Appendix: Government response
Introduction
1. The Coalition's Programme for Government,
in its chapter on 'Europe', committed this Government to the establishment
of a 'referendum lock' on any future treaty that sought to transfer
further competence or power from the United Kingdom to the European
Union. It also set out that the use of any passerelle
(or 'ratchet') clauses in the existing EU Treaties would be subject
to an Act of Parliament.
2. In a Written Ministerial Statement to Parliament
on 13 September 2010, David Lidington MP, the Minister for Europe,
said,
"The Government will introduce a Bill, which
would require that:
(a) any proposed future EU treaty, agreed by all
EU Member States' Governments, including the UK Government, which
sought to transfer areas of power or competence from the United
Kingdom to the European Union would be subject to a referendum
of the British people; and,
(b) the use of ratchet clauses or passerelles, provisions
in the existing EU Treaties which allow the rules of the EU to
be modified or expand without the need for a formal treaty change,
would require an Act of Parliament before the Government could
agree to its use."[1]
3. The Government introduced the European Union Bill
into the House of Commons on 11 November 2010. The House of Commons
European Scrutiny Committee immediately announced that it would
conduct an inquiry into the Bill, split into two parts.
4. The Government submitted written evidence to the
Committee in respect of the first part of the inquiry, focussed
on clause 18 of the Bill, on 29 November 2010. The Minister for
Europe gave oral evidence to the Committee on 6 December 2010
in respect of both parts of the inquiry; and the Government submitted
written evidence on the second part of the inquiry, focussed on
Part 1 of the Bill, on 15 December 2010.
5. The Government's response to the Committee's report
on clause 18, published on 7 December 2010, was sent to the Committee
and published the day before the consideration of clause 18 in
Committee Stage, on 10 January 2011.
6. This response concerns the Committee's Report
on the EU Bill: Restrictions on Treaties and Decisions Relating
to the EU (Fifteenth Report of Session 2010 -2011), published
on 20 January 2011. As with the response to the previous report
on clause 18, this response has been produced in a shorter time
period than the usual two months in order that the Committee and
other Members can review the response before the remaining stages
of the Bill's passage through the House of Commons. The reply
takes the form of responses to the evaluation and conclusions
in Chapter 6 of the Committee's report, as well as addressing
a number of additional points raised in the review of the Bill
in Chapter 3.
Response
Issue 1: The likelihood of referendums being held
pursuant to Part 1 of the Bill
7. The Committee makes the following points in its
report:
"It is unlikely 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."
(Paragraph 91)
"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."
(Paragraph 92)
"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." (Paragraph
93)
"It is in reality unlikely that most of the
Treaty provisions which attract a referendum under the Bill will
ever successfully be invoked." (Paragraph
95, first indent)
8. The Government agrees that a treaty change under
the Treaties' Ordinary Revision Procedure, which would trigger
a referendum under clause 2, should not be negotiated during the
lifetime of this Parliament. This Government has resolved not
to agree to any Treaty changes which transfer power or competence
from the UK to the EU for the duration of this Parliament.
9. An Accession Treaty may, however, be concluded
and therefore require Parliament's approval by means of an Act
during this Parliament. We would not expect, or accept, an Accession
Treaty which would include any transfers of competence or power
from the UK to the EU.
10. Nevertheless, the Bill requires that all Accession
Treaties be carefully scrutinised by Government and Parliament
to ensure that they do not transfer power or competence from the
UK to the EU. All Accession Treaties would still require a statement
to be made by a Minister of the Crown in accordance with clause
5, and require Parliamentary approval by Act of Parliament. In
the unlikely event that an Accession Treaty included a transfer
of power of competence from the UK to the EU in the future, the
British people's consent in a referendum would also be required.
11. We welcome the acknowledgement in the report
that, "if and when an ordinary revision were to take place
… it would be likely to require a referendum under one or
several of the subsections in clause 4."
12. We agree that the Simplified Revision Procedure
provided for in Article 48(6) TEU, a provision first introduced
by the Lisbon Treaty, is likely to be used more frequently than
the Ordinary Revision Procedure. This is why we have provided
for the same process of Parliamentary, and where relevant public
control, to ensure that any uses of the Simplified Revision Procedure
are considered carefully and assessed thoroughly as to whether
any such change would involve a transfer of power or competence
from the UK to the EU.
13. As some other witnesses have made clear, the
Simplified Revision Procedure should not, according to the Treaties,
be used to increase the competence of the EU. However, we are
not taking this for granted. We want to ensure that all decisions
under either the Ordinary or the Simplified Revision Procedures
receive the same level of consideration. Therefore, every Article
48(6) decision — including the one to be taken in March
in relation to the Eurozone — will need to be assessed by
the Government to ensure that it does not transfer either power
or competence from the UK to the EU. And Parliament will have
the opportunity to test that assessment as a Bill will be required
before the Government can approve an Article 48(6) Decision.
As is explained later in this response, the determination of how
the UK scrutinises and ratifies such decisions, and treaty changes,
is for the UK alone, and not for the institutions of the EU.
