Appendix: Government response
The Government takes note of the report from the
House of Commons European Scrutiny Committee. This paper sets
out the Government's response to each of the Committee's conclusions
and recommendations addressed to Government. The Committee's text
is in bold and the Government's response is in plain text. Paragraph
numbers in parentheses refer to the Committee's report.
Committee's conclusions and recommendations
· Engagement
with Parliament and others
We share the House of Lords' EU Committee's concern
that presenting Parliament with a 'fait accompli' could give rise
to legitimate concerns about the accountability and transparency
of both the process itself, and its outcome. We consider the approach
adopted by the Government to be reactive and opaque. It places
the onus on Parliament to guess when to request information and
evidence, without information about the progress of the negotiations.
(Paragraph 21)
We asked for an analysis of the reaction from
other Member States to the Prime Minister's letter, with particular
reference to immigration and availability of benefits. The Foreign
and Commonwealth Office refused our request on the grounds that
this fell under the category of "providing a running commentary
of the renegotiation", which the Minister for Europe had
said the Government would avoid. We note that Mr Tusk made reference
to these matters in his assessment of Member States' reactions.
This episode has served only to reinforce our frustration about
the transparency of the process and the lack of meaningful Parliamentary
engagement. (Paragraph 22)
Parliament has a legitimate role in influencing
the negotiation. It is disappointing that Parliament was not given
a chance to debate the four main "asks" before the Prime
Minister sent his letter of 10 November to the President of the
European Council. Allowing it to debate only the "final offer"
would be unacceptable. We consider it paradoxical that such an
approach is being advocated by a Government professing to negotiate
for a greater role for national Parliaments at EU level. (Paragraph
23)
A negotiated settlement could well relate to powers
which have been devolved, and so might require a Legislative Consent
Motion from the Scottish Parliament and the other devolved assemblies.
It is disappointing that none of the Devolved Administrations
were consulted about the terms of the Prime Minister's letter
of 10 November. We are not convinced that the Government has yet
taken the need for genuine engagement with the Devolved Administrations
seriously. (Paragraph 24)
During the remaining course of the negotiations,
we expect the Government to:
Provide a detailed update on the outcome of the
European Council on 17 and 18 December, first in written form
(as the House rises for the Christmas recess on 17 December),
as well as a statement by the Prime Minister on the Council on
5 January 2016. This should be followed by regular debates on
amendable motions, including some of the outstanding debates we
have recommended, for the remainder of the process.
Respond fully to this Report in the context of
the outcome of the December Summit as soon as the House returns
after the Christmas recess.
Consult and engage meaningfully with the Devolved
Administrations, the Commission and the European Parliament.
Consider carefully within the context of the negotiations
the conclusions and recommendations of this Report and further
Reports produced in the course of this inquiry. (Paragraph 25)
We note the Minister for Europe's commitment in
the Commons debate on the EU Referendum Bill of 8 December, that
when the Government provides the information envisaged by the
Lords amendments (see para 19), it will do so with accuracy and
impartiality. (Paragraph 26)
HM Government response
The Government is committed to keeping Parliament
informed of the progress of the renegotiation. Although the Government
is unable to provide a running commentary on ongoing and sensitive
negotiations, it has been keeping Parliament informed and will
continue to do so, including through regular Ministerial appearances
before Parliamentary Committees in both Houses of Parliament.
The Foreign Secretary gave evidence to the European
Scrutiny Committee on 17 November 2015 and appeared before the
House of Lords European Union Committee on 26 January 2016. The
Chancellor of the Exchequer gave evidence to the Treasury Select
Committee on 1 December 2015 and the Minister for Europe gives
evidence to Committees on a regular basis, most recently on 14
December 2015 before the December European Council. The Minister
for Europe responded to a Westminster Hall debate on the UK's
renegotiation of its membership of the European Union on 5 January.
