Written evidence from the Foreign and
Commonwealth Office, HM Government
PART ONE: RESTRICTIONS ON TREATIES AND DECISIONS
RELATING TO THE EUROPEAN UNION
What is the meaning of, and difference between,
the terms "competence" and "power" as used
in the Bill? Are "competence" and "power"
as used in the Bill terms that are already recognised under national
law?
1. In its chapter on "Europe", the
Coalition's Programme for Government set out that legislation
would be introduced to ensure that any future treaty which proposed
a transfer of power or competence from the United Kingdom to the
European Union would require the consent of the British people
in a referendum.
2. "Competence" is a term used in
the EU Treaties. The term relates to the Member States' conferral
of a right or ability on the EU to act. In some cases, such as
trade, the EU has exclusive competence to act on behalf of the
Member States. In other areas, such as the environment, the EU
shares the competence to act with the Member States. In some other
areas, such as health protection, the EU can support, coordinate
or supplement the actions of the Member States.
3. Article 1 of the Treaty on the Functioning
of the European Union (TFEU) provides that the TFEU "determines
the areas of, delimitation of, and arrangements for exercising
[the EU's] competences" in respect of that Treaty and the
Treaty on the European Union (TEU). The EU is bound to act within
the confines of the Treaties, as only the Treaties provide the
EU with the "competence" to act in a given area—where
the Treaties do not provide for the competence to act, the EU
cannot act in that area.
4. The nature and extent of the EU's current
competence are set out in Articles 2 to 6 of the TFEU. The EU's
competence can be expressed in the following five ways, as set
out in the Explanatory Notes to the European Union Bill:
| (a) | Exclusive competence, where only the EU can act. The areas concerned are set out in Article 3 TFEU (examples include the customs union and competition rules).
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| (b) | Supporting competence, where the EU can carry out actions to "support, coordinate or supplement" the actions of Member States in certain specific areas, on the condition that the EU action does not supersede the Member States' competence in those areas. The areas concerned are set out in Article 6 TFEU (examples include the protection and improvement of human health; culture and education).
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| (c) | Shared competence, where the EU can legislate in a specific area set out in the Treaties, but where if the EU has not yet acted in a specific area or has stopped acting in that area, the Member States can legislate accordingly. Under Article 4 TFEU, shared competence applies in those areas set out in the Treaties but which are not specified in Articles 3 or 6 TFEU (exclusive or supporting competence).
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| (d) | The Member States shall also coordinate their economic, employment and social policies within the EU; and the EU can adopt measures and arrangements in order to achieve this end. Specific provisions apply to those Member States who use the European single currency (the Euro).
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| (e) | The EU also has competence to define and implement a common foreign and security policy, including the "progressive framing of a common defence policy", though this remains largely subject to the unanimous approval of Member State governments in the Council.
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5. The term "power", unlike competence, is not
defined in the EU Treaties. For the purposes of the EU Bill, a
transfer of power could take place in three ways. Firstly, through
a move in specified areas set out in Schedule 1 of the Bill to
permit qualified majority voting in the European Council or Council
in place of unanimity, consensus or common accord. This means
that a referendum is needed only before the UK can agree to give
up its ability to block or veto legislative proposals made under
any of the specified Articles. It should be emphasised that mere
use of these Articles as a legal basis for proposals for action
will not require a referendum; but a proposal to give up the ability
for the UK to block agreement on a measure using one of these
Treaty articles would require a referendum.
6. The Treaty articles in Schedule 1 cover the following
subject areas, which have previously been viewed by all parties
as sensitive and requiring the maintenance of a UK veto: foreign
policy, defence policy, security and national security policy,
military issues; third country and international agreements; justice
and home affairs; national economic, tax, fiscal, and energy policies;
provisions on the EU budget and financial management of the EU;
citizenship and elections; social, social security and employment
policy; membership issues and enlargement.
7. The second transfer of power in the Bill is any treaty
or treaty change which would confer a power on an EU institution
or body (either an existing institution or a new institution)
to impose a new requirement or obligation on the British Government
or any organisations or individuals in the UK.