14. With regards to paragraph 93 of the report, this
Government certainly does not want to give up any of the vetoes
included in the referendum lock. However, we want to ensure that
the people have their say should any future Government decide
it wishes to surrender one of these vetoes. We therefore think
that the referendum lock on the general and the individual ratchet
clauses specifically cited in the Bill do have a purpose.
15. In response to the point raised in footnote 13
of the Committee's report, the Government does consider that the
loss of any "emergency brake" in subsection 4 (1)(l)
and (m) would amount to a transfer of power, and that an Act of
Parliament and a referendum would be required before the UK could
approve any removal of the "emergency brake".
Issue 2: Exceptions to the referendum requirement
— significance,
exemption and judicial review
Significance
16. The Committee's report makes the following comment
at paragraph 97:
"We seek clarification from Government on
what circumstances the imposition of new obligations or sanctions
would be considered insignificant."
17. The 'significance condition' in the Bill can
only be used in very specific circumstances. Clause 4 identifies
thirteen instances where a treaty change that transfers competence
or power from the UK to the EU would attract a referendum. The
significance condition only applies to two of these, and only
in respect of a decision taken under Article 48(6) TEU (the Simplified
Revision Procedure). It cannot be used for Treaty amendments
adopted using the Ordinary Revision Procedure.
18. Article 48(6) decisions could seek to confer
on an EU institution a power to require the UK to act in particular
way, or to impose sanctions on the UK for their failure to act
in a particular way. Although this should only be done within
existing areas and the existing extent of EU competence, it would
enable EU institutions or bodies to use those competences differently.
An Article 48(6) decision to do this would, under the provisions
of the EU Bill, usually require a referendum to be held. For
example, a proposal to allow an EU agency to impose sanctions
on a national regulator, or to compel British businesses to do
something which would increase burdens upon British businesses
unnecessarily, would require a referendum to be held.
19. However, there may be instances where an Article
48(6) decision might confer a new power on a body in an area where
there would be no significant impact on the UK. For example,
a requirement for a national regulator or other national body
to provide an EU agency with statistics. In this instance, the
impact on the UK may be minor, and we believe that is something
most people would accept ought to be left to Government to decide,
subject to scrutiny by Parliament which of course would still
have to authorise the Article 48(6) decision by Act. In all instances
a proposal would need to be thoroughly analysed, and we have ensured
that any use of the significance condition would be subject to
effective Parliamentary, and possibly legal, scrutiny.
20. Martin Howe QC wrote on the ConservativeHome
weblog on 2 January 2011:
"I positively welcome the fact that the Bill
contains machinery under which a referendum need not be called
if certain kinds of transfer of power are judged not to be 'significant'."
Exemption
21. The Committee's report make the following statements:
"The scope of the 'exemption condition' is
similarly unclear." (Paragraph
99)
"… codification of practice … 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."
(Paragraph 99a)
"… any provision that applies only
to other Member States… 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." (Paragraph
99b)
"… 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…" (Paragraph 99c)
"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."
(Paragraph 103)
"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, 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." (Paragraph 106)
"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." (Paragraph
119)
22. We considered the drafting of the provision on
codification very carefully, as we share the Committee's concern;
namely that codification could be used as a vehicle for transferring
power or competence from the UK to the EU, and that therefore
this provision could potentially provide a loophole to allow such
a transfer under a future Treaty change without a referendum.
23. We are confident that the provisions on codification
in this Bill will only apply to treaty changes which are genuine
codifications, and will not in any way weaken the fundamental
requirement that a referendum must be held before the UK can agree
to any treaty change which transfers power or competence from
the UK to the EU.
24. It may help to give an example of a treaty change
which we do not consider to be codification. Under the Lisbon
Treaty, Article 189 TFEU provides the EU with an explicit legal
basis "to draw up a European space policy". It goes
on to specify that:
"To this end, it may promote joint initiatives,
support research and technological development and co-ordinate
the efforts needed for the exploration and exploitation of space."
25. This extends the previous competence used for
the Galileo programme, which was based on treaty provisions concerning
research, technological development and industry; and therefore
was not a simple codification. Had the EU Bill been in place at
the time of the Lisbon Treaty, this extended competence would
have triggered a referendum before the Government could have ratified
the Treaty.
26. An example of a treaty change which we do consider
to be a simple codification would be the introduction of a separate
legal base for action previously taken to provide macro-financial
assistance to some third countries. Article 352 TFEU, the 'enabling
clause', was used in April 2004 to provide macro-financial assistance
to Albania. It was then used a further seven times to provide
macro-financial assistance in a similar way to other countries.
The Lisbon Treaty provided a new specific legislative base under
Articles 212 and 213 TFEU to cover economic, financial and technical
cooperation with third countries which, in effect, codified this
existing practice. The Lisbon Treaty would have required a referendum
on many other grounds as a result of this Bill, but this particular
change was a genuine codification and, on its own, would not have
triggered a referendum.
27. The Government believes that genuine codification
is not a transfer of power or competence. The EU competence in
question already exists and the EU has already acted to that effect.
Even if the UK blocked an attempt to codify existing practice
by means of a treaty change, this would not prevent the continuing
use of the relevant existing competence.
