Session 2010-11
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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 633-iv

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

EUROPEAN SCRUTINY COMMITTEE

EUROPEAN UNION BILL

WEDNESDAY 8 DECEMBER 2010

PROFESSOR SIMON HIX and PROFESSOR KEN MINOGUE

Evidence heard in Public

Questions 199 - 286

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Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 8 December 2010

Members present:

Mr William Cash (Chair)

Mr James Clappison

Michael Connarty

Chris Heaton-Harris

Kelvin Hopkins

Chris Kelly

Penny Mordaunt

Stephen Phillips

Jacob Rees-Mogg

Henry Smith

Examination of Witness

Witness: Professor Simon Hix, Professor of European and Comparative Politics, Department of Government, London School of Economics and Political Science, gave evidence.

Q199 Chair: Good afternoon, Professor Hix. It is a great pleasure to have you here this afternoon. You may have noticed that despite the-as I described it in the debate yesterday-eerie silence of the BBC, the reality is that a lot of other people are taking a considerable interest, including the House itself. I will ask the first question. How do the referendum and legislative requirements in the Bill compare with corresponding regimes in force in other member states?

Professor Hix: They are completely unique. Several other member states have provisions, either statutory provisions or constitutional provisions, for referendums on major treaty changes-Denmark and Ireland in particular. But in Denmark, the referendum is triggered only if there isn’t a parliamentary vote of a four-fifths majority in favour of treaty reform. So they can override the referendum requirement with a particular oversized majority in the Folketing. In Ireland, the constitutional practice that has now been established is that there is a referendum on any major EU treaty reform.

Several other member states have used referendums in the past for ratifying treaties, but do not have specific constitutional provisions that require them to do that. It has become established practice in France, for example, and I think it will be very difficult in the future for any French Government to deny a referendum. In the Netherlands, following the referendum on the draft constitutional treaty-or the promise of a referendum on the draft constitutional treaty-the expectation is that in the future there will be referendums. Again, I think it will be difficult for a future Dutch Government if there is a significant treaty change.

But no other member state of the EU has introduced any particular requirement, either for the passage of a Bill through Parliament or for a referendum in respect of the items covered under clauses 4 and 6 in the Bill relating to the passerelle clauses or the special amendment provisions in the treaty.

So the assumption is that referendums are really required only for major treaty changes. I am not saying this could not happen in the future; it may well. I think that several other member states might well copy some elements of what the UK is doing, and what the UK is doing in the Bill is being watched closely by several other member states.

Q200 Chair: Thank you very much. In your submission at paragraph 12, you refer to the paradox of weakness-the idea that if there are significant domestic constraints on a Government in international negotiations, then the Government can credibly threaten that an agreement will be rejected domestically if they do not gain sufficiently in those negotiations. As a result, the greater the constraints on domestic Governments in EU negotiations, the more likely they are, you say, to gain in bargains that have to be reached unanimously. Does the research back that up?

Professor Hix: Yes it does.

Q201 Chair: Can it be seen that certain member states punch above their weight as a result of domestic constraints on their Governments in EU negotiations?

Professor Hix: Absolutely. There is plenty of evidence that that is indeed the case. That is indeed the case in the cases of Denmark and Ireland that we just mentioned. Denmark, historically, has done very well out of the EU budgetary bargains and out of treaty negotiations because of the high domestic requirements for the passage of treaty reforms.

You can argue that in the negotiations on the Convention on the Future of Europe, France and Britain strengthened their hands in the midst of the negotiations after the referendums were announced in the two countries. In a sense, France announced that it would have a referendum in response to the announcement that there would be a referendum in Britain, because it perceived very much that if Britain was going to have a referendum, it equally wanted to increase the domestic constraints.

There is plenty of research that has studied exactly what happened in negotiations and how those announcements actually changed the way things were moving in favour of a treaty that is largely perceived in the rest of the continent as quite a British treaty. So, it is interesting how it is perceived very differently in the UK. It seems that a lot of other member states look at it and think that the Brits got a lot of what they wanted in the treaty as a result of these very high promises back home.

Having said that, what I also point out in my written evidence is that there are two conditions with which raising domestic constraints can increase your bargaining position. One is that there aren’t alternatives that the other member states can use to exclude you. If the threshold is very high and you are threatening to veto, they will start to look for other ways to skirt around this. It only really works as a credible threat when there are major treaty negotiations.

I don’t think it works as a credible threat in the passage or the usage of some of the provisions covered by the Bill relating to passerelle clauses, for example, in the treaty. If the UK is expected to have to hold a referendum, and I will come to that in a second, I think that the other member states would then just assume that Britain would not be in favour of it and then also assume that they will have to try and go ahead without the UK. That may well be a good or bad thing from the point of view of the Committee, but I think in practice that will be what will happen.

The other condition is that the threat has to be credible. There is a question about whether it really is credible, because can we really envisage there being a referendum on a lot of these small issues? Can you really expect a referendum on the movement from the special legislative procedure to the ordinary legislative procedure for the passage of an EU carbon tax? I doubt it. It wouldn’t be taken seriously by British Ministers and I don’t think it would be taken seriously by the other member states. So in that sense, it wouldn’t be credible.

Q202 Chair: So following on from your remarks about them punching above their weight, if you are right, why hasn’t there been a growth in the adoption of these domestic constraints by member states? There does not appear to have been.

Professor Hix: Well, there has been. There were many more referendums promised on the constitutional treaty than in any previous treaty ratifications. I think 11 member states were due to have referendums on the constitutional treaty. Once one or two had announced, then they all started to announce. So exactly that happened.

Q203 Chair: Lastly, what is the point at which you get gridlock? How many member states can do this before you get gridlock?

Professor Hix: Well, you don’t get gridlock in a sense with these unanimous negotiations. The reason why you don’t get gridlock and still manage to get an agreement is that not everybody wants the same thing. So each member state will come to the table saying, "These are the three or four things that really are top priority for us"-the equivalent of the British red lines-"and we want a referendum, and the referendum will probably focus on these things so you’d better give us what we want on these issues." The point is that not everybody names the same issues, so you can put package deals together in treaty reforms where you give the Brits what they want on the things they care about, the Czechs what they want in their area and the Irish in their area and so on.

So that is how you manage to get these unanimous deals. It’s going to be harder. The real uncertainty and the uniqueness in the Bill, which is not replicated and we have not seen at all anywhere else so it is hard to generalise from, is the provisions for an Act, or for an Act and a referendum, on the usage of the passerelle provisions in the treaty. There is large uncertainty about the implications of those things for Britain’s position within the EU and, more generally, for the functioning of the EU as a whole.

If other member states copy those sorts of things, what does that mean for these very issue-specific negotiations? Issue by issue by issue there will be gridlock, but in a treaty negotiation there are a whole lot of issues on the table and so you can do a package deal.

Chair: Thank you.

Q204 Chris Heaton-Harris: Is that a bad thing?

Professor Hix: Well, it depends on what you want. If the idea is that you would like to strengthen the hand of the British Government in negotiations-and, of course, that is a worthy thing to do-is requiring a referendum on each of these specific things the way to do it? I am not sure that it is, because I think that most of the other member states would see this as faintly absurd.

There isn’t really going to be a referendum in the UK on each of these relatively small things-and anyway, wouldn’t some future British Government just try to amend the Bill to delete that provision if they were in favour of it, and couldn’t we put pressure on them to do that anyway? After all, a majority in Parliament can’t bind a future majority in Parliament. Yes, there may be a public debate about that, but really would the public take any notice? Would the media take any notice?

My expectation is that if a future British Government are in favour of moving, for example to QMV from unanimity in a particular area such as environment taxes, and they want to move because they feel it is being blocked and there is a policy that they are in favour of, I bet that they would then say, "Let’s just amend the Bill and move it to another part of the Bill where we can just pass an Act of Parliament." So I do not necessarily see it as credible. So it would not strengthen the hand of the British Government in those situations.

Q205 Chair: On the question of what is important and what is not, by any reasonable standards one might have thought that the financial stability mechanism was a massive issue-the Irish bail-out, the possibility of going down the route to Portugal and Spain and so forth. So would you not have thought that that was the kind of thing, because it combines a treaty which were told about in Hungary the other day and it was confirmed yesterday that there is going to be a treaty?

Secondly, there is the question of whether it would be temporary or permanent. In addition, the extension of the prospect of the British taxpayer bailing out Portugal and any other country, including Spain, becomes an extremely big issue. Would you not have expected in those circumstances, given that the Minister said last night that they already intend to operate as if these provisions were in place, that the question of a treaty for extending the financial stability mechanism would be ideal for both the treaty and the referendum?

Professor Hix: Any major treaty reform-if you consider this to be a major treaty reform-

Q206 Chair: I think I said "treaty"; I meant to say "the Act and the referendum".

Professor Hix: Okay, but I think there are other options. The point is whether you feel it is feasible to hold a referendum, how the referendum is going to be seen by the public and whether there is going to be sufficient turnout in such a referendum. If it is on a specific issue that is regarded as relatively technical, I cannot imagine that there would be high turnouts.