8. The third is the conferral of a new power on an EU institution
or body, whether a new organisation or an existing institution,
the ability to impose sanctions on the British Government or any
organisations or individuals in the UK.
9. The UK has previously agreed to confer competence on the
EU (or, in other words, confer on the EU the ability to act) in
a number of areas as a result of the UK's ratification of successive
Treaty changes, most recently that of the Treaty of Lisbon. The
UK agreed to confer on the EEC the competence to act in ways specified
in the Treaties at that time, when the UK joined in 1973. The
statutory provision which permitted the UK to confer competence
on the EEC at that time is the European Communities Act 1972.
10. The term "competence" in the EU context is
not referenced in UK statute law at present (though of course
it would be if, subject to Parliament's approval, the European
Union Bill were to be enacted). However, the spirit of the term
is captured in Acts of Parliament, not least the European Communities
Act 1972:
Section 2(1), European Communities Act 1972
"All such rights, powers, liabilities, obligations and restrictions
from time to time created or arising by or under the Treaties,
and all such remedies and procedures from time to time provided
for by or under the Treaties, as in accordance with the Treaties
are without further enactment to be given legal effect or used
in the United Kingdom shall be recognised and available in law,
and be enforced, allowed and followed accordingly; and the expression
e nforceable EU right and similar expressions shall be read as
referring to one to which this subsection applies."
11. The term "power" in the EU context is referenced
in legislation, not least in the section set out above. However,
these are generic references to powers arising as a result of
the EU Treaties—and yet the term power is not defined in
the EU Treaties. This is the reason why the Government has listed
what it considers to be a transfer of "power" for the
purposes of the Bill.
Are the conditions on which the Minister decides that a Treaty
change or decision amounts to the transfer/extension of an area
of competence or power from the UK to the EU sufficiently clear?
12. The Government is satisfied that the Bill is drafted
as clearly as possible in order for Parliament and the wider public
to understand when a referendum would be required, when a referendum
would not be required, and when the exercise of Ministerial judgement
is required in determining whether a transfer of power or competence
would arise from a Treaty change.
13. There are a number of decisions/Treaty changes which
would require the consent of the British people in a referendum,
with no exercise of Ministerial judgement required. These are
as follows, and are set out in Clauses 4 and 6 of the Bill and
in Schedule 1:
(a) Any decision to give up any one or more of the 50 vetoes
listed in Schedule 1 of the Bill, using either the Ordinary Revision
Procedure or Simplified Revision Procedure, whether Article 48(6)
TFEU or Article 48(7) TFEU (as provided for in clauses 4(1)(k)
and 6(4)(b));
(b) Any decision to give up any of the four emergency brake
provisions provided for in the EU Treaties (as set out in clauses
4(1)(l) and 4(1)(m));
(c) Any decision under Article 42(2) TEU that provides for
a common EU defence (clause 6(2));
(d) Any decision under Article 4 of the Schengen Protocol
that removes the UK's control of its own borders (clause 6(4)(k));
(e) Any decision under Article 86 (1) TFEU that would mean
the UK participating in a European Public Prosecutor (in clause
6(4)(c));
(f) Any decision under Article 86(4) TFEU enabling the European
Council to extend the powers of the European Public Prosecutor,
if the UK is already a participant in that Office (in clause 6(4)(d));
(g) Any decision under Article 140(3) TFEU adopting the Euro
as the currency of the UK (in clause 6(4)(e));
(h) Any decision under the following Treaty articles to give
up specific vetoes without the need to engage in formal Treaty
change:
(i) Article 31(3) TEU on common foreign and security policy
decisions;
(ii) Article 153(2b) TFEU on certain social policy matters;
(iii) Article 192(2) TFEU on certain environment matters;
(iv) Article 312 (2) TFEU on the EU budget multi-annual financial
framework;
(i) Any decision to give up a UK veto if in an area of enhanced
co-operation:
(i) The UK is already a participant;
(ii) Participants of that initiative wish to move to qualified
majority voting, including the UK;
(iii) The area of enhanced co-operation is based on one of
the 50 Treaty articles listed in Schedule 1.