28. However, the Government considers it vitally
important that claims that a certain treaty change or Article
48(6) decision merely codifies and does not extend existing competence
are thoroughly tested and scrutinised. This Bill provides for
that rigorous examination, and a Minister would need to set out
his or her reasoning to Parliament in the statement required by
clause 5 of the Bill. Parliament would then still need to approve
the Treaty change or Article 48(6) decision by Act of Parliament.
29. On the question of the impact of Treaty changes
or Article 48(6) decisions on the UK, we agree that the UK should
be able to consider whether and how such a treaty or decision
would have an impact on the UK. In relation to the ongoing discussions
on the use of the Simplified Revision Procedure in connection
with the European Stability Mechanism for the Eurozone, that is
what is happening. The Prime Minister has British interests very
much to the fore. As he told the House of Commons on 20 December
2010:
"No one can doubt ... that stability in the
Eurozone is in our interests. Nearly half our trade is with the
Eurozone. London is Europe's international financial centre.
And no one can deny that the Eurozone faces very real challenges
at the moment. We want to help the Eurozone to deal with the
issues it faces … Part of that is a permanence mechanism
for assisting Eurozone countries that get into financial difficulty.
Enabling Eurozone countries to establish such a mechanism is
in our interests."[2]
30. We also believe that Parliament should have much
greater opportunity than it does at present to consider the impact
of Article 48(6) decisions, whether or not they involve a transfer
of power or competence from the UK to the EU. That is why we have
included in clause 3 of this Bill the provision that the minimum
level of scrutiny of any treaty change or Article 48(6) decision
will be an Act of Parliament. That is why the Prime Minister
told the House of Commons on 20 December, in relation to the Article
48(6) decision on the European Stability Mechanism that the European
Council is scheduled to agree on March 2011, that:
"If this Treaty change is agreed by all Member
States, then its ratification in this country will be subject
to the terms of our EU Bill and so will be subject to primary
legislation."[3]
31. Where a treaty change or Article 48(6) decision
would not transfer any power or competence from the UK to the
EU, it is not appropriate for the UK to hold a referendum. For
example, the UK is not in the Eurozone and this Government has
no plans to join the Eurozone. It would therefore be inappropriate
to have a referendum on a treaty change or Article 48(6) decision
that would only affect how the Eurozone operates. It would be
similarly inappropriate for other Member States to hold a referendum
on issues which would affect us but not them, for example in order
to approve whether or not the UK could opt in or opt out of justice
and home affairs measures. In the event that any future Government
thinks it would be in the UK's interest to join the Eurozone,
the EU Bill requires that the British people must first give their
consent to Eurozone membership in a referendum. In the process,
it would be vitally important that the British people were made
fully aware of all the implications of joining the Eurozone.
32. Also, provided the accession of any new Member
State does not involve any transfer of power or competence from
the UK to the EU, there will be no referendum on Accession Treaties
under the provisions of the EU Bill. Accession Treaties do not
transfer power from the UK to the EU; they transfer power from
the acceding country to the EU, and normally only concern adjustments
to the composition of institutions and bodies to accommodate representation
from the new Member State(s).
33. However, if an Accession Treaty included a provision
or Protocol, possibly unconnected with enlargement, which would
result in a transfer of power or competence from the UK to the
EU, a referendum would then be triggered. The chances of this
happening are extremely low. Under Article 49 TEU Accession Treaties
may only make "adjustments" to the TEU and TFEU, not
"amendments". Furthermore, we believe that the accession
of a new Member State to the EU, such as Croatia, should be judged
on its own merits and not combined with some other unrelated Treaty
change during ratification.
34. It is worth making a general point here in relation
to all of the exemption criteria. Under this Bill, all proposed
Treaty changes or Article 48(6) decisions would require an analysis
by the Government of whether it involved any one of the criteria
in subsection (1) of clause 4. A statement to that effect, with
reasons, must be laid before Parliament within two months of the
relevant decision at EU level, in accordance with clause 5. The
existence of subsection (4) of clause 4 does not remove the obligation
on the part of the Government to make this statement and to conduct
this analysis. Ministers must still assess if a Treaty change
or Article 48(6) decision would or would not transfer power or
competence from the UK to the EU, and explain this reasoning in
a statement to Parliament.
35. If a Minister decided that there would be no
transfer of competence or power according to the criteria in clause
4(1), and that a referendum is not needed, Parliament would still
need to pass an Act approving that Treaty change or Article 48(6)
decision, before the Government could agree to that change. Parliament
would have the opportunity to scrutinise the Minister's assessment
during the progress of the Act, and could add a referendum requirement
at that stage if it disagreed. Furthermore, as with all Ministerial
decisions, the reasoning would be subject to legal challenge.
36. The exemption condition and clause 4(4) do not
provide any discretion for a Minister to consider a provision
exempt from the referendum requirement where any of the criteria
in clause 4(1) apply. They are designed only to apply where there
is no transfer of competence or power from the UK to the EU under
a treaty change or Article 48(6) decision.
Judicial review
37. The report makes the following points:
"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." (Paragraph
98)
"We conclude that recourse to judicial review
is a more illusory safeguard than the Explanatory Notes imply."