Do you want the majority in the Commons to be bound by the outcome of a referendum with a very low turnout? Is it not better to think about some other mechanism that would raise the bar over which a Government have to pass before they can sign up to something like that? There are plenty of other mechanisms for doing that. One thing I mentioned in my evidence is a two-thirds majority requirement in the Commons.

Q207 Chair: We’ll come on to that in a minute.

Professor Hix: Yes, because I can see how a referendum would be a useful tool to give a mandate and resolve a significant issue for a generation, for example. It would bind the hands of a majority in the Commons either one way or the other on a major issue and a major change. I just don’t see how in practice a referendum could do such a thing on a relatively minor issue.

Q208 Chris Heaton-Harris: I wonder whether that is not disproved by what goes on in California and many other American states, which are constantly holding ballots. There are referendums or questions asked about individual political issues, and in California, although there was a dip some five years ago, turnout has never been so high as it is now. So perhaps people quite like being asked questions.

Professor Hix: Okay, if you are asking whether we should fundamentally transform the nature of British democracy into a referendum-based society, I would say yes.

Chris Heaton-Harris: So would I.

Professor Hix: Because I do not like parliamentary sovereignty.

Chris Heaton-Harris: I do.

Professor Hix: But if you think that parliamentary sovereignty is the basis of British constitutionalism, I do not think we should go down the Californian route.

Q209 Chris Heaton-Harris: I think the two can go hand in hand.

Professor Hix: My question back to you would be: if a majority in the Commons take one view and the majority in a referendum take another view, which of those two things is sovereign?

Q210 Chair: The Whips. That is the problem with a two-thirds majority-we have already had this in the debate on fixed-term Parliaments-because in reality a two-thirds majority is not what it seems; it is actually driven by the leadership, which imposes the Whip and generates votes.

If we were to have a referendum on a big enough question, I would accept your point. If, for example, we were expected to pay £30 billion for Portugal and Spain, or whatever, there would be a conjunction of circumstances in which people would be asked a very big question attached to an Act that endorses a treaty. So you’re right to ask the question on the importance of the issue.

When you get a conjunction of enormous economic consequences that follow a decision in the European Union, and you get the problem of whether or not you get it through the House of Commons, perhaps you get a different answer to your question on a two-thirds majority. We will come on to that a bit later.

Professor Hix: Can I say another thing about that? There is a fundamental difference between the way our democracy works and the way democracy works in California. I used to live in California, so I know. California has an election day once a year, and on that day they have a lot of elections and a lot of referendums all at the same time. So there is an established practice of an election day, which is the third Tuesday in November, and that is how it all works.

We don’t have such a political culture or such a political set-up, so I think it will be very difficult and very challenging to set up regular referendum practice in the British environment. If we do set up regular referendum practice, it raises serious questions about the legitimacy of the majority of the Commons versus the legitimacy of the majority of the public. My bet would be that the public and the media would accept the legitimacy of the majority of the public over and above the majority of the House of Commons, which would be the end of parliamentary sovereignty.

Chair: Right. Moving on.

Q211 Jacob Rees-Mogg: Can I just ask something before we move on? I actually agree with your definition of how parliamentary sovereignty comes about. It comes from the British people to the Parliament. Therefore, I don’t think the two are contradictory. They work very neatly, hand in glove. But you have to defend parliamentary sovereignty within each five-year term, which is why it is so important to have referendums if Parliament is trying to give away its base power to Europe.

Professor Hix: If you have a referendum on an issue that results in a no, can the majority in Parliament say yes several months later?

Q212 Jacob Rees-Mogg: That would be absurd.

Professor Hix: You might say that it would be absurd, but what would the courts say?

Chris Heaton-Harris: The courts don’t have to go to the public, whose minds they have changed, to try to regain their vote a couple of years later.

Q213 Jacob Rees-Mogg: Parliament cannot oppose the people.

Professor Hix: I’m with you on that, but I think the courts would take a different view.

Q214 Chair: By the way, there is another factor: you can’t have a referendum without an Act of Parliament in the first place. It is about Parliament, as I said last night, abdicating its position because it realises that it really is not something that should be left to the whim of the Whips or the leadership, and taking the view that this is so large that it should go to the people.

After all, as Jacob Rees-Mogg makes quite clear, ultimately we are representatives of the people and we therefore have the implied-and, I believe, absolute-necessity to go to the people for a referendum if it is impossible to get a decent answer out of the House of Commons.

Professor Hix: I’m with you on that, but I should point out that all the other places that have regular referendum practices-whether it is Texas, California, Switzerland or Italy-have had repeated and ongoing difficult constitutional debates.

California, for example, has seen the courts take one view, the public in a referendum take another, and the majority in the state legislature take a third view, followed by an ongoing debate about which of those three things is sovereign. The courts say, "We protect fundamental rights in the constitution, and they are sovereign." The public say, "We are sovereign, because we are the popular sovereignty." And the state legislature says, "We are sovereign until the end of our term, so we can do what we want."

Chris Heaton-Harris: Which in the American constitution would be right.

Professor Hix: So the question I would be asking is: do we want to go down that route?

Q215 Chair: I don’t think that many people, judging from last night’s debate, were over-enthusiastic, to put it mildly, at the idea of our big constitutional questions relating to democracy being decided by judges, but that is a separate question. Can we move on to the next point, which relates to your example of a referendum on the means for adopting an EU carbon tax?

I don’t know whether you noticed, but the Minister replied: "What the proposition before people would be is that not just for a particular measure to do with carbon tax, but permanently, in the future, decisions about environmental taxation at European level could be taken by qualified majority and the United Kingdom outvoted on measures that would impose new or additional taxes upon the population of the United Kingdom, without the United Kingdom electors being able to get rid of the politicians who had been responsible for imposing them. That seems, to me, to be something that would attract the public to the ballot box."

What do you make of his reply? Are these issues really as low in salience as you suggest? What would you estimate as the turnout in such a referendum?

Professor Hix: I think there is a big difference between a referendum on a procedural issue and a referendum on a policy issue. Any referendum on a procedural issue will ultimately turn into a debate about policy. 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. But inevitably, it would come down to a debate about whether you are for or against a particular policy; about whether that policy is more likely or less likely as a result of the change; and about asking why would we be making this change anyway and what are its policy implications.

I don’t agree with the Minister that it is possible to separate things so neatly to say that it’s not about whether there would be a carbon tax, but about whether or not we could have the possibility of deciding whether we could have a carbon tax plus some other things by QMV or the ordinary legislative procedure. I just don’t think that the public, the media or politicians will be able to have a debate on those terms, because ultimately the public wants to know, "What are the policy implications of this? What am I actually voting on here? What are the consequences of this?" It will ultimately come down to that sort of debate.

Even then, I would be very surprised if, on a specific issue like that, which can be constrained to those narrow issues, you would have a high turnout; I can imagine that it would be a very low turnout-far less than 50%. Potentially, it could be less than 25%. The only way in which it could become larger than 50% would be if it gradually turned into a debate about Britain’s place in the EU. Ultimately, I suspect that the first such referendum would come down to that; it would ultimately come down to a debate, and that is how it will be portrayed in the press and how the public platforms will end up being portrayed. Whether or not that is a good or bad thing is a separate question. My expectation is that that is what will happen.

Q216 Chair: You have just anticipated the next question-exactly and in precise terms. I will ask Chris Kelly to move on from question 4, which you have already answered. Your prescience is so great that you actually got that question completely right. I have no doubt that your answer will be taken on board by all concerned. Chris, would you like to ask the next question?

Q217 Chris Kelly: Professor Hix, what is the experience of referendums in terms of a minimum turnout being required for the result to be regarded as politically binding?

Professor Hix: It varies considerably. In France and Ireland, there were no requirements on that. Switzerland has gradually introduced requirements-not just for turnout, but for certain majorities; I mean majorities of people plus majorities of the particular count in the regions of Switzerland. A provision could be put into the Bill, or into some Act that then calls a referendum, to say that the results would only be binding if there is a certain turnout in the vote, which has been the practice in the UK in the past-in the Scottish Devolution referendum in 1979, for example.

Sorry, what was the second part of your question?

Chris Kelly: For the result to be regarded as politically binding.

Professor Hix: That is more of a political question than a legal one. Even if you meet a certain threshold, whether or not that is politically accepted as legitimate relative to a particular majority size in the Commons, it is a separate question that is very difficult to answer.

Q218 Chair: Turning to the Scotland devolution vote, Michael and I were engaged in the debate on the question of turnout on the alternative vote Bill. My amendment said that it should be 40% of turnout, which I thought was rather a modest and fairly low threshold. However, as Michael remembers only too well, the George Cunningham amendment was 40% of the yes vote.

Professor Hix: The yes vote had to represent at least 40% of voters.

Q219 Chair: That is right. The yes vote had to represent 40%.

Professor Hix: That is quite a high threshold.

Q220 Chair: Yes, and that had a significant impact on the outcome of the Bill. In fact, it was the reason that the Bill was lost. Do you have any thoughts on whether or not the percentage should be geared to turnout or to the "yes or no" question?

Professor Hix: I think that it should be geared to turnout. The practice in most other countries that have such a system is that there is a trigger that says the result is binding if the overall turnout is above a certain size.