The Government also shared the Prime Minister's letter
to President Tusk with Parliament, with the Minister for Europe
making an oral ministerial statement in the House of Commons on
10 November 2015. The Minister for Europe also responded for the
Government in a Westminster Hall debate that day about the EU
renegotiation and Devolved Administrations. The renegotiation
is regularly raised at Foreign and Commonwealth Office Oral Questions
- most recently on 12 January 2016 - and Ministers are answering
a large number of written questions on this issue.
The Prime Minister made an oral statement to the
House of Commons on 5 January once the House had returned from
recess, updating Parliament on the extensive discussion of all
four areas of our renegotiation at the December European Council.
The Prime Minister informed the House that he had set out the
four areas where the UK is seeking significant and far-reaching
reforms, that there had been extensive discussion of all four
areas and that the Council committed to "work closely together
to find mutually satisfactory solutions in all the four areas".
The Government notes the Committee's comments on
engagement with the Devolved Administrations. Foreign policy issues
are a reserved matter and relations with the European Union are
the responsibility of the Parliament and Government of the United
Kingdom. However, the UK Government continues to involve the Devolved
Administrations as directly and fully as possible in decision-making
on EU matters that touch on devolved areas.
For example, EU reform is a standing agenda item
at the Joint Ministerial Committee on Europe, which is chaired
by the Minister for Europe or the Foreign Secretary and at which
the Devolved Administrations are represented at Ministerial level.
The Foreign Secretary and Minister for Europe also meet regularly
with representatives from the Devolved Administrations to discuss
this issue and will continue to do so. The Foreign Secretary met
the Scottish First Minister in London in September and in Edinburgh
in January and the First Minister of Wales in December. The Minister
for Europe met the Cabinet Secretary for Culture, Europe and External
Affairs from the Scottish Government in November in Edinburgh,
and visited Cardiff for discussions with the Welsh Government
in December. The Minister for Europe hopes to visit Northern Ireland
in the near future.
The Government notes the Committee's recommendation
about engagement with the European institutions. Contact with
the EU institutions on the renegotiation continues on a frequent
basis. Most recently, the Chancellor of the Exchequer met President
Juncker on 15 January and the Foreign Secretary met First Vice-President
Timmermans on 18 January.
The Government notes the Committee's remarks on the
provision of public information before the referendum. The EU
Referendum Act 2015 commits the Government to publish information
on the outcome of the renegotiation and the Government's opinion
on what has been agreed, on rights and obligations arising from
EU membership and on alternatives to EU membership. This information
must be published at least ten weeks before the referendum is
held.
Committee's conclusions and recommendations
· A
legally binding and irreversible agreement?
The requirement or otherwise to amend the Treaty
will be a key factor in the negotiability of any particular UK
renegotiation objective. We have therefore taken evidence from
a broad range of legal experts which have informed our conclusions.
(Paragraph 30)
The process of ratification of Treaty amendment
is unlikely to be completed by other Member States before the
referendum takes place. Furthermore, there are substantial difficulties
in both (a) an immediately effective interim alternative to Treaty
amendment (such as a "Decision of the Heads of State and
Government Meeting within the European Council") and (b)
a legally binding and irreversible agreement to ratify Treaty
amendment sometime in the future. It will be necessary for the
Government to set out which elements of the renegotiation package
require Treaty amendment. (Paragraph 49)
Simple clarification or supplementation of the
existing Treaties could be achieved by an international agreement.
This would be consistent with EU law but its limited nature is
not compatible with the realisation of "the opportunity to
reform the EU and fundamentally change the UK's relationship with
it" envisaged by the Prime Minister in his statement to the
House of 23 March 2015. (Paragraph 50)
The deliberate distinction the Prime Minister
made between EU reform and fundamental change to the UK's relationship
with the EU is important. The latter is a matter of constitutional
significance such as to justify in itself the forthcoming referendum.
However, this fundamental change is not now on the Government's
agenda. Therefore voters faced with the question whether to remain
in or leave the EU will not have the choice of remaining in an
EU with which the UK's relationship is fundamentally changed.