(Paragraph 104)
"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." (Paragraph
105)
38. We are confident that the provisions of the EU
Bill would provide the pre-conditions to allow for judicial review
in the Courts, in order to determine whether or not a Minister
had acted reasonably in complying with the obligations of the
Bill. The Bill requires the Minister to set out his or her assessment
clearly in the statement to be laid in accordance with clause
5, including by reference to the criteria in clause 4. The statement
would provide the basis on which a judgement could be made as
to whether or not the Minister's decision is reasonable.
39. We cannot, however, give an absolute guarantee
that a court would grant judicial review, or that a case would
find against the Minister's assessment. It is up to the courts
to decide whether or not a challenge would be heard, when to hear
it and whether or not that challenge should be upheld. Nevertheless,
we do believe that by being as clear and explicit about the criteria
for a referendum as we have been in the Bill, and by specifying
the requirement to set out the Minister's reasoning in a statement
in the way we have done in clause 5, this will maximise the chances
of judicial review.
40. Professor Paul Craig said in his evidence to
the Committee:
"The EU Bill is framed in mandatory language.
The holding of a referendum is not a matter within the discretion
of the Government. It must be held where mandated, subject to
the exemption condition, the significance condition, and clause
4(4). This suggests amenability to judicial review. This is more
especially so because there will often be no plausible argument
that the exemption condition applies, given the breadth of clause
4, and the significance condition can only serve to deny a referendum
in very limited circumstances concerning clause 4(1)(i) and (j)."
41. Martin Howe QC has also said in relation to the
statement required under clause 5 that:
"That ministerial decision would be subject
to judicial review. Although the courts would be likely to give
a Minister a wide ambit on exercising this kind of judgement,
it would not be unlimited."[4]
Issue 3: Further 'gaps' in the control mechanisms
of Part 1
Extensions of EU competence in criminal law
and procedure and family law
42. The Committee's report makes the following points:
"To be consistent with extension of shared
competence under clause 4(1)(e), the application of both [Article
82(2)(d) TFEU and Article 83(1) TFEU] 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." (Paragraph
108)
"Article 81(3) of TFEU… 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." (Paragraph 109)
43. We do not subscribe to the view that referendums
are suitable for approving the use of these three ratchet clauses,
whether in respect of an opt-in from the outset, or post-adoption.
These ratchet clauses already form part of the existing Treaties
and we have been clear that we are not revisiting the existing
Treaties. The Bill provides safeguards for exercising these existing
clauses, providing that an Act of Parliament would be required
to approve the UK's adoption of any agreement to use of the ratchet
clause. Furthermore, any use of these ratchet clauses would make
relatively technical changes to EU powers: for example, we anticipate
that the EU may in the next few years propose that the crime of
female genital mutilation should be added to the list of serious
areas of cross-border crime where the EU can set minimum standards
under Article 83(1) TFEU. The UK already has legislation in place
on this crime and it would not be proportionate to subject these
technical questions to a referendum, given the Bill's commitment
that an Act of Parliament would be needed to approve this decision.
44. Under the European Union Treaties as amended
by the Treaty of Lisbon, specifically under Protocol 21 or the
'AFSJ Protocol', the UK has the choice whether to opt-in to any
proposals under these legal bases and any proposal based on the
other articles of Title V of the TFEU. These issues will be considered
on a case-by-case basis, in line with the policy outlined in the
Coalition's Programme for Government. If the UK wished to opt
into the negotiation of a future proposal to add a further area
of serious cross-border crime to the list in Article 83(1) TFEU,
each House of Parliament would first have to agree that it should
do so within the non-extendable three month period in which the
UK must decide whether to exercise its opt-in. Before the UK could
finally adopt such a decision, once the detailed negotiation of
the proposal had taken place, there would first have to be an
Act of Parliament under the terms of clause 9 of the EU Bill.
Should the UK decide not to opt into the negotiations initially,
but later decide to opt into the final measure adopted by the
other Member States, there would similarly need to be an Act of
Parliament before the UK could do so.
45. We think the EU Bill provides for an appropriate
level of control for such decisions, both at the point of deciding
whether to opt in, and at the point of deciding whether to agree
the final text of a decision. It is in line with the Coalition
Government's commitment that 'the use of any passerelle would
require primary legislation.' It is a considerable increase in
the amount of control provided for under the European Union (Amendment)
Act 2008, under which the Lisbon Treaty was approved, as at present
there is no additional Parliamentary control at all for two of
these JHA ratchet clauses.
46. Unlike the other two provisions referred to above,
the ratchet clause in Article 81(3) TFEU only provides for a change
from the special to the ordinary legislative procedure in respect
of measures concerning family law with cross-border implications
which are currently subject to unanimity. We did consider carefully
whether to subject this ratchet clause to the referendum lock.
However, because Article 81(3) TFEU is within Title V —
to which the UK's opt-in Protocol applies — it is in a different
position from the ratchet clauses on social and environmental
policy. In the unlikely event that the EU sought to use either
the Ordinary or Simplified Revision Procedure to move Article
81(3) TFEU to the ordinary legislative procedure, and the UK voted
against and therefore blocked the move, the other Member States
could then use the ratchet clause in Article 81(3) TFEU to switch
the decision-making procedure without UK participation and, 'after
a reasonable period', simply proceed with the measure without
the UK's involvement in accordance with Article 3(2) of the AFSJ
Protocol. If this happened, the UK would of course not be bound
by the proposal in question. The opt-in applying to JHA measures
provides the real safeguard here, and distinguishes this issue
from other areas in the Treaty, such as social and environmental
policy matters.