Let me say one other thing that I forgot to say in response to Mr Kelly’s question, which is when you trigger a referendum, there is an ongoing debate among the people who research and study referendums across the world over whether the public answers the question in referendums or some other question. That is particularly the case with European referendums-even the very big major European referendums on big issues, such as joining economic and monetary union. A great example of that was in the two referendums on the Maastricht treaty in Denmark. The first one was against, and that was largely seen as a vote against a very unpopular Government who were then defeated and who then triggered an election campaign. The new Social Democrats won the election, called a second referendum and then won the referendum on exactly the same question. That is the example to which people point to say that even on a major issue, the result was really driven by domestic political considerations, and it had nothing to do with the question.

Having said that, research on the referendums on the constitutional treaty and the Lisbon treaty-not only in France, the Netherlands and Ireland, but in Spain and Luxembourg-has indicated that the biggest predictor of how people voted individually was their individual attitudes towards Europe, not their attitudes towards the Government. In those examples, the referendum campaigns were organised in such a way that there was a big information mobilisation, particularly in the French case, which meant that they were not just about the unpopularity of the Chirac Government, but about the question on the table. It is not that the Government’s unpopularity did not matter, but you can think of it like this: 40% of the answer was related to people’s attitudes towards Europe; 30% was related to their attitudes towards the Government of the day; and the other 30% was related to some other factors.

Q221 Chris Heaton-Harris: I think that this is a pretty bogus argument, because surely the same case can be made for local, parliamentary and European elections in the United Kingdom. I was elected to the European Parliament on a 28% turnout. In fact, that was on the same day that Bubble was evicted from the Big Brother house with more votes than my party achieved nationally. I don’t buy the argument that you can’t have a legitimate result on a small turnout.

Professor Hix: I’m not saying that you can’t, but that it raises questions about the legitimacy of those outcomes. People certainly do raise questions about the legitimacy of the majority in the European Parliament because of the low turnout in elections.

Chris Heaton-Harris: When voters turn out in local elections they tend to be answering national questions. God knows why some people voted for me-some have been questioning that in my constituency since May. Some people voted for me on one particular policy area. I do not think that you can define the question that people are answering when they put a tick on a ballot paper. We just have to accept that the majority of people will be doing the right thing in their own mind. We have to get used to the fact that democracy evolves. Surely in an evolving democracy referendums have a place.

Q222 Henry Smith: Briefly, I want to take you back to threshold limits. Are there many examples where the threshold for acceptance is 50% of those eligible to vote? Granted, it is a high threshold.

Professor Hix: I do not know off the top of my head and would have to look that up.

Q223 Henry Smith: Nothing leaps out at you?

Professor Hix: Nothing.

Q224 Michael Connarty: On the question of scale and importance in determining what is the legitimate use of referendums, the most recent referendum in Scotland was on whether to set up a Scottish Parliament and, in a second question, whether to give it tax-varying powers. Where does that fit in the scale of what is salient and, therefore, justifiable in using a referendum? Would that fit your model of something that is large enough in scale?

Professor Hix: My basic view about this is somewhere between that of Chris Heaton-Harris and that of others. Referendums are a legitimate tool, but often they are not regarded as legitimate unless they are on major constitutional questions. In a democracy we believe that ultimately sovereignty resides with the people, so it is legitimate that referendums should be used for major constitutional changes. Examples of such major constitutional changes include the transferring of policy competences to the European level; the transferring of policy competences to a lower level of government, as is the case with devolution; changing the way our electoral system works; and whether or not we should elect an upper House.

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

You can, of course, have referendums on a whole range of other minor issues, but questions will always be raised afterwards about whether there was a legitimate outcome. For example, California recently had a referendum on the legalisation of marijuana, but I imagine that there will be another referendum next year, and another one the year after that and so on. In Texas, they have referendums in local communities on whether they should ban smoking or ban alcohol. You have a referendum every year on the same issue, because people question any one binding outcome on whether it was the right question or whether the turnout was high enough or whether people were voting on other things. When you have a fundamental constitutional question, however, the issue gets resolved for a significant time, because of its nature.

Q225 Chair: Of course, they don’t have such referendums in the United States on major constitutional issues.

Professor Hix: Not at the federal level. They do at the state level.

Chair: That’s the point.

Q226 Michael Connarty: I’m trying to get the scale, because I think I lean in the direction that you go with it. Clause 4 and clause 6-

Professor Hix: I think they’re too minor.

Q227 Michael Connarty: They are likely to be too impenetrable for people, and they will become referendums should they ever be used on other things. On the scale, you are basically saying that you think the Scottish referendums for devolving power and to give tax-raising or varying powers were significant. Would you, therefore, conclude that, should we go to a second Scotland Bill and do as is recommended by Calman, for example, and give 10% of tax-raising powers to the Scottish Government, that would require a referendum?

Professor Hix: If you have the principle that any major transfer of sovereignty that relates to a significant policy competence requires a referendum, that would fit my description.

Chair: I think we ought to be a bit careful and to stick to the European Union.

Q228 Michael Connarty: Yes, I know that. Finally, should Lisbon, therefore, have had a referendum?

Professor Hix: I think Lisbon should have had a referendum, but the Lisbon treaty is the least significant treaty that the EU has ever signed.

Q229 Chair: But the Maastricht treaty was not.

Professor Hix: The Maastricht treaty was not what?

Q230 Chair: Was not insignificant.

Professor Hix: I think all of the EU treaties are significant. If they fit my description, as I say, it’s perfectly legitimate to say that any major treaty reform requires a referendum.

Q231 Chair: So you would have said yes to a Maastricht referendum.

Professor Hix: I think there should have been a referendum on Maastricht, on Amsterdam, on Nice, on the constitutional treaty, on the Lisbon treaty, on whether Britain should join EMU or on any other major question like that.

Chair: That’s very helpful. Thank you very much. Now, you go on to say that domestic constraints have to be credible in the eyes of other member states in the Council. On that basis, you call into question the likelihood that a UK Government would in fact hold a referendum on the less significant issues, which arise under clauses 4 and 6 of the Bill, because on most of these issues there are alternatives for the other member states. Penny, you were going to ask the next question, I think.

Q232 Penny Mordaunt: Can you elaborate on what those alternatives for other member states would be?

Professor Hix: There are two sorts of alternatives. There is one alternative within the mechanisms of the treaty, and there is one alternative outside the treaty. Within the mechanisms of the treaty, there are provisions for enhanced co-operation. Those provisions are written in such a way that they could apply to most of the areas in the treaty that are covered by this so-called passerelle, which was put into the Lisbon treaty to make it easier. You can even read that that element of the Lisbon treaty was in response to an increase in the usage of referendums by member states to ratify treaties. As member states increased the threshold for passing treaties, the elites negotiating such things said, "It’s going to be more and more difficult in the future for us to get treaty reform, so let’s figure some other way we can amend the treaties." That was the reason why they came up with this sort of simplifying treaty mechanism.

My reading of the treaties is that most of those simplifying mechanisms could be covered by enhanced co-operation. Enhanced co-operation cannot be invoked if it undermines the basic elements of the single market, but it could be used in a lot of these areas. If they then feel that, legally, they cannot use enhanced co-operation, they can always use some separate intergovernmental deal among themselves to act in a particular policy area, and we have seen, historically in the way the EU works, that being used a lot by member states if they feel that they cannot get it through the normal treaties.

Talking to colleagues in other member states, and, interestingly, reading the evidence from the retired legal adviser to the Council, Mr Piris, I think that a lot of other member states will look at the Bill, if it is passed and if an issue comes up, and either say, "If a British Government is in favour of us making this change, they will find some way to amend the Bill relating to those provisions, so that they can get on with business in Brussels." or, "I don’t expect that they’re going to have a referendum on these things, and therefore they will have to vote no." or, "There will be a referendum on these things, and it will inevitably be a no, so therefore we have to think about ways to get around the British position." Any of those scenarios weakens the hand of any British Government in negotiations, because the assumption is either, "It is not a credible threat and therefore we don’t take you seriously," or, "It is a threat but you’re binding your hands already to say no. Whatever we come up with you are going to say no, so therefore we won’t negotiate at all with you."

Q233 Chair: So basically you don’t take a very sanguine view of the practical consequences of all these provisions set out ad nauseam.

Professor Hix: I don’t, and this is why I think there are other mechanisms that could-I think it is legitimate, given the fact that I don’t like the way the treaty is now designed to allow essentially the elites sitting in Brussels to make significant constitutional shifts in the way the EU works without them being ratified by national Parliaments. I am not happy with that. I think that is a breach of the tradition in which the EU has been built through voluntary sanctioning by national Parliaments and by national publics. I think there should be some more constraints, but I am not convinced that the referendum is the appropriate way to do it.

Q234 Mr Clappison: Can I take you back to the point you have made about enhanced co-operation, so I understand this correctly? You are saying that-as you have put it-the elites in Brussels could get round the various constraints that there are on doing things in the EU Bill by using enhanced co-operation as an alternative to one of the mechanisms that is covered in the Bill that would trigger a referendum. Is that what you are saying?

Professor Hix: Not in all those areas, but certainly in some of them.