(Paragraph 51)
Any secondary EU legislation needed to implement
the renegotiation outcome is unlikely to be fully in place before
the referendum and, in any case, is unlikely to cover all the
areas of renegotiation. Any general commitment to adopt such legislation
may prove difficult to deliver in practice as the legislative
procedures involve both the Commission and European Parliament,
and negotiation of the precise text could reveal differences not
covered by a more general commitment. (Paragraph 57)
HM Government response
The Government is fighting hard to fix the aspects
of our EU membership that cause so much frustration in the United
Kingdom - so we get a better deal for our country and secure our
future. In the end, the British people will decide whether we
are stronger and better off with our European neighbours as part
of the European Union or on our own. That is because we made a
promise and kept it - to deliver an in-out referendum.
The Prime Minister has been very clear in his discussions
with other leaders that the changes we are seeking must be legally
binding and irreversible. On the Committee's remarks about
Treaty change, the Prime Minister's position remains that some
of the reforms we are seeking will require Treaty change and we
must have agreement to such Treaty change before the referendum.
Committee's conclusions and recommendations
· Economic
governance
The Eurozone is not a legal entity and so the
UK and other non-Eurozone Member States are directly affected
- through our EU membership - by decisions that are made for Eurozone
Member States. There are no certainties about how the Eurozone
will integrate further and the extent to which that integration,
through qualified majority voting, might affect UK national interests
in the wider single market and other EU policies. It is politically
and legally right that the Government negotiate to adopt safeguards
against the risk that Eurozone Member States could caucus together
against the interests of the European Union as a whole. This is
a particular risk since the entry into force of revised Council
voting arrangements that gives the 19 Eurozone member States a
qualified majority should they all agree. (Paragraph 67)
We consider that the regulation of the relationship
between Eurozone and non-Eurozone Member States is of such importance
that it requires the security of treaty amendment. In particular
this is necessary to secure, in a manner that provides legal certainty,
a double majority system in relation to economic governance. (Paragraph
74)
We are reinforced in the view that treaty amendment
is necessary by the episode when the European Financial Stability
Mechanism (to which non-Eurozone Member States contribute) was
used to bail out Greece urgently in the face of an earlier agreement
by the Council that this would not be done. In this case, associated
guarantees were given that non-Eurozone Member States would not
suffer financially, but the precedent is troubling. (Paragraph
75)
It should be made absolutely clear that any safeguard
to protect UK national interests must be made available across
the broad range of EU legislation and not just for legislation
adopted under an internal market or economic and monetary policy
legal base. (Paragraph 76).
HM Government response
The Government has been clear that it is seeking
to ensure that, as the Eurozone continues to integrate, the interests
of those countries outside the Eurozone are protected and the
integrity of the Single Market respected. The Prime Minister set
out the principles and protections that we are seeking in his
letter to President Tusk on 10 November 2015. As well as making
these principles permanent and legally binding, we want to agree
a simple safeguard mechanism to ensure that they will be respected
and enforced.
On the Committee's remarks about Treaty change, the
Prime Minister's position remains that some of the reforms we
are seeking will require Treaty change and we must have agreement
to such Treaty change before the referendum.
Committee's conclusions and recommendations
· Competitiveness
The Government's priorities under the competitiveness
agenda are closely aligned with the Work programme of the Juncker
Commission, which has shown a significant and welcome change in
emphasis towards the UK's agenda on deregulation and competitiveness.