47. Furthermore, the Treaty itself provides for a
national parliamentary veto over any proposal to use the ratchet
clause in Article 81(3) TFEU — a safeguard that is distinct
from the UK opt-in. Therefore, Parliament has a separate, independent
measure open to it when considering the use of this ratchet clause.
48. Should the UK decide not to opt into the use
of the ratchet clause, but later decide to opt into the final
piece of legislation on family law with cross-border implications
agreed under the ordinary legislative procedure, there would first
need to be the Act of Parliament as this would require, in effect,
the UK opting into the ratchet clause in order to participate
in the decision-making process of the substantive measure. Again,
we think this is the appropriate level of control and a considerable
increase in the simple requirement for a vote in both Houses as
currently required under the European Union (Amendment) Act 2008.
49. On this basis, we conclude that it is not sensible
to put a referendum lock on the use of the Ordinary Revision Procedure
or Simplified Revision Procedure to change the legislative procedure
under Article 81(3) TFEU. A referendum would not have the effect
of stopping a move to the ordinary legislative procedure - and
therefore QMV - for specific individual measures of family law
with cross-border implications. The protection for the UK comes
rather from the ability to determine whether to opt into any such
proposal or not.
50. The ratchet clauses in clause 9 of the EU Bill,
Articles 81(3), 82(2)(d) or 83(1) TFEU, could provide for modification
of the existing Treaties. The decision for the UK to adopt a measure
through any proposed use of the ratchet clauses would be subject
to approval by Act of Parliament. This is quite different from
the ordinary exercise of the UK's opt-in protocol not involving
a ratchet clause. Such ordinary use of the UK's opt-in Protocol
is already fully provided for within the existing Treaties.
Opt-in decisions
51. The Committee states in its report at paragraph
110 that:
"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."
52. The European Union Bill is primarily about greater
public and Parliamentary scrutiny of future Treaty changes and
the use of ratchet clauses. It is not intended to cover the exercise
by the EU of competences already conferred to the EU under the
existing Treaties, except in certain exceptional and specified
cases where the exercise of that competence would have far reaching
consequences, such as — for example — the creation
of a European Public Prosecutor.
53. Given the strict time limits applying to the
UK's decisions to exercise an opt-in, placing a primary legislative
lock or parliamentary resolution requirement on the exercise of
the ordinary opt-in could pose significant practical problems.
The three-month deadline to make the decision to opt-in or not
is not extendable.
54. The Government recognises that these are important
decisions that need proper Parliamentary scrutiny. The production
of the first annual report to Parliament on the application of
Protocols 19 and 21 to the Treaties in relation to EU JHA matters
has provided a useful opportunity to reflect further on the current
arrangements for Parliamentary scrutiny over EU Justice and Home
Affairs decisions and to consider ways to further enhance the
current arrangements for Parliamentary scrutiny of EU JHA matters.[5]
55. As announced in the statement from the Minister
for Europe on Thursday 20 January, the Government has therefore
agreed an important package of measures to strengthen Parliamentary
scrutiny of EU business, including in the important area of Justice
and Home Affairs, which will be elaborated and implemented in
close consultation with the Parliamentary Business Managers and
the relevant Parliamentary Committees. This Government is committed
to upholding the right of Parliament to hold the Government to
account on EU issues and this package will provide Parliament
with further tools to enable it to do this job effectively.
56. The package includes:
- Before making its formal decision
on exercising the opt-out provided within the Treaty of Lisbon
of a five-year transitional period ending in 2014 after which
the infringement powers of the European Commission and the jurisdiction
of the European court of Justice will apply to all unamended police
and criminal justice instruments adopted under the pre-Lisbon
'third pillar' arrangements, the Government commits to a vote
in both Houses of Parliament. The Government will conduct further
consultations on the arrangements for this vote, in particular
with the European Scrutiny Committees, and the Commons and Lords
Home Affairs and Justice Select Committees.
- A written statement to Parliament on all opt-in
decisions to ensure that Parliament is fully informed of the Government's
decision and of the reasons why it believes the decision is in
the national interest.
- Where appropriate and necessary, this statement
may be made orally to Parliament.
- In the Written Ministerial Statement, the Government
also urges the Committee to take full advantage of their existing
right to call a debate on an amendable motion on any opt-in decision
and expresses its willingness to participate in these debates
to ensure full transparency and accountability of opt-in decisions.
- In circumstances where there is particularly
strong Parliamentary interest in the Government's decision on
whether or not to opt in to such a measure, the Government expresses
its willingness to set aside Government time for a debate in both
Houses on the Government's recommended approach on the opt-in.
57. A copy of the Written Ministerial Statement announcing
this package is attached at Annex A.[6]
Enhanced cooperation and internal passerelles
58. The Committee recommends in paragraph 111 of
its report:
"[T]hat a decision by the UK to enter enhanced
cooperation where the voting procedure has been changed from unanimity
to QMV [should] be subject to a referendum lock."