Q235 Mr Clappison: Enhanced co-operation would be a way of circumventing the referendum blocks that are in place. Presumably, you have studied the EU Bill. If they went for enhanced co-operation, what would be the process under the EU Bill as it stands? There would not be a referendum, would there?

Professor Hix: It doesn’t look like there would be a referendum. My assumption would be that the other member states would want to do this without Britain, so in that sense they could go ahead without Britain’s agreement.

Q236 Mr Clappison: Suppose a British Government wanted to take part in enhanced co-operation, which is on the table from other member states, what process would be followed to bring about that enhanced co-operation?

Professor Hix: So far as I as I can see, I don’t see that as being covered right now.

Q237 Mr Clappison: It’s not covered in the Bill as it stands. So it wouldn’t be covered by a referendum.

Professor Hix: That’s a good point.

Q238 Chair: I think Professor Dougan makes that point as well in his evidence. Do you think that enhanced co-operation in this context would be more inclined towards creating an association of nation states. You have Schengen; you have opt-outs; you have enhanced co-operation-

Professor Hix: Defence co-operation, which doesn’t apply to every member state.

Q239 Chair: Yes; what I’m saying is that increasing evidence is emerging that a diversity and a flexibility is penetrating the assumption that everything has to be a one-size-fits-all, uniform policy within one legal framework and an acquis. You know where I am coming from; for practical purposes, although they won’t admit it, there is an increasing tendency to go down the route of an association of nation states.

Professor Hix: I’m not sure that the second of your statements follows logically from the first. I think it is true that there have been increasing usages of what people call flexible integration, so several sub-clubs of the EU moving forward in particular policy areas because the other member states are not willing to go along. We can see that with the euro, with defence, with Schengen and so on. Whether or not I think that is leading to an association of states; I think that is not true. I think that an association of states is saying that all these mechanisms are intergovernmental, but they are not. You cannot make the argument to me that the euro is an intergovernmental mechanism when you have delegated significant powers to an independent central bank, where ECOFIN is deciding by majority vote how it manages its macro-economic policies in relation to the euro. It doesn’t logically follow that an association of states is the consequence of flexible integration.

Q240 Henry Smith: However, Switzerland is a member of Schengen, but obviously it is not a member of the European Union. That might be a weaker example, and I accept the points relating to the euro, although there are nations that use the euro that aren’t members of the EU. I thought I would just throw that out there.

Professor Hix: Okay, on Switzerland and Schengen, as far as I can gather in the development of the area of freedom, security and justice in the EU and how that relates to Schengen, Schengen is gradually being hollowed out in what it is used for. In a sense, Schengen is the treaty just for agreeing rules on the removal of borders. Everything else on the policy that covers what you do with the movement of peoples is now being done through the area of freedom, security and justice. You can see that one of the major significant growth areas in European legislation over the past decade has been that of freedom, security and justice-whether that is to do with common refugee policy, asylum policy, common visas, or family reunification, and so on. That is where it is a quasi-federal political system. The Commission has an agenda-setting power. It is a bi-cameral system; the European Parliament has co-equal power with the Council. It is not an association of states.

Chair: Henry, would you like to ask the next question?

Q241 Henry Smith: Yes, I think this has probably already been answered. Is there evidence from the domestic checks in other member states that these forms of constraints are taken seriously by member states?

Professor Hix: They are, as I mentioned in relation to the treaty negotiations, and there are other types of checks which are taken seriously. The classic example is the check of the Danish Parliament on Danish governance-the check that the committee in the Folketing gives to the binding of the hands of Ministers before they negotiate in Brussels. That has a particular effect in the Danish context, because most Danish Governments are minority Governments, so the Folketing has significantly more power than in any other Parliament where the Government are sitting in a majority. That gives one particular context. One of the things that I mentioned in my evidence, which I think is missing from the Bill, is anything more detailed on what our Ministers are actually required to do and to give to the Committee when negotiating on day-to-day legislation in Brussels.

Q242 Chair: So you’re recommending that there should be some form of a mandate, as well as a scrutiny reserve.

Professor Hix: I think there should be some form of mandate, and I also think there should be much tighter restrictions and requirements on what has to be provided to the Committee in terms of documents. It is not sufficient just to say that the Committee sees what the Commission proposes, and then, if it wants to, the Committee sees anything that is available to the public from the Council. The Council is still a largely secretive organisation, despite its claims to the contrary. There are a lot of things that you and I don’t see, but Ministers do.

Q243 Chair: Just before James comes in, you may or may not be aware that, in relation to the task force and the whole of that business about European economic governance, it was only because I happened to be at the COSAC meeting and was given a copy of the document that I was able to ask an urgent question the next day.

Professor Hix: Exactly.

Chair: If that doesn’t make your point, nothing does, and the whole argument has gone on from there.

Q244 Mr Clappison: Perhaps I should be giving evidence myself; I would say amen to what’s just been said. On the Danish point, I had the opportunity to go to Denmark fairly recently to speak to members of their committee. It seemed very popular with them, it seemed to work very well, and it had been in place for a number of years. Is that your academic view as well?

Professor Hix: Yes.

Q245 Michael Connarty: Can I just clarify the traction that the two-thirds majority has? Have you had any indication that the UK Government are in any way thinking about anything other than referendums? They have always said that they didn’t want to have qualified majorities, but they are about to introduce a Bill on fixed-term Parliaments, which would bring in a two-thirds majority Government. We have that in Scotland, because the electoral system is deliberately and inherently designed not to have a majority, and therefore you must have a stability clause. However, this is the first time that I have known the British Parliament to bind itself. So is that unique to that particular circumstance?

Professor Hix: No, I think there’s something fundamentally different between rules that relate to how Parliaments can dissolve themselves and call elections and rules that relate to the passage of certain Acts or pieces of legislation. In the former, I can see some very difficult issues relating to raising the hurdle for calling an election and what that does, in practice, for the sustaining of what could be potentially a very unpopular minority Government. Across the world, a lot of democracies-such as Germany and several other states in Europe, and elsewhere in the world-have different majority requirements relating to the nature of the legislation that is being passed. For example, there are different rules in Germany relating to whether or not the legislation relates to a federal competence or a Land competence, and then what majority is required to get it through the two chambers.

Q246 Michael Connarty: Can I come back to you? We had a rather interesting debate with Professor Craig and Professor Allan about whether there was such a thing as a hierarchy of law, and if there were such things as constitutional laws that were at the top of the hierarchy and therefore could never have an implied repeal by passing another Act that contradicted it. Are you saying that there are such constitutional laws that are, in fact, part of a hierarchy and therefore require different circumstances?

Professor Hix: I think there are. I am persuaded by a recent book by Professor McLean at Nuffield college, Oxford, in which he makes exactly that case. He says that in the British system there is, in practice, a difference between Bills that are quasi-constitutional in that they have set up and set out the fundamental powers that exist in Britain. You could say that the devolution Bill is one of those, that any Bill on the electoral system is one, that the European Communities Act 1972 is another, and so on. So I think there are certain categories of Acts which are of a constitutional nature. His recommendation would be that the amendment and repeal of those Acts should require a higher threshold than a simple majority.

Q247 Chair: I am rather keen to stick to the European Communities Act.

Professor Hix: But I think that is logically consistent with the idea that you could have similar sorts of requirements for these sorts of issues relating to the EU treaties.

Q248 Michael Connarty: That raises the question of implied repeal. If an Act were passed by the UK Parliament that contradicted an EU law, given that the 1972 Act is, in your assessment, a constitutional Act and so there could not be an implied repeal immediately, a British court would therefore be required to strike down the enactment of the new law passed by a British Parliament if it contradicted the European law that we agreed to in the 1972 Act, because it cannot be implied to have been repealed.

Professor Hix: I am not a constitutional lawyer, and I would defer to my colleagues who are that exact thing. I am just talking about the establishment of political practice and what that would logically mean for the majority requirement in a Parliament.

Chair: I think we are moving down the territory of constitutional law and McCarthy versus Smith, Diplock and Garland and all the rest of it. Henry, did you want to ask a question?

Q249 Henry Smith: This is a fascinating area. I agree with your contention about a hierarchy of certain Acts. Do you think they should be more explicitly in a written constitution, for example? I highlight that because obviously it is a subject of academic debate as to whether there is a hierarchy or not and whether such Acts should only be amendable by referendum.

Professor Hix: We could be here all afternoon talking about whether we should have a written constitution, so I will answer this very briefly. I think there have been fundamental constitutional changes in Britain over the past 20 to 25 years, whether that relates to European integration, devolution, mayors, whether we have an elected upper House, or the Human Rights Act. We have a new constitution that is not the same constitution we had 30 years ago. It would be appropriate for us to sit down and think about what this means in the long term. Therefore, I would be in favour of some sort of convention that draws up a proper written constitution for Britain that includes exactly these sorts of things.

Q250 Chair: On the question of the two-thirds majority, it is a fact-Jacob Rees-Mogg had this very much in mind-that in the 19th century Gladstone had, I think, 100 votes as a minimum. Some people, including myself, have made a suggestion about 150 MPs deciding to call for a motion on the question of whether there should be a free vote on the European issue. In other words, the idea of percentages and some degree of majority is already around.