The Committee expects this part of the renegotiations to be the
easiest in which the Government can meet its aims. While there
is merit in giving extra impetus to these efforts, this aspect
of the renegotiation cannot be regarded as a fundamental change
in the UK's relationship with the EU. (Paragraph 89)
Being work in progress and involving, at most,
changes to EU secondary legislation, significant parts of this
agenda are unlikely to be adopted before the referendum. This
gives rise to the problem of uncertainty highlighted in chapter
three. (Paragraph 90)
HM Government response
The Government wants to build on recent progress
that the Juncker Commission has made to increase competitiveness,
reduce the burden of regulation and stimulate growth. As the Prime
Minister's letter to President Tusk explained, the Government
would like to see the EU go further. The Government would like
to see a cut to the total burden on business and believes in bringing
together the different proposals, promises and agreements on the
Single Market, on trade and on better regulation into a clear
long-term commitment to boost the competitiveness and productivity
of the European Union.
Committee's conclusions and recommendations
· Sovereignty:
ever closer union
The concept of "ever closer union" as
found in the Treaties is more nuanced than a simple aspiration
for deeper EU integration as mentioned in the 2014 European Council
Conclusions. It also embraces the idea of a closer union of "the
peoples of Europe" and, in the TEU, is linked to the aspiration
for transparent and local decision-making. (Paragraph 114)
Some of the experts we consulted said that the
concept is of limited legal importance, is largely symbolic and
that UK disengagement would fall short of the fundamental change
in the existing relationship of the UK to the EU to which the
Prime Minister aspires. This is particularly so given that UK
disengagement would not, strictly, apply retrospectively to the
existing EU acquis of Treaties and legislation. Its importance
could be enhanced if combined with a successful outcome of Eurozone
safeguards if that could be achieved or if deployed politically
in future Treaty negotiations or to help interpret any UK opt-out.
(Paragraph 115)
Given that the concept of "ever closer union"
is embedded in Article 1 TEU, Treaty amendment will be required
for UK disengagement from the concept to be legally robust. Care
will need to be taken with drafting to ensure the reform does
not undermine other concepts associated with "ever closer
union" such as democratic accountability of the EU and citizens'
rights. The scope of the concept, and the fact that it will remain
applicable for all or some other Member States, require clear
explanation to the electorate. (Paragraph 116)
Some of the key considerations in assessing the
effect of the UK withdrawing from a commitment to "ever closer
union" are as follows:
There is already a substantial legal and political
recognition that different levels of integration are permissible;
There are other drivers for integration in the
Treaties which the Court of Justice and other EU institutions
may invoke, should they wish to do so;
The Court, if it were seeking to use the concept
as an aid to interpretation of other provisions of the treaties
or EU secondary legislation, would be faced with the problem that
- although the Treaty provision or legislation applied to all
Member States - the concept of "ever closer union" did
not; and
The UK risks being marginalised. (Paragraph 117)
HM Government response
The Government is seeking to end the UK's obligation
to work towards an 'ever closer union' as set out in the Treaty.
The Prime Minister's letter to President Tusk stated that we are
seeking legally-binding and irreversible changes that will make
clear that this commitment will no longer apply to the United
Kingdom. The Government notes the Committee's comments, and those
of the experts it consulted, but believes that 'ever closer union'
does matter and that it is not purely a symbolic issue - we want
the UK to be permanently protected from any further European political
integration.
On the Committee's remarks about Treaty change, the
Prime Minister's position remains that some of the reforms we
are seeking will require Treaty change and we must have agreement
to such Treaty change before the referendum.
Committee's conclusions and recommendations
· Sovereignty:
national parliaments and sovereignty
The question before the voters will be whether
to remain in or leave the EU. There will be those with fixed views
one way or another, irrespective of the renegotiation. For the
others, the option of remaining in the EU will focus on the adequacy
or otherwise of the package negotiated on the basis of the Prime
Minister's letter to Mr Tusk of 10 November. However the letter
does not address the question of a fundamental change in the UK's
relationship with the EU, which must be distinguished from reform
of the EU because it concerns national sovereignty. We are disturbed
that the stark alternative presented to the voter, of staying
in or leaving the EU, does not adequately address this issue.