59. If the UK decides to apply to join an enhanced
cooperation arrangement after it has been established and after
it has moved to QMV, then that is an open and clear decision to
participate in a specific enhanced cooperation arrangement, in
the full knowledge of what has already been agreed — that
any future negotiation to amend that legislation will be decided
on the basis of QMV.
60. This is very different from a decision to move
to QMV within an enhanced cooperation arrangement in which the
UK has participated from the outset — and which would result
in a significant change to the arrangement after we had confirmed
our participation. A move to QMV could lead to the unintended
consequence of the UK being outvoted on a final piece of legislation.
61. Any decision to move to QMV in an area of existing
enhanced cooperation in which the UK is already a participant
will be subject to the relevant controls in the EU Bill. Any
decision to join an area of existing enhanced cooperation in which
QMV already applies would continue to be subject to Parliamentary
scrutiny in the normal way. However, the Government will look
at the arrangements for Parliamentary scrutiny of enhanced cooperation
particularly carefully in the review of scrutiny which we have
just announced, and we would be happy to discuss with the relevant
Parliamentary Committees how to further ensure that the scrutiny
arrangements in this area are effective.
62. The provisions in the EU Treaties on enhanced
cooperation include the following:
"Member States which wish to establish enhanced
cooperation between themselves in one of the areas covered by
the Treaties, with the exception of fields of exclusive competence
and the common foreign and security policy, shall address a request
to the Commission, specifying the scope and objectives of the
enhanced cooperation proposed."[7]
63. Some witnesses and academic commentators have
suggested to the Committee that this means that enhanced cooperation
could cover a wide area, and that therefore any move to QMV within
the enhanced cooperation could be significant. If the UK were
therefore to join an enhanced cooperation arrangement which had
already decided to move to QMV, the UK could find itself operating
under QMV for a large part of a sensitive area.
64. We do not consider this to be a credible risk.
Article 20(2) TEU provides that enhanced cooperation is a mechanism
of 'last resort'; there has to have been a concerted effort to
agree a proposal for EU action among all Member States before
enhanced cooperation can be used. In other words, there is a bias
towards keeping as much activity at the level of the entire membership
of the EU as possible, and only moving to enhanced cooperation
where this is really not possible.
65. Enhanced cooperation is also subject to several
conditions. It must not undermine the internal market or economic,
social and territorial cohesion. It must not constitute a barrier
to or result in discrimination in trade, or distort competence
between Member States. It must also comply with the existing
competence of the EU as set out in the existing Treaties and under
European Union law.
66. It has also been suggested that the EU Bill's
provisions related to Schedule 1 will result in an increased use
of enhanced cooperation in those areas, as Member States may seek
to enter into it in an area subject to unanimity without the UK
and then agree to move to QMV within that enhanced cooperation.
However, all of the vetoes included in Schedule 1 and on which
a referendum would be required have long been sensitive in the
UK and, in many cases, in other Member States as well. One only
has to look at the list of UK 'red lines' in previous IGC negotiations.
There is nothing surprising in this list for our EU partners.
As Sir John Grant said in his evidence to the Committee:
"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."[8]
67. There have only been two uses of the enhanced
cooperation provisions since their introduction under the Amsterdam
Treaty in 1999, and these have been on very specific measures
- on divorce law, where the UK has not participated, and on the
European patent where we have indicated that we intend to participate
but reserve the option to withdraw.
Inadvertent breaches of the provisions contained
in Part 1 of the Bill
68. Paragraph 112 of the Committee's report says:
"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."
69. We stand by the response that the Minister for
Europe gave to the Committee on this point, where the Minister
explained the problems with such an amendment. This approach would
introduce enormous uncertainty into the system, which would affect
everyone who has to comply with EU law, whether businesses, organisations
or individuals.
70. However, the Government does take the potential
issue of an EU proposal extending the EU's competences or powers
very seriously. Under this Government, before a Minster can obtain
clearance for a negotiating strategy careful consideration must
be given to whether there is any possibility of an extension of
competence.
71. The Government also intends to look at issues
around competence in our review of the Government's engagement
with Parliament on Parliamentary scrutiny of all European Union
business, which was announced in the Written Ministerial Statement
in Annex A.
Issue 4: Compatibility of Part 1 with EU and international
law
72. Paragraph 113 of the Committee's report says:
"Both M. Piris and Professor Craig 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… we recommend that this be addressed during the Bill's
consideration in Committee."
73. It is for the UK to decide the appropriate national
process under which the UK would consider and conclude whether
to approve treaties or agree to Article 48(6) decisions, as is
the case for all EU Member States. It is not for the European
Union institutions to comment on, or object to that - as European
Council President Herman Van Rompuy stated in response to a question
raised on this point during his visit to Europe House on 13 January
2011.
74. All of the ratchet clauses on which the Government
has proposed approval by Act of Parliament and referendum are
subject to unanimity. There is nothing in either the TEU or TFEU
that puts any constraints on the way in which a Member State decides
how to cast its vote in the Council or the European Council.