14. Given the Government's intention that this legislation
should provide a sustainable framework under which any future
Treaty changes would be considered, there are other possible transfers
of competence or power over which it is not possible entirely
to remove the element of Ministerial judgement. However, in order
to minimise the level of Ministerial judgement required when considering
whether a transfer of power or competence would occur, clause
4 of the European Union Bill provides a comprehensive list of
criteria against which all future Treaty changes would be judged.
15. The criteria in clause 4 to be used by a Minister to
determine whether a transfer of competence or power from the UK
to the EU would occur are in the following list. However, it should
be emphasised that if any of the decisions in paragraph 14 above
are included in a Treaty change, then a referendum would be required
regardless of a Minister's judgement on the remainder of the Treaty
change:
(a) the extension of the objectives of the EU as set out in
Article 3 of the TEU (any expansion of the list of objectives
in Article 3, whether in Article 3 or elsewhere in the Treaties,
would trigger a referendum);
(b) the conferring on the EU of a new exclusive competence
(for example, a proposal to move an area of existing competence
shared between the EU and the Member States into exclusive competence
of the EU);
(c) the extension of an exclusive competence of the EU;
(d) the conferring on the EU of a new competence shared with
the member States;
(e) the extension of any competence of the EU that is shared
with the member States;
(f) the extension of the competence of the EU, beyond what
is already provided for in the existing Treaties, in relation
to:
(i) the co-ordination of economic and employment policies,
or
(ii) common foreign and security policy;
(g) the conferring on the EU of a new competence to carry
out actions to support, co-ordinate or supplement the actions
of Member States;
(h) the extension of a supporting, co-ordinating or supplementing
competence of the EU (for example, any removal of a limitation
preventing the EU from proposing a harmonisation of national rules
under any of the areas of policy in which the EU has a supporting
role);
(i) 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 (for example, a proposal to require Member States to provide
annual data on how Member States' national systems had co-operated
in an area of supporting competence);
(j) the conferring on an EU institution or body of new or
extended power to impose sanctions on the United Kingdom (for
example any extension to the sanctions which could be imposed
on UK businesses under the EU's competition policy).
16. The criteria in the Bill would therefore require that
any transfer of competence from the UK to the EU, regardless of
its size or sensitivity, would require that a Minister lays a
statement before Parliament stating that a transfer of competence
would occur under the Treaty change to be ratified, and would
therefore require the consent of the British people in a referendum
as well as the approval of Parliament by Act. The Minister would
also have to make a statement if no transfer or competence from
the UK to the EU is involved, again giving reasons.
17. The Treaties explicitly state that Article 48(6) TFEU,
the first part of the Simplified Revision Procedure, cannot be
used to increase the competences conferred on the EU; only the
Ordinary Revision Procedure could be used to transfer competence.
It is, in contrast, possible for an Article 48(6) TEU decision
to result in a transfer of power from the UK to the EU and the
Bill provides that any such transfers would, on the whole, require
the consent of the British people in a referendum. It should be
borne in mind throughout that Article 48(6) TEU can only be used
for amendments of Part Three of the TFEU, which relates to internal
policies and actions of the EU. Article 48(6) cannot be used for
any other provisions in the Treaties.
18. The EU Bill provides that the Government would still
be required to analyse any proposal under the Simplified Revision
Procedure to confirm whether any of the criteria in clause 4 of
the Bill would be triggered as a result of the decision in question.
The Bill also provides that an Act of Parliament would be required
to signify Parliamentary approval of any future decision under
Article 48(6) TEU, whereas under the European Union (Amendment)
Act 2008, a proposal under Article 48(6) would only require Parliamentary
approval as a result of a positive vote in both Houses of Parliament.
As the Minister for Europe said in the debate on the Second Reading
of the Bill, "the Government intend to use the provisions
of the Bill for any future treaty change" (HC Deb, column
270), including the limited Treaty change in respect of Eurozone
economic government, which is to be discussed at the December
2010 European Council and is expected to use Article 48(6) as
its base. Under the EU Bill, an Act of Parliament would therefore
be required before the UK could ratify that Treaty change—regardless
of whether competence or power would be transferred from the UK
to the EU.