(Paragraph 130)
The Committee recalls that the European Communities
Act 1972 (which remains the UK enactment which governs the voluntary
acceptance by the UK of the European Union) was based on a preceding
White Paper highlighting, first, that, "All the countries
concerned recognise that an attempt to impose a majority view
in a case where one or more members considered their vital interests
to be at stake would imperil the fabric of the Community";
and, second, that in the absence of unanimity in the Council,
"where member states' vital interests are at stake, it is
Community practice to proceed only by unanimity". (Paragraph
131)
The Prime Minister correctly asserted in his Bloomberg
speech that "It is national parliaments which are and will
remain the true source of democratic legitimacy and accountability
in the EU". The red card as it is proposed represents a practical
threat to the exercise of UK parliamentary sovereignty as it makes
the will of the UK parliament in a particular case subordinate
to the differing collective view of a group of parliaments. (Paragraph
132)
In any event lessons must be learnt from the current
subsidiarity reasoned opinion procedure in respect of the yellow
card, as with the Commission's dismissal of concerns about the
proposal for a European Public Prosecutor Office, even though
the yellow card threshold was passed. Furthermore, any red card
procedure must not be limited in its scope to subsidiarity alone
and must have thresholds and deadlines that would enable it to
become an effective tool. (Paragraph 133)
HM Government response
The Government is seeking to take the UK out of 'ever
closer union' and get more power for national parliaments. As
the Prime Minister explained in his letter to President Tusk,
he wants to enhance the role of national parliaments and is proposing
a new arrangement where groups of national parliaments, acting
together, can block unwanted legislative proposals. The Government
notes the Committee's comments about possible thresholds; the
precise thresholds of national parliaments required will be a
matter for the negotiation.
Committee's conclusions and recommendations
· Immigration
We note that there is a gap between the Government's
objective of reducing net migration of over 300,000 people per
year and the proposals now on the table. There is little evidence
to suggest that the proposals - focussed on reducing the magnetism
of the UK's benefits system - will fully address the concerns
highlighted relating to the levels of net migration, though they
could address concerns about the benefits being paid to those
who are not entitled to them. (Paragraph 141)
The question of whether Treaty amendment is necessary
to implement the UK's renegotiating objectives in the field of
immigration is difficult to resolve in the absence of sufficient
detail as to the outcome of the renegotiation. Even then, uncertainty
may remain in some areas due to the deep involvement of the Court
of Justice. That in itself suggests some Treaty amendment will
be necessary in order to make the outcome of the renegotiation
"judge-proof". (Paragraph 145)
Even if Treaty amendment is not necessary in this
area, changes to secondary EU legislation will be. As we outline
below, this will be difficult to negotiate and it will be difficult
to secure binding commitments to achieve such legislation for
the reasons outlined in chapter 3. (Paragraph 146)
Limited though the promised changes to immigration
and the availability of benefits are, the political and legal
challenges of negotiating them - with or without affecting the
rights of UK citizens - are formidable. Our ability to assess
the Government's likely success in its negotiations would be improved
by greater access to information available to the Government while
the process is underway. (Paragraph 153)
HM Government response
The Government is seeking to reduce immigration by
cutting the benefits EU migrants get, so we prevent our welfare
system acting as a magnet and create a fairer system for people
who work here and play by the rules. The Prime Minister's letter
to President Tusk set out that the UK believes in a open economy
- but that we have got to be able to cope with all the pressures
that free movement can bring, and right now the pressures are
too great. The Government has proposed that people coming from
the EU must live here and contribute for four years before they
qualify for in-work benefits or social housing. As the Prime Minister
said in the House on 5 January, the most difficult issues at the
December European Councils were around free movement and welfare
- but there was a great deal of goodwill and the Council agreed
to work closely together to find mutually satisfactory solutions
in all the four areas of our renegotiation.
On the Committee's remarks about Treaty change, the
Prime Minister's position that some of the reforms we are seeking
will require Treaty change has not changed and we must have agreement
to such Treaty change before the referendum.
| 