The duty of loyal cooperation does not mean the UK has to say
"yes", or place any constraint on the way in which we
could say "no". We would not try to tell any other
Member State how to decide their vote, and we would not expect
them to tell us. The requirements the UK may choose to put into
place before a Minister can vote, or otherwise support certain
decisions, is a matter for national law and not EU law.
75. In response to the points raised by Professor
Craig in his evidence to the Committee, the Court of Justice of
the European Union has a remit to interpret the European Union's
Treaties as they stand, and not to interpret a proposed Treaty
change or decision, prior to ratification or approval of that
decision. The Court does not have the jurisdiction to pass judgement
on how the UK ratifies Treaty changes or decisions.
Issue 5: Article 352 TFEU - the 'flexibility clause'
76. The Committee, in paragraph 114 of its report,
states that:
"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."
77. The Council can use Article 352 TFEU (sometimes
referred to as the 'flexibility' or 'enabling' clause) to adopt
measures in order to attain one of the EU's objectives. It can
only do this where the existing Treaties have not explicitly provided
the necessary powers to do so already, but where nevertheless
the measure concerned is necessary to attain one of the objectives
set out in the Treaties.
78. Because of its nature, Article 352 TFEU can be
used for a broad range of proposals. This means it can and will
be used both for low-impact changes, but also potentially in areas
where there may be concerns over 'competence creep'. Our aim
is to ensure that the appropriate level of accountability and
control is applied to future proposals to use Article 352 TFEU,
to protect against 'competence creep'.
79. However, where legislation based on Article 352
TFEU is equivalent to a previous measure, or prolongs or renews
an existing measure, or extends a previous measure, we do not
think it is a good use of Parliamentary time to require an Act
of Parliament to agree that further legislation as Parliament
will already have scrutinised the previous use of Article 352
TFEU (or its predecessor Article 308 TEC). The use of Article
352 TFEU has already been accepted in respect of its first use,
and if there is nothing novel or new about the proposed subsequent
use, we do not believe that it would be an appropriate use of
Parliamentary time to require such a high level of Parliamentary
control repeatedly, particularly as the proposals will be subject
in any event to the normal Parliamentary scrutiny arrangements
applicable to EU legislation. We have therefore exempted many
of these from the requirement for primary legislation.
80. In these cases, the Minister would be required
under clause 8 to lay a statement before Parliament, explaining
why the proposal related to one of the exemptions in subsection
(6):
a. any proposal using Article 352 TFEU as its
legal base which is, in substance, the same as a previous measure
agreed by the UK;
b. an extension in time of an existing Article
352 TFEU measure, for example a measure that has a three-year
timeframe but on which it is decided to extend the measure for
a further three years;
c. an extension in breadth of an existing Article
352 TFEU measure to incorporate another Member State or third
country, such as a measure that proposes to extend or repeat an
existing training programme in one third country to safeguard
against counterfeiting of the Euro in another third country;
d. any proposal to repeal an existing Article
352 TFEU measure; and
e. any proposal to combine a number of existing
Article 352 TFEU measures into one EU legal instrument or to consolidate
several amendments of an existing measure in one text without
changing the substance.
81. Article 352 TFEU, on its own or in combination
with other legal bases, has been used in the past for urgent or
emergency uses, where rapid EU action has been agreed but where
there was no explicit legal basis in the Treaty on which to base
that action. This facility could prove important in a time of
crisis. For instance, sanctions were pursued against Al Qaida
and the Taliban and individuals or entities associated with them
under Regulations adopted under the predecessor of Article 352
TFEU combined with other legal bases (although in future, with
the Lisbon Treaty in force, such action would now be covered by
a separate legal base).
82. Where such an emergency use is required, it is
still subject to a UK veto, and the Bill still requires Parliamentary
control in the form of a positive vote in both Houses. Furthermore,
where there is a subsequent use of Article 352 TFEU for a similar
measure which does not require urgent action, primary legislation
will be required.
Issue 6: Implementation of the referendum lock
83. The Committee's report makes the following points:
"… 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."
(Paragraph 116)
"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." (Paragraph 117)
84. Evidence from previous referendums in the UK
show that there is popular interest in having a say on important
issues. Turnout figures have generally been comparable with those
for General Elections. This picture is supported by evidence
from around the world. Evidence from Denmark, Montenegro and,
closer to home, Ireland suggests that people will vote on issues
which are important to them. In the UK, people are ready and
eager to debate EU issues; we want to give them that chance.
But it is important to remember that the Coalition Agreement makes
clear that there will be no agreement to any Treaty change or
ratchet clause decision which would transfer power or competence
from the UK to the EU for the duration of this Parliament.
85. We do not subscribe to a view that the British
people cannot be trusted to make informed decisions about important
topics. We believe that they are capable of deciding which facets
of an issue are important to them and not allowing others to set
the agenda. In addition, clause 13 of the Bill provides that
the independent Electoral Commission will have a role in promoting
awareness during any referendum campaign of the specific question
to be voted on, and of the issues involved.
86. We welcome the point raised by Professor Hix
in his evidence to the Committee that,
"A referendum, quite rightly under the rules
of the Bill, can say that it is not about a policy issue, but
about a procedural change that could allow policy in the future."