19. Where the only reason for a proposed decision under Article
48(6) TEU requiring a referendum is that it would, while not transferring
or extending competence, confer upon the EU the ability to impose
new obligations or sanctions on this country (therefore only the
criteria in (i) and (j) in the list above and in clause 4(1)),
we need to be able to distinguish between important and minor
changes. This is where the "significance test" comes
in.
20. It should be emphasised that the significance test only
applies in the following circumstances:
(a) Only with uses of Article 48(6) / Simplified Revision
Procedure. If the Ordinary Revision Procedure is used, then any
transfer of powers regardless of size or sensitivity would automatically
require the consent of the British people in a referendum.
(b) Only where criteria (i) or (j) are involved. If the Article
48(6) decision triggers any of the other criteria (which would
most likely be the giving up of a veto in Schedule 1 given that
Article 48(6) decisions cannot transfer competence), then a referendum
would be required. If any of the decisions set out in paragraph
14 were part of the Article 48(6) decision, then a referendum
would automatically be required.
(c) Only where the Government judges that there is a transfer
of power under criteria (i) or (j). For the significance test
to be applied, there would need to be a judgement that a transfer
of power would take place.
21. If a proposal therefore satisfied these three conditions,
then the Government could examine the proposed transfer of power
and decide whether that transfer would be significant or not,
and set out the conclusions of this examination in the statement
to Parliament required by clause 5 of the Bill. If the transfer
is judged to be significant, a referendum of the British people
would be required.
22. If judged not to be significant, then an Act of Parliament
would still be required before the UK could approve that decision,
and during the consideration of that legislation Parliament is
of course able to legislate as it wishes—so if Parliament
took a differing view and thought that the transfer of power in
question should be agreed by the British people, a referendum
could be provided for in that Act. And as with all Ministerial
decisions, it would be possible for a member of the public to
seek a judicial review of the Minister's decision on whether a
proposed transfer of power would be significant.
23. There are therefore three levels of decision provided
for in Part 1 of the Bill:
(a) Decisions where no Ministerial judgement is required;
(b) Decisions where some Ministerial judgement is required,
but where a comprehensive list of criteria will minimise the degree
of discretion available;
(c) In two specific circumstances, decisions where Ministerial
judgement is required to ascertain whether a transfer of power
is significant or not.
Are the distinctions in the Bill between national approval
by referendum, Act of Parliament or Resolutions of both Houses
consistent with the nature of the competence or power being transferred/extended?
24. If the use of an existing Treaty Article would involve
a transfer of power or competence from the United Kingdom to the
European Union, the EU Bill provides that both an Act of Parliament
and the consent of the British people in a referendum would be
required before the UK could agree to its use. Clause 6 of the
Bill lists those decisions which, were they to be exercised by
the EU, would involve such a transfer and would therefore be subject
to the referendum provisions.
25. Where a ratchet clause would transfer competence or power
from the UK to the EU, the Bill provides that a referendum would
be required. There are two categories of decision here:
(a) Where we have decided that giving up a veto is significant,
we need to put a referendum lock over any way of giving up that
veto. This covers:
(i) One ratchet clause allowing any of the vetoes in Part
Three of the Treaty on the Functioning of the European Union which
we have identified as significant to be given up;
(ii) Four of the vetoes relating to foreign and security policy
and some aspects of social policy, environment policy and EU finance
which we have identified as significant and which could be given
up under their own specific ratchet clauses;
(iii) Two ratchets which could allow a veto we consider significant
to be given up while the UK and a smaller group of Member States
are negotiating under enhanced cooperation arrangements.
(b) One-way irreversible decisions which transfer competence
from the UK to the EU. Three ratchets fall into this category.
These are the Treaty articles on taking a decision to join the
Euro, give up border controls, move to a common EU defence, to
allow for the United Kingdom's participation in a European Public
Prosecutor, and then for the powers of that Prosecutor to be expanded
if the UK is participating in that office.
26. There are a number of articles in the existing Treaties
which would allow the Member States to decide together to add
to, or reduce, what can be done within existing areas of EU competence,
but without a change to the voting or legislative procedure. These
provisions would require Parliamentary approval by an Act of Parliament
under the EU Bill, but a referendum would not be required as these
provisions would not result in a transfer of power or competence.