Coming back to something we were discussing earlier, do you think that part of the problem is that the whipping system distorts the apparent purity of a percentage majority because people are told, "You’re going to do this"? Two thirds of the seats was the criterion for the Fixed-term Parliaments Bill, but going back to the European Union, in the context of the German constitution, it is two thirds of those voting on constitutional questions that is the determining factor, not just two thirds of the seats. When we are talking about two-thirds majorities, we would be quite clear that it would be with regard to the number of those voting, not merely the number of seats.

Professor Hix: For me, the actual threshold is a secondary question. The primary question is: why would you have a higher threshold? For me, the argument about why there should be a higher threshold is that you want broad political consensus. In Denmark, broad political consensus is four fifths-80%. It would be up to the House of Commons to decide what it thought was broad political consensus, but the whole point is that you would want to prevent the particular majority of the day from being able to make what could be fundamentally constitutional decisions, so you want a higher threshold that forces a broader political consensus, meaning that the major political parties would all have to get together and agree to something. This would be a constraint on the Conservatives as much as it would be on a constraint on Labour or the Liberals. So two thirds might not be high enough. In Denmark, what they think is sufficient to guarantee broad political consensus is interpreted as four fifths. Two thirds might not be thought of as significant.

Under first past the post, where swings are magnified-the electoral swings are magnified in seat shares-I can imagine that a party could get close to a two-thirds majority in the Commons with significantly less than 50% of the votes. If we stay with our current electoral system, I can imagine that the threshold should be significantly higher than two thirds to guarantee that there is broad political consensus.

Chair: Finally on that point, there are those of us who strongly believe that a majority of one suffices, but I’ll pass on to Michael Connarty.

Q251 Michael Connarty: It does in the elections I’ve lost.

One thing that strikes me about this Bill-I made this comment when it was announced in its outline-is that the Government have said that there will not be a referendum, or even in fact the specific requirement of an Act of Parliament, to allow an accession treaty to go through. Is that consistent with part 1, which refers to treaties excluded from the referendum requirements; it is clearly mentioned in clause 4? Could the accession of Serbia or Turkey be considered a significant enough a transfer of power to require a referendum?

Professor Hix: I think you could definitely make that case with Turkey. It would be harder to make the case with a smaller state like Croatia or Serbia. If you are going to establish a principle that says that any significant transfer of powers, or anything which significantly changes the balance of powers between the institutions or between the member states in Brussels, requires a referendum, I cannot understand how you would not include the accession of member states above a certain size. I think size is significant here, because with the way that majority voting on legislative issues now works under the ordinary legislative procedure-or will work after 2014 and 2017-the accession of a state like Turkey to the EU will fundamentally change the influence that the UK has on legislative decision making in the EU legislative process. It will significantly weaken the voting power of the UK and the ability of the UK either to want things through that it would like or to block things that it doesn’t like-either of those two things. In a sense, Turkish accession to the EU is, for me, a much more significant shift in the influence and power of the UK in Brussels than the majority of things that are mentioned under clauses 4 or 6.

Q252 Mr Clappison: You have helpfully mentioned some of the constitutional changes that will come about as a result of, say, the accession of Turkey but, obviously, there will also be political consequences about which people might wish to express an opinion one way or another. Migration springs to mind, but there is also economics, spending by the European Union, distribution of funds within the European Union, and so on. You will have studied the Bill on this point. As the Bill stands, if there were a stand-alone treaty just on Turkish membership-to continue to take Turkey as my example, although it could be anyone else-it would not trigger a referendum.

Professor Hix: No.

Q253 Mr Clappison: A referendum on that particular treaty would be triggered only if something else of a constitutional nature were tacked on to the treaty. And the same would apply to any other candidate member state that becomes a full member state by acceding?

Professor Hix: That is correct.

Q254 Mr Clappison: There is no provision in the Bill as it stands for even a vote of Parliament on whether there should be a referendum. There would not be a referendum.

Professor Hix: The Bill explicitly states that accession treaties are excluded from its provisions, which is one of the things that I remember highlighting as I read through it-I thought that it seemed absurd. It is clearly politically pragmatic. Reading the Bill, it is clear that there are very strong political preferences. The Conservative-Liberal Government would like Turkey to be a member of the EU, and they would not want the British public to stop it. Such a provision is therefore excluded from the Bill; the issues that they don’t want are therefore included in the Bill. For me, either you are going to be logically consistent or you are going to be political. Make your choice.

Q255 Michael Connarty: You have almost exactly anticipated the question I might have asked you, so it is interesting that you have made that judgment, which some people may say is a political assessment as well as a constitutional assessment. The whole question of excluding the accession treaties clearly implies that one major item of constitutional change across the European Union has been left out of this Bill because it suits the Government to do so.

Professor Hix: I think that’s right.

Q256 Michael Connarty: Those of us who have sat on this Committee for a long time are also concerned that the Government have left out any reference to how the opt-in process will be proceeded with. We seem to get notified "opt in" or "don’t opt in" according to the whim of Government Departments or perhaps their Ministers. There is nothing in the Bill about that at all-it is a complete omission. You talked about scrutiny, but the Bill doesn’t give any indication of what the threshold is for opting in or opting out. In a sense, that is of concern to the British public and it has been coming up for many years. Could you think of any other omissions that you would include in the Bill if you genuinely wanted to create a mechanism for scrutiny and accountability on decisions related to the European Union?

Professor Hix: There were two things that I highlighted in my evidence, and one related to accession. I think there will be referendums on Turkish accession because Turkey is so significant in terms of its size and what it means for the nature of the EU. There are various other political, economic and social consequences of Turkish accession. It is a serious enough issue that I can imagine there being calls for referendums and pressure for referendums in a lot of member states, including France and Austria, and, potentially, the Netherlands and Denmark. We could well find ourselves among the states that are not having referendums on that issue.

Q257 Henry Smith: I think you are absolutely right. There are many European nations in which the populace will demand referendums on Turkish accession, which is why I don’t think that Turkish accession will ever come about, because I don’t think Austria or Germany will agree to it. Do the laws or constitution of any member state say that there has to be a referendum for accession?

Professor Hix: No. Not currently.

There was one other thing that I was going to say, because there is a second area that I feel was excluded from the Bill, but which I think could have been included. I read at least part of the Bill as trying to hold our Ministers and our civil service more to account when they are doing business in Brussels. I can see a logic behind that, but if that is part of the aim of the Bill, there could be extra provisions on what the British Government provide for the way in which legislation is scrutinised. The EU passes approximately 150 to 200 pieces of legislation a year, and the way in which that legislation is negotiated in COREPER-as far as I understand the way in which decision making works now in the Council-is that the Council presidency puts forward a proposed draft and the member states propose amendments. They have to put together composite amendments and co-sponsor amendments, because with 27 member states, the practice of how things works has changed. They have got rid of the tour of the table, in which every member state had its right to make a proposal. Now there is a need to club together to have joint speaking time and joint amendment time. I want to see the texts of the amendments that our Governments put forward, who they co-sponsored them with, and whether they are passed or fall. We see this in the European Parliament; why can’t we see it in the Council? This Committee should have the right to see that, and that should be in the Bill.

Q258 Chair: And without it, it is thoroughly undemocratic, because majority voting equals laws that are imposed on the people of this country, and we haven’t the faintest idea, and nor can we ask the questions of anybody who is making the decisions.

Professor Hix: That is right.

Q259 Chris Heaton-Harris: I want to go back to Turkey, if I may. I have been waiting to ask a question and I think that you might be the right witness to answer it. Another part of the Bill means that we are getting another MEP-very exciting. When Turkey comes in, there will be a reduction in the number of Members of the European Parliament, because the number of seats in the Parliament is capped and we will all take a hit. That will probably affect Northern Ireland and the north-east; in fact, probably one seat from every region of the United Kingdom will be going down. Is that diminishing representation not something that we could worry about in a constitutional way?

Professor Hix: Do I want to speculate? I don’t know whether Turkey is going to come in. I am probably of the view that it raises significant hurdles. By the way, by the time the EU has decided whether it wants Turkey to be in, Turkey will have probably decided that it doesn’t want to be in.

I didn’t put this in my evidence, because I was asked to focus on part 1, but if I were to comment on the issue relating to the extra British MEP and how they are allocated, I would have thought that, given the commitment in the Conservative manifesto to have open lists in European Parliament elections in the UK, which I would be in favour of, this would be an opportunity to change the way in which European Parliament elections work in the UK. That could easily be in this Bill. It would not be too difficult to make that shift from currently closed party lists to open lists. I would have thought that that could have been put in the Bill.

Q260 Chris Heaton-Harris: I didn’t know that was a commitment of ours.

To change tack slightly, in response to yesterday’s debate and in evidence the day before, the Minister for Europe told us how binding this would be for future Governments. In fact, he said you can’t bind a future Parliament. How binding is this on a future Parliament? I know that a future Government could repeal these provisions under pretty much any circumstance, but what is your view on that?