87. We believe it is right for the people to decide
which competences and powers their Government and Parliament are
able to confer on the EU. Under the EU Bill, a future Government
is only required to put the question of whether to agree to a
proposed extension of EU competences to the British people if
that Government wants to support the extension. If a future Government
knows that it will have to win a referendum first, then it will
need to be sure that a proposed extension of EU competences is
in the UK's interests before it can seek to convince first both
Houses of Parliament, and then the British people, of the merit
of the extension.
88. Professor Dougan suggests that clause 4(1) would
require a referendum for some insignificant issues and would not
require one for some significant issues, without further 'political
judgement'.[9] As outlined
above, in the EU Bill we have applied the significance condition
to only two specific instances in clause 4(1); this was not extended
further in order to ensure a consistent approach under the provisions
of the Bill to transfers of power or competence under this and
future Governments. The remaining parts of clause 4(1) are intended
to capture those areas we consider to be sufficiently important
to attract a referendum, such as any extension of the objectives
of the EU, or the extension of a competence on the coordination
of economic and employment policies, common foreign and security
policy, and other policy areas on which the EU has been given
the power to act. This is intended to ensure that there is no
"wriggle room" for bringing decisions on such important
areas to Parliament and the people.
89. On the point raised in paragraphs 62 to 65 of
the Committee's report that referendums are most appropriate for
areas of constitutional significance, the Government is pursuing
the use of referendums on issues including the UK voting system
and on further devolution to the National Assembly for Wales,
as well as establishing a referendum lock on future treaties or
decisions that transfer power or competence from the UK to the
EU. We believe these to be areas of great constitutional significance
and, particularly on measures such as the UK joining the Euro,
we think that these are decisions that should be put to the British
people in a referendum. By providing that level of public control
we can begin to rebuild trust between the people and their Government,
reconnecting them to decisions made at the EU level.
90. Professor Hix raises a point that it would be
preferable to use a two-thirds majority requirement in Parliament
rather than a referendum condition.[10]
Whilst Parliamentary scrutiny of a range of EU decisions will
be increased as a result of this Bill, a key aim was to give people
more control over decisions made by the Government in the EU in
their name. The Government wants to decentralise the power from
the centre to the British people, giving them a say on big decisions
on the direction of the EU. A two-thirds majority requirement
would remove that, and does not provide a more straightforward
ratification process than the one provided for in the Bill.
Issue 7: Potential impacts of the Bill on UK-EU
relations?
91. The Committee states in paragraph 118 of its
report that:
"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."
92. The Government believes that membership of the
EU is in the national interest of the United Kingdom. We also
believe there is a need for the EU to change and do things in
more efficient and effective ways. We want the EU to be looking
outwards and making a more effective contribution to the world,
rather than being engaged in institutional "navel-gazing".
We are committed to ensuring that the EU and its Member States
are fully equipped to face the challenges of the future, whether
economic, environmental or social.
93. The purpose of the Bill is not to put a brake
on activities at the EU level or UK participation in them. The
Government has been clear that our objective is to increase public
and Parliamentary control over, and the accountability of, UK
decision-making in the EU. We believe that this will ensure that
the British people are engaged and active participants in the
UK's future within the EU.
94. Nonetheless, as the Minister for Europe said
in his oral evidence to the Committee:
"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. [But] 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."[11]
Issue 8: Devolution
95. Paragraph 120 of the Committee's report says:
"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. The impact of the transfer of such
powers or competences 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."
96. The Government has indeed considered carefully
the devolution implications of the EU Bill, and consulted the
Government's own experts on Scottish law and the Devolved Administrations
in the usual way.
97. The provisions of the EU Bill are not intended
to replace or alter the current provisions in either the Memorandum
of Understanding or the Concordat on Co-Ordination of European
Union Policy Issues between the UK and the administrations in
Scotland, Wales and Northern Ireland.
98. Those documents set out clearly the principles
upon which the UK Government engage now, and should continue to
engage, with the devolved administrations in the formulation of
UK policy in this area which "touch on matters which fall
within the responsibility of the devolved administrations".[12]
This would include, for example, proposals for treaty change
that touched on areas of devolved competence, within the context
that the UK Government retains overall responsibility for any
such negotiations. The Government is committed in the Memorandum
to involve devolved administrations "as fully as possible
in discussions about the formulation of the UK's policy position".[13]
1 HC Hansard, vol 515, col 31WS, 13 September 2010. Back
2
HC Hansard, vol 520, col 1187, 20 Dec 2010. Back
3
Ibid. Back
4
Martin Howe QC, http://conservativehome.blogs.com/platform/2011/01/martin-howe-qc-.html. Back
5
Cm 800, published in January 2011. Back
6 p.20. Back
7
Article 329(1) of the Treaty on the Functioning of the European
Union. Back
8
Q104 (HC 682-ii). Back
9
See paragraph 42 of the Committee's report, HC 682 (2010-11). Back
10
See paragraph 81 of the Committee's report, HC 682 (2010-11). Back
11 Q161
(HC 633-iii). Back
12 Paragraph
B4.3 of the Concordat. Back
13 Paragraph
20 of the Memorandum of Understanding. Back
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