Examples include proposals to add to the list of areas of serious
cross-border crime on which the EU can legislate, or to strengthen
or add to the list of rights of EU citizens already provided for
in the Treaties.
27. Clauses 8 and 9 of the Bill provide for specific Parliamentary
controls over two types of decision: any future use of the so-called
"broad enabling clause" set down in Article 352 of the
Treaty on the Functioning of the EU; and three ratchet clauses
in the field of justice and home affairs. Article 352 TFEU can
be used to adopt measures in order to attain one of the EU's objectives.
It can only do this where the existing Treaties have not provided
explicitly for the necessary powers to do so already, and so long
as the measure concerned remains within the confines of the objectives
of the EU. Because of its enabling nature, it can be used for
a broad range of proposals. It is an Article in whose use the
Parliamentary Scrutiny Committees take great interest. So, as
in Germany, the Government proposes that in principle any future
use of Article 352 would need Parliamentary approval by Act of
Parliament before the Government could agree to that use in the
Council.
28. However, the Government recognises that there are measures
agreed under Article 352 which either satisfy an urgent need,
or which are substantially the same as previous measures agreed
under Article 352 or its predecessor article, Article 308. One
example is a decision to extend a programme setting up anti-counterfeiting
measures for the Euro in one country to run in another country—the
substance of the programme is identical, but a separate decision
is required to run the programme in the second country. In order
therefore not to waste Parliamentary time by introducing repeated
Bills for measures which are genuinely urgent or which have already
been approved, the Government has adopted a workable approach
and have provided a small number of exemptions in clause 8 of
the Bill to avoid this.
29. The UK benefits from a Protocol in the area of freedom,
security and justice, which allows the Government to decide on
a case-by-case basis whether to opt into a JHA measure or not.
Because of this, and to allow the UK to be able to opt into a
negotiation, the Government has made provision for a two-stage
Parliamentary approval process in the Bill in respect of the three
JHA ratchet clauses. Firstly, a motion would need to be approved
in both Houses before the Government could opt into one of these
measures. Once the negotiation had then taken place on the proposal
and it was acceptable to the Government, an Act of Parliament
would then be required before the Government could agree finally
to the proposal in the Council.
30. Some proposals will require a vote in both Houses of
Parliament under the EU Bill and these are provided for in clause
10. These are mostly articles which modify the composition or
rules of procedure or the statutes of existing EU institutions
or bodies. Examples include proposals enabling the General Court
of the EU Court to organise its workload by establishing specialised
chambers to deal with certain types of cases, or proposals which
change the rules of the European Investment Bank.
31. Four of these decisions in clause 10 are not subject
to unanimous agreement in the Council, which means the UK could
not veto the exercise of the decision. Therefore, if an Act of
Parliament were to be required before the UK could agree to a
proposal in Council, we could find that a vote could take place
in Council before the Bill could be introduced or while the Bill
was being considered by Parliament - and either the UK would be
outvoted in Council during the passage of the legislation, or
otherwise the UK would not be able to stop the decision being
adopted.
32. It would therefore be a waste of time and money to have
an Act of Parliament on these decisions; but given their subject
matter, the Government nevertheless believes that these Articles
should be subject to an additional level of Parliamentary control
and so a vote in both Houses represents a practical solution.
Are there areas of extension of competence and/or conferral of
power which are not covered in the Bill?
33. The competences of the EU are set out explicitly in the
EU Treaties. Any extension to the EU's competence can only be
achieved through Treaty change, and both methods of Treaty change
are captured by this Bill. The Government is also clear that transfers
of power not already provided for in the Treaties can happen only
as a result of Treaty change, or as a result of the use of certain
decisions in the existing Treaties, for which provisions have
been included in clause 6 of the Bill.
34. It has been argued that the new exercise of an existing
EU competence is in effect a transfer of power, in a case where
the EU has not yet acted in a given policy area and is doing so
for the first time. However, the exercise of a competence is not
the same as the extension of a competence. This Bill does not
provide for a referendum on individual EU proposals where EU action
is already permitted by the Treaties, whether or not the competence
to act has yet been exercised by the EU; because the competence
has already been provided for in the Treaties as agreed by all
Member States. In practical terms, if proposals do not require
Treaty change or a change under Article 48(6), we consider that
the EU has already been conferred the competence to act by the
Member States. The only exceptions to this principle are the provisions
in clause 6, in respect of any proposal to participate in the
European Public Prosecutor, or agreement to the formation of a
common EU defence.
