Written evidence from Martin Howe QC
1. THE "REFERENDUM LOCK"
1. There is an inherent difficulty under the
constitution of the United Kingdom which affects the provisions
of the Bill which seek to create a "referendum lock".
Under the doctrine of sovereignty of Parliament, the present Parliament
cannot pass an Act which would bind itself or a successor Parliament
to hold a referendum in particular circumstances. It is therefore
inherently impossible (short of a fundamental constitutional change
away from the sovereignty of Parliament to the sovereignty of
a written constitution) for the "referendum lock" in
this Bill to amount to a lock in legal terms.
2. It would be possible to amend the Parliament
Acts 1911 and 1949 to add any Act by-passing the referendum requirements
of this Bill to the categories of Act which would need the assent
of both Houses; but the effectiveness of this safeguard would
depend upon the willingness of the House of Lords (or a future
elected second House) to enforce the safeguard. More radical constitutional
revisions would be needed in order to "entrench" a referendum
requirement.[1]
3. That does not mean that the provisions of
the Bill relating to referendums are without value. Although a
future Parliament could over-ride the provisions of the Bill requiring
a referendum, that would have to be done explicitly and a political
price would have to be paid.
4. Clauses 2 and 3 (in my view appropriately
and correctly) apply the requirement that a treaty change be approved
by Act of Parliament, and the referendum requirement if applicable,
to all amendments of or replacements of the existing European
treaties (TEU and TFEU) regardless of the mode in which such amendment
or replacement is carried out. Thus, whether the amendment or
replacement is under the "ordinary revision procedure"
under Art 48(2)-(5) TEU, the so-called "simplified revision
procedures" under Art 48(6), or by some other procedure outside
these treaty Articles, the restrictions in the Bill will apply.
However, the Bill would not cover treaties which supplement the
existing EU treaties but do not amend them: for example, a treaty
between the UK and other EU member states creating a bail-out
fund to which the UK is obliged to contribute.
5. Clause 5(4) permits the Minister to state
that certain Article 48(6) decisions are not "significant",
in which case the referendum requirement does not apply to them.
Although the Minister's statement in this regard is subject to
judicial review, the limitations of judicial review in this context
should be appreciated. The courts will not substitute their own
view as to whether or not a decision is "significant"
in place of the view of the Minister. It has been said, in the
context of the courts' review of the validity of regulations under
section 2(2) of the European Communities Act 1972, that the courts
are not equipped to assess the importance or unimportance of a
measure and to apply that as a legal standard of validity.[2]
6. However, as I have already pointed out, this
Bill cannot bind the actions of future Parliaments. If this Bill
were to contain no explicit provision exempting "insignificant"
measures from the referendum requirement, that would provide a
pretext for a future Parliament simply to legislate to by-pass
the requirements of the Bill on the ground that the change involved
is too insignificant to justify a referendum. There would then
be no form of control over the judgement of "significance"
involved in such an exercise. Accordingly it is preferable that
the machinery for judging "significance" is provided
for within the Bill so that it is subject to the requirements
of possible judicial review and objective justification, even
if those requirements cannot be perfect. In my view, the only
practical way to strengthen these requirements of the Bill would
be to place the duty to make a statement under clause 5 on an
independent body or committee rather than on a Minister. That
would then require decisions to be made as to the composition
and procedures of such a body and the method appointment of its
members.
2. PARLIAMENTARY CONTROL OVER OTHER EU DECISIONS
AND MEASURES
7. The Bill's provisions in clauses 7 to 10
represent an important and long overdue correction to the balance
between the executive and Parliament. When the European Communities
Act 1972 was passed, the extent to which the legislative machinery
of the EEC transferred law-making powers from Parliament to ministers
was not fully appreciated.
8. In particular, the general power under Art
352 TFEU (originally Art 235 of the Rome Treaty) to legislate
in aid of the objectives of the treaty when the specific legislative
treaty bases have not provided the "necessary powers"
has always been a law-making power of enormous scope. It has been
little short of scandalous that ministers were able to exercise
this sweeping legislative power without a formal legal requirement
for the prior consent of Parliament. It is therefore very much
to be welcomed that clause 8 will subject the exercise of ministerial
power under Art 353 to approval by Act of Parliament.
9. Clause 9, relating to "opt-ins"
to measures under the "Area of Freedom, Security and Justice"
is also to be welcomed. However, there is another, and very important,
"opt in" decision which the Bill does not appear to
deal with. Article 10(4) of Protocol (No 36) on Transitional Provisions
provides that the UK may, within 4½ years of the coming into
force of the Lisbon Treaty, notify the Council that it does not
accept the conversion of existing Third Pillar measures into supranational
First Pillar measures. The consequence of failure to give such
a notification is profound, since such measures will then bind
the UK as First Pillar measures which are fully subject to the
interpretative jurisdiction and coercive powers of the ECJ.
10. It is true that as a matter of formalities,
this is a case where a simple failure to act will result in an
extension of EU competences over the UK, rather than a case where
a positive decision or act is required. However such an extension
of competences is more important than that resulting from many
of the decisions or acts which are covered by the Bill. Accordingly
it seems illogical that the Bill does not provide for Parliamentary
control over this important decision, which must be taken within
the likely lifetime of this present Parliament.
11. In my opinion, the arguments for giving
notice under Art 10(4) at an early stage are strong, since this
would then allow an orderly, progressive negotiated replacement
of existing Third Pillar measures with intergovernmental agreements
between the UK and the core EU states. This would permit, for
example, the replacement of the European Arrest Warrant framework
decision with more satisfactory extradition arrangements. The
alternative of doing nothing would lead by default to this deeply
flawed measure become entrenched (by default) as part of directly
effective, binding and justiciable EU law.
12 December 2010
APPENDIX
PROTOCOL (NO 36) ON TRANSITIONAL PROVISIONS
ARTICLE 10(4), FIRST PARAGRAPH
4. At the latest six months before the expiry
of the transitional period referred to in paragraph 3, the United
Kingdom may notify to the Council that it does not accept, with
respect to the acts referred to in paragraph 1, the powers of
the institutions referred to in paragraph 1 as set out in the
Treaties. In case the United Kingdom has made that notification,
all acts referred to in paragraph 1 shall cease to apply to it
as from the date of expiry of the transitional period referred
to in paragraph 3. This subparagraph shall not apply with respect
to the amended acts which are applicable to the United Kingdom
as referred to in paragraph 2.
1 Such a requirement can be "entrenched"
by a written constitution. For example, Article 6 of the Constitution
of the Republic of Singapore provides that: "There shall
be-(a) no surrender or transfer, either wholly or in part, of
the sovereignty of the Republic of Singapore as an independent
nation, whether by way of merger or incorporation with any other
sovereign state or with any Federation, Confederation, country
or territory or in any other manner whatsoever ... unless such
surrender, transfer or relinquishment has been supported, at a
national referendum, by not less than two-thirds of the total
number of votes cast by the electors registered under the Parliamentary
Elections Act". Further, Article 9 of the constitution provides
that Part III of the constitution containing Article 6 may not
be amended except after a referendum in which a two-thirds majority
votes in favour of the amendment. Back
2
R. (Orange Personal Communications Ltd) v Secretary of State for
Trade and Industry [2001] 3 C.M.L.R. 781.
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