Professor Hix: The promise that there should be a referendum on major treaty reforms is probably difficult for any future Government to overturn, because that is the sort of thing you can ask in an election debate: "We have committed to have a referendum on treaty x. Are you committed to that?"; and, "Are you going to change the EU Bill to prevent us from doing that?" The political salience of that issue in effect binds a future majority.

I don’t think that’s the case with the smaller issues. I can’t imagine that a leader’s debate would include the question, "We are committed to a referendum on a shift from unanimity to QMV in social policy. Are you committed to that?" I just don’t see it ever happening. So, with the minor issues under clauses 4 and 6, if any future Government want to change these things, or if they are under pressure from the other member states, I think they will just whip their majorities to back an amendment to the Bill. I think it is much harder for them to overturn a referendum requirement related to a major treaty reform.

Q261 Chair: May I ask the final questions? Do you think that a referendum as a result of any of the trigger clauses in the Bill would ever be successful? If so, what does that tell us about the legislative intent of part 1 of the Bill? Following on from that, is it consistent with part 1, in your view, that an accession treaty is excluded from the referendum requirement, so that, for example, the accession of Serbia or Turkey could be considered as a significant transfer of power?

Professor Hix: My reading of this was that the assumption is that the British public will vote no to whatever you ask them relating to Europe and, therefore, the view is "Let’s not talk about accession, because we are in favour of it." Asking me to speculate about whether the public will vote in favour of any of these things is an impossible question to answer. I think referendum campaigns can change significantly. The attitude of the British public towards Europe has hardened, but the level of information and understanding of European issues is relatively low. I can imagine, at some point in the future, people’s attitudes changing if something comes up that they are particularly in favour of. Right now, if there were going to be a referendum any time in the next year on any of these issues, I would speculate that the answer would inevitably be no, but five or 10 years down the line-who knows?

Q262 Michael Connarty: Evidence was given by the Minister for Europe about the carbon tax, basically saying that we must have a referendum on a carbon tax. Surely we face a dilemma in that it seems to be contradicted by the fact that at the most recent Environment Council a carbon tax on lorries heavier than 12 tonnes was agreed to, including an option for a daily charge of £11. That is a tax, and we argued that that was a tax, but the Minister seemed to fold on it and agreed that it was a transport policy. But it is clearly a tax; you ask anyone who has a 12-tonne lorry or above when they come to have to pay it whether it is a tax. That was just slipped through by the process of us deciding to cave in and accept that it was a transport matter, and therefore that it was qualified majority voting and we couldn’t veto it. Is it not likely to be the scenario in clauses 4 and 6 that every time it comes to the crux of a decision, the Minister will find some way of folding and saying that it is not important enough to require a referendum? I agree with the Minister that getting anyone interested in a carbon tax would be quite difficult; it would become a question about taxation from Europe. I am sure if we had put the Eurovignette to a referendum people would have said, "It is a tax from Europe, and we are not having it."

Professor Hix: I think that’s right, but there is a limit to how far that sort of strategic behaviour by officials in Brussels is possible. There are constraints under the treaty on what’s possible, and I think the Court of Justice has actually upheld those things. For example, on tobacco advertising, where the directive on tobacco advertising was passed under free movement of goods, the Court of Justice struck it down on the grounds that it wasn’t relating to the free movement of goods but was a public health issue. Public health requires unanimity, and of course it was never going to pass. They managed to finagle it under free movement of persons. There are limits on the possibility of doing that, but I think there is plenty of precedent that already the Commission and the member states are used to finding some other way of getting stuff that they want passed if there are constraints in the treaty.

Q263 Chair: One last question in general. Is part 1 really designed to provide power to the people, as is claimed, or is it really designed, in your opinion, to strengthen to the United Kingdom negotiations in Brussels?

Professor Hix: I don’t think it is designed to do either of those things. I think it is primarily designed to put a brake-to bind the hands of the current Government or of future Governments-on what Britain can sign up to in Brussels, on the understanding that there would never in practice be referendums on most of these things. That is how I read it. My question is how credible it is in that aim, and frankly I don’t find it that credible.

Q264 Kelvin Hopkins: I apologise for being late; I have been at a speaking engagement. I have just one question before you go, and you may have dealt with this already. In your paper you have said "If the EU collapses, and I genuinely fear that this is a possibility, this would be a disaster of historic proportions for Britain." I proposed, when speaking last night, that a rational deconstruction of the euro, rather than letting it collapse, would be the sensible way forward using the resources. It’s a looser arrangement of nation states with powers repatriated, the end of the common agricultural policy and the end of the common fisheries policy. We would still have good relations with our neighbours-better relations with our neighbours, I suspect. I just wonder what your case is for it being "a disaster of historic proportions for Britain".

Professor Hix: There is often a fiction in the UK that we could just have a single market without any of the bells and whistles that go with it and that, therefore, that could just be done through an association of states with the repatriation of most powers. That is a fantasy. The great achievement of European integration, which is taken for granted by current generations, is the creation of a continental-scale market.

I have been invited to various other regions in the world to talk to policy makers, and I was recently involved, in a project for the Asian Development Bank, in trying to design a single market for east Asia-modelled on the EU. They would love to have one. The big stumbling block is that they cannot have one without there being sufficient political integration to have the necessary institutions to create and regulate that market. You cannot have a market on a continental scale unless you have a certain degree of political integration. It just does not happen. It is a fiction to assume that we can have this and not have anything of the politics that go with it.

You have to have a way to adopt common rules and regulations on the production, distribution and exchange of goods, service, capital and labour. The best way to do that is to delegate some agenda-setting power and to have certain checks and balances through a system of government in Brussels. The EU has more checks and balances than virtually any other system of government in the world. Nothing can be passed without a majority in the Commission, a qualified majority in the Council, a majority in the European Parliament and judicial review by the Court of Justice and by national courts. It is a super-checks and balances system.

I don’t believe the idea that Brussels is some sort of runaway bureaucracy that does things that we don’t really sign up to. I don’t believe that we can have all of the benefits and freedoms that we now have and take for granted as a result of this market of half a billion people without there being a certain level of political integration. That is not to say that I think the CAP should not be torn to pieces or that other elements of the policies of the EU should not be changed-I think they should be-but I don’t think that it is possible to have a continental-scale market and an association of states. Those two things are completely incompatible. That is what other regions in the world are finding, and I think we would find the same in Europe.

Q265 Chair: But is it arguable that the system that is going on in the euro and the low growth and the high unemployment and the rise of the far right and all the rest of it are indicative of the fact that this great bureaucratic system is not, and should not, be entirely institutionally run and, really, does not work as well as some people hoped it would?

Professor Hix: I absolutely agree. That is exactly what I argue in my book, What's Wrong with the European Union and How to Fix It, but the answer is not to tear it to pieces; the answer is to think creatively about what we do with it and how we make it more democratic and more dynamic. The two things go hand in hand. It cannot be more dynamic without being more democratic.

Chair: I am delighted that we finish on the word "democratic". That’s very helpful. Thank you very much, Professor Hix.

Examination of Witness

Witness: Professor Ken Minogue, Professor Emeritus at the Department of Government, London School of Economics and Political Science, gave evidence.

Q266 Chair: Good afternoon, Professor Minogue. I’ll start with the first question or two.

Your submission deals largely with parliamentary sovereignty aspects of the Bill. Of course, we have just reported on that: we had to, because of the time constraints that the Government imposed on us as a result of holding Second Reading yesterday. Most of our questions today will turn on the referendum lock provisions in part 1 of the Bill.

At the end of your submission, you make an interesting reference to the transfer of power from Britain to the EU as having the aspect of a slow-motion coup d’état. You say: "That is why the clarifications of the European Union Bill are significant." What do you see the Bill clarifying, and who is the intended audience for this clarification?

Professor Minogue: Well, on the referendum lock, I have nothing directly to say that would be useful, but my response is in general about a wider generic problem of the 20th century. British Governments and other Governments tended to become internationalised, as I have called it. I have therefore tried to locate the European Union within this broader tendency to believe that there is a source of wisdom beyond the House of Commons and the King in Parliament to which we ought to be, as it were, obedient. We now have large numbers of rules, laws, directives and so on that come from abroad, which are not things that the British Parliament itself has decreed and, indeed, which it probably would not. We are restive under many of these laws, some of them being human rights and some of them being part of the European Union.

This is such an odd situation, because there is quite a lot of evidence that the people at large, when polled, do not like this result. They are resentful of it and all sorts of falsities occur in their responses. At the same time, the political class, which I think is distinguishable, in Parliament, largely-of all three parties-more or less adopts this internationalist position. They’re edgy about it and occasionally they make slight moves towards saying, "Yes, we will give a referendum if there are any future problems along these lines." Nonetheless, they don’t come up with the restraints that I think there is evidence that the population at large would need.

To end that very general and slightly waffly account, let me say that the basic political theory question-that’s my trade-is, "Where is wisdom to be found in decisions in politics?" The answer is, of course, nobody and no decision maker is totally reliable, when it’s sovereign Parliament, the people making a decision in a referendum or whether it is some rational set of economic rights. You don’t know what the effects will be, and the effects will, in fact, include unpredictabilities. My view of the EU and the problems which it raises is broad. Therefore I’m always slightly on the edge of irrelevance as far as the deliberations of this Committee are concerned.

