given by the Minister for Title V TFEU opt-in decisions not being included in the Bill[124] are contradicted by clause 9, which attaches as a pre-requisite Parliamentary approval by motion without amendment before three opt-in decisions can be taken by the Government and an Act of Parliament before the final legislation can be adopted (see clause 9(2)(a)-(c)). It would seem to us consistent with the aim of Part 1 of the Bill for all opt-in decisions to be subject to formal Parliamentary approval.

Enhanced cooperation and internal passerelles

111. We recommend that a decision by the UK to enter enhanced cooperation where the voting procedure has been changed from unanimity to QMV be subject to a referendum lock.[125]

Inadvertent breaches of the provisions contained in Part 1 of the Bill

112. We recommend that the Minister consider an amendment to the European Communities Act to avoid inadvertent breaches of the provisions contained in Part 1 of the Bill being automatically incorporated into national law.[126]

Compatibility of Part 1 with EU and international law

113. Both M. Piris[127] and Professor Craig[128] raise serious doubts about whether some of the domestic control mechanisms introduced by Part 1 of the Bill are compatible with EU or international law. Again, we recommend that this be addressed during the Bill's consideration in Committee.[129]

Article 352 TFEU—the flexibility clause

114. The purpose of the flexibility clause, Article 352 TFEU, formerly Article 308 EC, is to provide a residual "power", when none is available elsewhere in the Treaties, for the institutions to attain any of the objectives set out in the Treaty. Our predecessor Committees, concerned by the wide reach of this aptly-named clause, closely scrutinised its use to ensure that it addressed a legitimate Treaty objective where no other power existed. They also took evidence on it from the Commission and Council Legal Services, Professor Alan Dashwood CBE, and the then Foreign Secretary (Margaret Beckett).[130] We welcome the default control mechanism of an Act of Parliament which clause 8 introduces before Article 352 TFEU can be used as a legal base, but recommend that the exceptions to the requirement for an Act of Parliament in clause 8, subsections (4)-(6), be carefully considered in Committee.

Implementation of the referendum lock

115. Since 1973, nine referendums have been held in the UK, one of which has been nationwide.[131] A further nationwide referendum on the alternative vote system for the election of Members of Parliament is planned for this year. By contrast, this Bill introduces 56 Treaty provisions which, if ever invoked, would trigger a referendum. The majority of them does not concern major issues of national policy, such as changing the currency of the UK, but a change in the voting system in the Council from unanimity to QMV.

116. The evidence from Professor Hix was that referendums should be reserved for "major constitutional questions"[132] rather than "procedural issues"[133], for example he thought all the previous EU amending Treaties—Maastricht, Amsterdam, Nice—should have been subject to a referendum;[134] that voter turn-out would be low on a referendum on a procedural passerelle (potentially less than 25%)[135], which would undermine the legitimacy of the result of the referendum;[136] and that voters who did turn out would be unlikely to focus on the particular procedural question but rather on broad policy issues.[137] He made an important point about why a referendum should address a major constitutional question:

"I see a range of issues that I would categorise as being clearly of a fundamental constitutional nature and that, therefore, would only be regarded as legitimate by future generations if they are ratified in some way through a referendum. I think that those questions are inherently and fundamentally significant enough to answer all the other questions that have been raised about whether there would be sufficient turnout, whether there would be a proper debate on the issue, whether people would really form their opinions on the questions that were on the table and so on. I think that they do by their nature."[138]

117. We are concerned whether the Government has considered the important issues raised by Professor Hix. Similarly, it is not clear to us that the Government has considered the potentially profound constitutional implications of the referendum lock provisions for the principles of Parliamentary democracy and direct democracy in the UK. We trust the matter will be addressed by the Minister during the Bill's consideration in Committee.

Potential impacts of the Bill on UK-EU relations?

118. We began this section of the Report by asking what the impact of the Bill might be on UK-EU relations. The evidence we received was mixed. When it came to Treaty revision, Sir John Grant thought that there was such little appetite among Member States for a new Treaty and that the matter was shelved. In any case it was thought unlikely that the UK Government would countenance or want a new Treaty, European Union Bill or not. For Professor Hix, Treaties were not the main problem; in a Treaty negotiation many issues were on the table and it was possible to conclude a package deal. The potential for gridlock lay rather in issue-specific negotiations, should other Member States also adopt domestic constraints on passerelles or the special amendment provisions in the Treaty. It seems clear that whatever the reason for the Bill, strengthening the UK's bargaining position is not its primary purpose. Nevertheless, is hard not to conclude that the Bill is intended to send a signal, even if it is not as strong as to "accentuate British exceptionalism".[139]

EU enlargement and Accession Treaties

119. In addition to the constitutional impact, the political, economic and social consequences of Turkish accession might be thought significant to the UK public. Yet it remains the case that a stand-alone Treaty on Turkish accession with nothing of a constitutional nature added to it would not trigger a referendum. For Professor Hix the reason was political pragmatism. He commented that the Government, "would like Turkey to be a member of the EU, and they would not want the British public to stop it. Such a provision is therefore excluded from the Bill".[140] We agree with Professor Hix; the whole question of excluding the accession Treaties implies that one major item of constitutional change in the EU has been left out of the Bill because it suits the Government to do so, and we regard this as anomalous.

Devolution

120. EU affairs are reserved matters for the UK Government. Neither the Explanatory Notes to the Bill nor the FCO's evidence make reference to the devolved administrations. The submission from the European and External Relations Committee of the Scottish Parliament points out that given the nature of devolution, the powers or competences to be transferred from the UK to the European Union could be ones that have been devolved under the Scotland Act 1998.[141] The impact of the transfer of such powers or competencies might be quite different in Scotland (or other devolved areas) to the UK as a whole. It is not clear that the Government has considered the implications of this and we trust the matter will be addressed by Ministers during the Bill's consideration in Committee.

110 See clause 1(4)(b). Back

111 Q 93 Back

112 Q 55 Back

113 See paragraph 48 of this Report. Back

114 Article 352 TFEU; formerly Article 308 EC. Back

115 E.g. civil protection; energy, see footnotes 45 and 46. Back

116 Para 55 Back

117 Para 57 Back

118 See for example paragraph1 of this Report. Back

119 See paragraphs 21, 41, 61 and, in relation to clause 8, paragraph 82. Back

120 R (on the application of Wheeler) v The Office of the Prime Minister and the Secretary of State for Justice [2008] EWHC 1409 (Admin), as per the dicta of Lord Justice Richards at paragraph 43. Back

121 For example, Ev 76, Q 103 (HC 633-II) Back