35. It has been argued that the process of opting into a
measure in the area of freedom, security and justice, in which
the UK benefits from an opt-in Protocol, is tantamount to a transfer
of power. All measures in this area are examples of the exercise
of the EU's existing shared competence, as provided for in the
Treaties that have already been negotiated and ratified by all
Member States. The United Kingdom's Protocol, and full ECJ oversight
of measures in the area of freedom, security and justice are both
provided for under the existing Treaties. This is not altered
by the exercise of a UK opt-in, and as such are not transfers
of power from the UK to the EU.
36. The justice and home affairs provisions covered by the
EU Bill are distinct because either they are ratchet clauses which
would add to what can be done within existing areas of EU competence
(for example, by adding to the areas of serious cross-border crime
on which the EU can act), or are deemed of fundamental importance
because of their potential impact on the UK legal system (for
instance, the creation of a European Public Prosecutor).
37. The suggestion has been made in the past that competence
can be expanded by the judgments of the Court of Justice of the
European Union. However, when reviewing EU legislation the Treaty
is explicit that the CJEU must act within the limits conferred
upon it, and have regard to the competences conferred upon the
EU under the Treaties. It is wrong to suggest that the Court has
always taken an expansive interpretation of existing competences.
There have been previous rulings rejecting assertions from the
European Commission that the EU had had competence that the Treaties
did not, in reality, confer upon the EU.
38. Similarly, it has been argued that "competence creep"
remains an issue. The Government is clear that the limits of EU
action are clearly defined in the EU's Treaties and can only be
amended through Treaty change or through the use of specified
decisions, on which the EU Bill makes provisions to ensure an
appropriate level of Parliamentary and public control. Moreover,
the Government assesses every proposal for new EU legislation
against the competences set out in the Treaties. This Government
will resist strongly any proposal that seeks to go beyond the
competences conferred on the EU by the Treaties, including by
escalating the issue for example at the European Council, and
by taking cases to the Court of Justice to the EU.
Is it clear what a Minister must take into account when deciding
whether "in his opinion" a proposal under Clause 4(1)(i)
and (j) is "significant"?
39. It would of course be a judgement on the part of the
Government of the day as to whether a proposed Article 48(6) decision
fulfilled one or both of criteria (i) and (j) in clause 4(1) on
which the significance test would apply, and no other criterion
in that list, and then whether they felt that the proposed transfer
of power would be significant or not. The significance test only
applies to two of the cases listed in Clause 4, and only when
a decision under Article 48(6) is being taken. It is important
to note that this means that any transfer of power under Clause
4(1)(i) and (j) to which the significance test will be applied
would be within existing EU competence. Article 48(6) cannot be
used to increase the competences conferred on the Union in the
Treaties (though the Bill provides safeguards to ensure that Article
48(6) decisions are still tested to ensure that they do not breach
that requirement).
40. It is not possible to set down clear criteria in the
Bill on how significance is to be judged, because significance
depends not just on the nature of the power, but also on the subject
area, the way in which the new power is to be used, the potential
impact upon the UK and the context in which the power is to be
exercised. The Bill does however require the Minister of the day
to give reasons for their opinion on significance.
41. It would of course be a judgement on the part of the
Government of the day to ascertain whether a proposed Article
48(6) decision fell within the two criteria on which the significant
test would apply, and then whether they felt that the proposed
transfer of power would be significant or not.
42. However, one possible example of a transfer of power
might be considered significant is where the Commission would
be given a new ability to compel EU businesses to do something
which would increase burdens upon British businesses. One possible
example of a transfer of power that might not be considered significant
is perhaps where the Commission would be given the ability to
compel Member States to provide annual updates on how their national
systems were co-operating with those of other Member States in
a field of supporting competence.