Q267 Chair: Some commentators have pointed to what they see as a contradiction in the Bill, which purports to be drafted to enshrine the principle of parliamentary sovereignty against the threat of the EU itself, while at the same time seeking to limit parliamentary sovereignty by appealing over Parliament’s head-in quotes-to the people in the form of referendums, etc. What’s your general view about this contradiction between these two propositions?

Professor Minogue: It’s not a contradiction, because it simply places a restraint upon certain types of actions that a parliamentary vote might generate. It simply says that if the vote seems to generate that consequence, there is a further check that must be used. It doesn’t bind Parliament to anything in particular that cannot be unscrambled. Furthermore, with that provision itself, as has been made clear by the constitutional lawyers who have written to the Committee, parliamentary sovereignty remains intact in spite of the immense changes-some of which were discussed with Professor Hix-in attitude and control over British life that have taken place.

Q268 Chair: So, when you’re looking at the evidence that we have already seen, do you have the sense that the Bill is likely to be effective in binding future Parliaments? And under what circumstances do you feel that a future Government will or might repeal these provisions? Do you have a sense of the direction in which that might go?

Professor Minogue: In answer to the second part, I think that if the drift of internationalism and the belief in a world government and supranational powers were to reach a certain point, people might then face up directly to the question of saying, "Britain should merely be a province of some larger entity-perhaps the world or perhaps merely Europe-and as a province, it should have very limited powers." In other words, "We should give up the sovereignty and self-determination of the British nation which has so far continued for 1,000 years," I suppose.

Q269 Penny Mordaunt: How far is the decision whether to hold a referendum a legal question, amenable to judicial review? And, how far is it a political question?

Professor Minogue: I think it is basically a political question, and that is basically the problem raised by the whole idea of a referendum lock. It can never be a purely political question, but it can also never be a purely legal question. Those who want to leave the situation as it is at the moment can certainly point to the problems of determining whether this change-change x-really requires a referendum. Incidentally, I hadn’t thought of the accession of Turkey as being a possible thing that might require a referendum, as mentioned in the later stages of Simon Hix’s discussion, but it’s obviously a very important change in the powers that Britain would be able to exercise. The accession of new states has been going on without very much control by the British Government for a very long time.

Q270 Michael Connarty: I hope we will come back to the question of accession treaties, given that that was clearly the most glaring omission in the original speeches that were made about the promise of a Bill when the Government came into power. They have ignored the comments made then and brought in a Bill without accession treaties contained in it.

In your analysis-whether I agree or not; I also voted yes in 1975 and have never regretted it, so I don’t have to recant-all the things that you say about where the power lies may or may not be true to a certain degree, particularly after Lisbon, which we did say was a tipping point in terms of where the triangulation of forces in the European Union would fall. That power would fall more towards the European Parliament and Commission and less to nation states-that’s true. However, there is the question about what use the Bill is in that debate. Do you really believe that all these matters in clauses 4 and 6 will be subject to referendums, if the Minister decides they are serious enough? Of course, if they do not, they will just do them in Council anyway. Where does it fit in in assuaging some of your concerns about the continuing movement of power?

Professor Minogue: It certainly doesn’t entirely assuage my concerns. There is no political solution that is absolutely definite. The media question, "Can you guarantee that ‘x’ will not happen, or that ‘x’ will happen?" is always an absurd question. Therefore, if you want to argue that a referendum should be triggered by certain types of transfer of power, you can never define that in such a way that it will be unambiguous and will give a guarantee. It is like a shot across the bows. It is a declaration by Parliament, with appropriate action, that things have, over the decades since 1972, moved in a direction which has brought us to a situation where we are subject to bright ideas about the hours we can work, the kind of benefits for maternity and paternity that will be allowed, and how our City operates. These things are being determined by foreigners. Now, that is an abandonment of British self-determination and therefore, I think, an abandonment also of democracy. I come back, of course, to the idea that no source of political decisions is entirely wise, but at this point on constitutionality, where the whole power of the nation is being exported to outsiders, then at the very least the people should have an opportunity to declare on it. It is no guarantee, fully, of wisdom in politics, but it is better than nothing.

Q271 Stephen Phillips: Does it follow from that answer, and I think from your evidence, that you regard this as a useful Bill in the sense that it establishes that the will of the British Parliament should be seen as sovereign and that it should determine the fate of those who have sent Members here to make law and, indeed, to form the Government who preside over their affairs?

Professor Minogue: Yes. I think the answer to that is straightforwardly yes. What I am trying to avoid is to be saying that the significance of the Bill is merely declaratory. It has to be a law, and I think that it has legislative implications. So, it is not merely declaratory, but its declaratory force is quite an important aspect of it.

Q272 Chair: And if the mechanism that was employed, for example, under clause 18 was to lead in the direction, through UK constitutional law, to the judges in the light of the Jackson case, for example, to qualify or even to reduce parliamentary sovereignty, would you agree that that would be an unsatisfactory conclusion and that it would be far better to make clear that Parliament has its own sovereignty and its own right, and does not need to go down what Professors Allan and Craig describe as the common law principle?

Professor Minogue: I agree with all that except the last phrase about the common law principle. I take it that the sovereignty of Parliament is a common law principle, is it not?

Q273 Chair: The evidence that we got was that Professor Allan and Professor Craig thought it was, but that the traditionalists-such as the late Lord Justice Bingham in his book "The Rule of Law", but also Professor Adam Tomkins-emphatically put the view that the common law principle was not a sustainable proposition and that it led to consequences in terms of interpretation in UK constitutional law in relation to the European Communities Act, which gave the judges a greater interpretive role and thereby would enable them to be able to make decisions in line with some of their judgments or dicta that parliamentary sovereignty was not everything that it was cracked up to be and ought to be qualified. So that was the balance of our evidence, and I am really asking you if you agree that the ultimate authority, to put it bluntly, should be the UK Parliament, or whether there should be an ultimate authority in, say, the Supreme Court?

Professor Minogue: Where the question arises of an ultimate authority, I think there is no doubt that the sovereign Parliament, which is accountable, must be that ultimate authority. As I said before, ambiguity is inherent in political judgments and indeed in legal judgments. Therefore you cannot exclude the role of judges in interpreting what this principle means. On the other hand, one of the corruptions of political, social and moral life in our time has been the tendency of judges to extend their power. This is often criticised as judicial activism, and I think it is a genuine problem. It is certainly a problem in America, and I think it can sometimes be a problem here. It is seen in the internationalist inclinations of constitutional courts these days to pay close attention to what courts in other jurisdictions are doing. The Americans will take an interest in Australian, British or French judgments, and this is a tendency towards centrism in politics, which is the fundamental discriminator of what is supportable and what is not supportable in respectable terms. That is a very big subject.

Q274 Chair: It is a very big subject. But what if under all the verbiage and under all the doctrines that some constitutional lawyers produce, this question of the common law principle, which I have mentioned, ended up by undermining the ultimate authority of the UK Parliament’s sovereignty in the hands of the Supreme Court to diminish parliamentary sovereignty? Would you conclude that clause 18, if it had that mischief in it, as you might put it, would be much less useful and of much less value if it produced those consequences?

Professor Minogue: Certainly if it had that mischief in it, as you so wisely put it. My view of parliamentary sovereignty is that it is a multifaceted principle, justifiable in common law terms, justifiable in democratic terms because it allows an accountability that judicial decisions do not, and justifiable far more widely in the fact that it coheres with the entire tradition of British freedom which, I think, is central to what we ought to understand of our political situation.

Q275 Kelvin Hopkins: I apologise for being late. I wanted to pursue a point with Professor Hix earlier. It strikes me very strongly that this desire for self-government is very powerful and relates to people seeing themselves as culturally homogeneous. For 700 years the Greeks were governed by the Turks, but they still retained Greek identity. The Poles have been battered from side to side by Orthodox Russians and Protestant Germans and they have retained their sense of identity. Once they have self-government they are quite happy to deal with other countries but they do not want to be governed by other people. They are prepared to hand over a degree of sovereignty temporarily for self-protection. The Baltic states, for example, like to be within the European Union because they are much more frightened about being governed by someone further east. But they still want self-government. This idea that somehow we want to get rid of self-government and go in for some world order strikes me as being a psychological phenomenon, not a rational one.

Professor Minogue: In the world at large.

Q276 Kelvin Hopkins: Yes. You mentioned the political class. It is the political class, and I have been across Europe to many countries and the political class are almost united in their fanaticism for the European Union. Yet the peoples are not. The people want to have a Government that they can relate to and can elect and de-elect from time to time as well. We have not cut that Gordian knot.

Professor Minogue: That is absolutely the starting point for understanding the whole position. Universities periodically sink into corrupt institutions. They did when they became scholastic in the late middle ages and had to be rescued by external scholars. In our time there is a subfusc doctrine, an anti-national doctrine, an anti-bourgeois respectability doctrine, that makes large numbers of people in universities adopt a self-flattering idea that their critical credentials are at stake if they do not embrace something international, subversive, et cetera. That is not something to be elaborated in a Committee such as this one with serious business to conduct, but, none the less, there is a kind of déformation professionnelle of the academic and the educated classes that is a significant fact of our time.

