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

Written evidence from Martin Howe QC


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.


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




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.  Back

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