How far in practice would such a decision [on significance
in the case of relevant decisions under Article 48(6) TEU] be
amenable to judicial review? How far is a decision whether or
not to hold a referendum a legal question, amenable to judicial
review, and how far a political question?
43. To the extent that a judgement on whether or not to hold
a referendum according to the provisions of the EU Bill rests
with the Government of the day, it would be for a Minister of
the Crown to make an assessment as to whether the proposed Treaty
change or decision fulfilled one or more of the criteria in the
Bill, and to set out their analysis, decision and reasoning in
a statement to be laid before Parliament within a period of two
months after the relevant decision at EU level. As set out above,
a number of decisions would not require the exercise of Ministerial
judgement, and those that would are governed by a comprehensive
set of criteria as set out in clause 4 of the Bill.
44. Ministers will have to take a definite decision on whether
any use of the Treaties' ordinary or simplified revision procedures
would transfer power or competence from the UK to the EU, and
therefore whether a referendum would be required as a result of
the provisions of the EU Bill. As with all formal Ministerial
decisions, the decision taken in accordance with Part 1 of this
Bill can be subject to judicial review before the Court.
45. It is of course up to the Court to determine whether
a challenge should be heard, and if so, when to hear the challenge
and whether the challenge should be upheld. Requests for judicial
review should ordinarily be brought within three months of the
statement being laid before Parliament in accordance with the
provisions in clause 5. A judicial review would be likely to consider
the reasonableness of the Minister's reasoning in the published
statement, and whether the obligations set out in the EU Bill
have been complied with.
46. As set out in the Explanatory Notes to the Bill, once
the statement is laid before Parliament, the Government would
then be required to prepare and introduce a Bill to Parliament
at an appropriate stage in the legislative programme, which would
provide for the approval of the Treaty change, and where relevant
the provisions enabling a referendum of the British people to
be held.
What might be the effect of Part 1 of the Bill on the UK's future
relationship with the EU?
47. The Government believes that membership of the EU is
in the national interest of the United Kingdom. We remain committed
to playing a strong, positive and active role in the European
Union, and to pursuing a range of objectives for EU action. We
want an open external market, and so support the negotiation of
new EU Free Trade Agreements with key trading partners (for example
with India, China and South Korea). We want to strengthen and
expand the single market, including the energy market, in order
to deliver growth. We want to promote a resource efficient, low
carbon EU economy. And we want to work through the EU to achieve
our international objectives.
48. But many people feel disconnected with the decisions
that have been taken in their name by the Government on the European
Union. The European Union Bill is part of the Government's wider
objective to transfer power back from Government to the people,
and seeks to restore trust and enhance the democratic accountability
of the EU among the British people; to help ensure that the British
public are engaged and active participants in the UK's future
within Europe. Part 1 of the Bill proposes to use referendums
and a strengthening of the role of Parliament in order to encourage
the restoration of trust and the enhancing of Parliamentary and
popular accountability.
49. There is nothing in the EU Treaties that puts any constraints
on Member States in respect of their choice of domestic procedures
for determining how their Governments should cast their votes
in the Council or European Council, or indeed the "constitutional
requirements" by which a Treaty change should be considered
domestically before ratification by the Member State. There is
nothing in the EU Treaties which implies that the UK has to agree
to any passerelle provision or Treaty change, or that places any
constraint about the way in which the UK decides how to vote.
Indeed, the EU Treaties allow for the Member State to take certain
decisions and all Treaty changes back to the Member State's Parliament,
and in many cases the people, to seek their consent before the
change is approved or ratified.
50. As Jean-Claude Piris, former Head of the Council Legal
Service, set out in his evidence to the Committee last month,
"It is undoubtedly for each Member State to determine the
constitutional mechanisms through which it gives effect to [the]
legal obligations [provided for by the EU Treaties]."
51. Although there are differences between the constitutional
frameworks of the United Kingdom and those of our European partners,
a number of other Member States have systems which provide for
referendums to be held in order to consent to Treaty changes or
specific decisions which transfer powers or competence. A number
of Member States, in particular Germany, also have mechanisms
in which Parliament are required to approve any agreement to specified
decisions. The UK would therefore be implementing a set of provisions
which are already embedded in a number of other systems.
December 2010
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