Q277 Michael Connarty: You throw out so many tempting titbits that I could chase that one down the road for a long time-whether the academics of our country, or any country, have a naturally subversive nature, and whether there should be such a nature, given that we don’t want the bureaucrats running our lives entirely, or nothing would ever change.

Professor Minogue: That is a sound doctrine.

Q278 Michael Connarty: Focusing on the Bill, you have said that the Bill is an attempt by the Government to give power back, but it appears to be not a consultative referendum process, but a policy-making referendum process. So, obviously, it takes the power from Parliament and gives it to a group of people who may or may not turn out in large numbers and who may divide on the issue by a small margin. You are saying that that group of people who turn up for the referendum are more valid than those people who turned up for the parliamentary process. We have seen a lot of that recently, with very right-wing politicians getting into coalitions with what were libertarian politicians. Each group was seriously damaged by that in the end in the eyes of the people who voted for them.

In the referendum situation, the people who turned out for my election to the UK Parliament may be a completely different group of people from those who turn out for the Scottish elections to the Scottish Parliament next year. Considerably fewer people turn out and the majorities are slightly different. Because of electronic voting, we now have very clear indications of who votes where-we don’t have the names, but we receive the numbers for each polling station electronically for the Scottish election-so we know the pattern of votes, which is entirely different from the pattern of votes for my election. Why should that referendum process, some of which-the technical material in clauses 4 and 6, for example-may be of very little interest to people, be more valid than the democratic will of a sovereign Parliament elected on whatever constitutional and electoral system we choose to have for our Parliament?

Professor Minogue: The answer is that no one knows. Sometimes the one, and sometimes the other. The vital point in that interesting position is the word "consultation". It is not the case that people voting in the House of Commons, who are heavily whipped, are always the wisest and the most accountable judges of what ought to be done.

Michael Connarty: If you are talking about the Whips, I entirely agree.

Q279 Chair: Professor Minogue, you are not seriously considering what happened last night by any chance, are you?

Professor Minogue: No. I suppose that the Bill does hand power over to a set of people, but I think it’s also a consultation process. You are perfectly right, if a Parliament, with its own peculiar déformations, is forced to consult a set of people, what that set of people will be, what their wisdom will be and what their particular interests will be is always a dodgy matter. None the less, it is one further consultative process checking the possibility of a movement of power away from Westminster to something, in all these cases, much less accountable. So it might best, I think, be taken as a protection of accountability.

Q280 Michael Connarty: You have probably heard me rehearse the issue, sitting here now for 12 years-the Chair has been sitting here for 26 years-that trying to control the Minister who is going to sell the pass on a negotiation in the Council over my 12 years or the Chair’s 26 has proven to be very difficult. By the way, I don’t think it’s better in Denmark or Sweden, because what they do is they find ways around the mandate. We have had many cases explained to us of how they get around the mandate. However, at least the process is well known.

I give the example of the euro vignette. What is basically a carbon tax on lorries over 12 tonnes, which could be up to £11 a day, was clearly a tax, but the agreement by our Ministers was that they would use the transport authority. It would not be called a tax, but be part of the transport clause so they could go around it. You didn’t have a veto, and therefore you could say, "I couldn’t stop it because there wasn’t a veto, as it is not a tax, but transport." That will go on, and has gone on all the time I have been in this Parliament. If you think it’s good to consult the people in some way in a referendum, surely there are major omissions in the Bill, in that there is no way in which the Parliament can control its Ministers through the well worn subterfuges they use. As you put it very well, they become clubbable. They go native when they go to Council meetings, and they sell things that the British people don’t want them to give away. If they stood firm and were controlled by Parliament, they would not give them away.

Professor Minogue: These are corruptions that lie at the very heart of politics. I don’t think there is a procedure or system that will entirely defeat them. We hope that they will be defeated by frank and free discussion and by media criticism, but as I have been suggesting, there is a sort of elite judgment of what is legitimate and decent to say and what is not. That barrier limits the extent to which people face realities.

I think you’re absolutely right that names are very important here, and people switch names in the most outrageous way. When you were talking to Professor Hix, I thought that was an extremely good point. I don’t see how you get over that. What we have to recognise right through this is that there is no foolproof way of doing what we hope to do, which is to try to make the laws under which the British live reasonably tolerable to the British people themselves. What we now face is a situation in which they don’t like whole streams of things: payments they have to make, resources such as fish they have handed over and laws about working hours. This is an extensive interference with their lives that has not arisen because the British Parliament has decided that this is desirable. It simply was the result of powers in general handed over in 1972 and developed over the years. I don’t think there is a foolproof way of preventing this, but we face a political rather than a legal situation, and I think this is a move, in some degree, that would be helpful.

Q281 Chair: In terms of referendums, which would put a question to the people about European issues, whether it is the specific list set out in the Bill or more generally on the European question overall, do you think that such a referendum should be legally binding?

Professor Minogue: No. I think it should probably not be legally for some of the reasons that your colleague here has been suggesting. It would, however, be difficult, but, in EU experience, it would be by no means impossible for a British Government to defy the results of a referendum. It would have to take them on board.

Q282 Chair: Are you really saying, right at the heart of this entire operation of the Bill, that you can have all the legal safeguards or legal propositions in the world, you can speak of sovereignty in terms of a common law principle and you can have academics from different parts of the United Kingdom converging into this Committee and giving their view, from a legal point of view, but, in your assessment of this as a political scientist-if I can put it that way round-ultimately the question is one of political decision? Therefore, the issues ultimately turn out to be the decision of the electorate as a whole-as a political entity-rather than the more specific legal analysis, which is quite often given to it.

Professor Minogue: I certainly think that is how it ought to happen: it should correspond to what the demos want. On the other hand, the demos are not infallible, and that is why I put references in my submission to international declarations of rights and things of that sort, which also often cause trouble and impose rules upon Britain that the British, with changed circumstances, often find intolerable. Votes for convicts is a recent example of one that combines both issues.

Q283 Chair: Would you be worried at the thought of this being reduced to one main issue, which is difficult, of the ultimate authority in the land on these questions being the Supreme Court? Would you regard that with concern?

Professor Minogue: Yes. I would certainly regard it with concern, because the Supreme Court has a specific professional function, which is interpreting the law and not making judgments of what ought to be the rules for the country. I would be very worried about that.

Q284 Kelvin Hopkins: For me, the justification for referendums is that political systems, whichever one you choose, are all slightly imperfect. There are different outcomes. If you change to PR from first past the post, you get a different outcome. Our system has, essentially, two major parties that are heavily centrally controlled by their leadership, who control the membership of the parliamentary party as well, and the centres are both either openly pro-European or acquiesce in the European Union and are at odds with what the majority of the population clearly want.

It seems to me that, on constitutional matters, there is a case for testing the opinion of the people to put pressure on our politicians. We vote for our major parties for other reasons such as tribal reasons, because one is seen to be more socially democratic and the other is seen to be more pro-big business or whatever. We reluctantly have to go along with the fact that one is pro-European and the other one acquiesces in the European Union, and we don’t really get a choice.

The change from governing ourselves to being governed by a supranational body is a fundamental one, and yet we haven’t really, since 1975, been asked about the direction that we want to go in. I would have had a referendum on the Single European Act and other things since then. That seems to me to be a justification for a referendum, even though referendums themselves are not perfect instruments. It seems to be justified to get the opinion of the British people on a fundamental, constitutional change that they clearly understand and clearly don’t like. I sense that, across Europe, we now have politicians, who are ostensibly democratic, conspiring against their own people, and that is unhealthy and unacceptable.

Professor Minogue: I abound in your sense. I would revert to one of the central points of my submission, which is that what is wrong with the present situation is that we become saddled with laws and regulations made by foreigners, which we cannot repeal. The whole point of national sovereignty as it developed historically in Britain was as a result of too much law, which one couldn’t ignore; one had to find some way of getting rid of it. We found legislative ways of repealing it.

We now find ourselves in the same situation in that social comment and the newspapers are full of rather idiotic rules and laws to which we are subject, many of which we did not enact ourselves, which are misunderstood by people without the corresponding common sense that would be needed to make these laws work as they were intended. This is the situation we face, and I think this Bill is a useful contribution to shifting direction.

Q285 Michael Connarty: My final question relates to the element that we passed over at the beginning. The purpose of the Bill was supposed to be to ensure that no significant transfer of power would go from the UK to the EU without the people having a say through a referendum.

Professor Minogue: No further.

Q286 Michael Connarty: Under clause 4(4)(c) the Bill excludes treaties that deal with accession-so if Turkey, Serbia or, let’s say in the future, Belarus or Ukraine are going to accede. Apart from the fact that you can slip in little clauses that deal with Ireland’s problems, let’s deal with the big question. When an accession takes place, surely this is a major transfer of power. It changes the relationship completely between the UK and the rest of the EU. How can it be justified? Do you think it can be justified that such a referendum is excluded from this Bill?

Professor Minogue: It cannot be justified and accession should also be one of the items that could trigger a lock. There is no doubt about that.

Chair: Professor Minogue, thank you very much indeed for coming.

Professor Minogue: It has been a great pleasure.