HOUSE OF LORDS
Select Committee on the Constitution
13th Report of Session 2010–11
European Union Bill
Report
Ordered to be printed 16 March 2011 and published 17 March 2011
Published by the Authority of the House of Lords
London : The Stationery Office Limited
£price
HL Paper 121
Select Committee on the Constitution
The Constitution Committee is appointed by the House of Lords in each session with the following
terms of reference:
To examine the constitutional implications of all public bills coming before the House; and to keep
under review the operation of the constitution.
Current Membership
Lord Crickhowell
Lord Goldsmith
Lord Hart of Chilton
Lord Irvine of Lairg
Baroness Jay of Paddington (Chairman)
Lord Norton of Louth
Lord Pannick
Lord Powell of Bayswater
Lord Rennard
Lord Renton of Mount Harry
Lord Rodgers of Quarry Bank
Lord Shaw of Northstead
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Professor Adam Tomkins, Legal Adviser, is a Member of and unpaid Ad Hoc Legal Adviser to
Republic.
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European Union Bill
CHAPTER 1: INTRODUCTION
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The Constitution Committee is appointed “to examine the constitutional
implications of all public bills coming before the House; and to keep under
review the operation of the constitution.” In carrying out the former
function, we endeavour to identify questions of principle that arise from
proposed legislation and which affect a principal part of the constitution.
In this report we draw the attention of the House to the European Union
Bill. The Bill was introduced in the House of Commons on 11 November
2010; it received its second reading in that House on 7 December;
committee stage took place over five days on the floor of the House of
Commons in January and February; and the Bill completed its Commons
stages on 8 March. It was introduced in the House of Lords on 9 March and
its second reading debate is scheduled for 22 March.
The House of Commons European Scrutiny Committee has published two
critical analyses of central elements of the Bill. 1 In preparing this report, we
have closely examined those reports and the Government’s two responses.
We have also considered the provisions in the Bill in the light of our 2008
report on the implications for the UK constitution of the Lisbon Treaty 2 and,
in particular, of our report on the role and place of referendums in the UK
constitution. 3
In this report we refer to the Lisbon Treaty, which was agreed in 2007 and
given effect in the UK by the European Union (Amendment) Act 2008. The
Lisbon Treaty made major changes to two other preceding European
treaties:
• Treaty on European Union (TEU)
• Treaty on the Functioning of the European Union (TFEU). Previously
this was the Treaty establishing the European Community (TEC), but it
was renamed because the European Community was replaced with the
European Union (EU).
References in this report to the TEU and the TFEU are to those Treaties as
amended.
Structure and design of the Bill
The European Union Bill is designed to change the way in which the UK
gives its agreement to specified EU decisions and Treaty changes; to
underwrite the doctrine of parliamentary sovereignty in the EU context; and
to allow for an adjustment of seats in the European Parliament.
Part I of the Bill establishes a hierarchy of three control mechanisms or
“locks” on ministerial agreement to future increases in the competence or
power of the EU, more particularly where these involve a transfer of
1
European Scrutiny Committee, 10th Report (2010–11): The EU Bill and Parliamentary sovereignty
(HC Paper 633–1); 15th Report (2010–11): The EU Bill: Restrictions on Treaties and Decisions relating to the
EU (HC Paper 682).
2
Constitution Committee, 6th Report (2007–8): European Union (Amendment) Bill and the Lisbon Treaty:
Implications for the UK Constitution (HL Paper 84).
3
Constitution Committee, 12th Report (2009–10): Referendums in the United Kingdom (HL Paper 99).
4
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competence or power from the UK. It should be noted however that there is
no precise definition of “competence” or “power” in the Bill. 4 The three
types of locks are:
• Act of Parliament and a UK-wide referendum;
• Act of Parliament;
• parliamentary approval by motion.
Part 2 of the Bill gives the requisite approval by Act of Parliament 5 for the
Transitional Protocol on Members of the European Parliament. The
Protocol provides for additional seats during the current term of the
European Parliament. Clauses 16 and 17 make provision for one additional
UK seat (which is allocated to the West Midlands). We make no further
comment in this report on Part 2.
Part 3 of the Bill contains clause 18, the so-called “sovereignty clause”. This
declares the fundamental constitutional principle that ultimate legal authority
remains with Parliament rather than the EU. The status of EU law in the UK
is stated to be dependent on a continuing statutory basis.
This report focuses on those provisions in Parts 1 and 3 of most relevance to
the UK constitution. We note that both Part 1 and clause 18 build on
commitments made in the Coalition’s Programme for Government: 6
• to “amend the European Communities Act 1972 so that any proposed
future treaty that transferred areas of power, or competences, would be
subject to a referendum … The use of any passerelle would require primary
legislation”; and
• to “examine the case for a United Kingdom Sovereignty Bill to make it
clear that ultimate authority remains with Parliament”.
In a letter to the Chairman of this Committee, the Minister for Europe,
David Lidington MP, stated:
“A Programme for Government … set out our firm commitment that
Britain should continue to play a strong, positive and active role in an
enlarged European Union … However, many people in Britain feel
disconnected with how the EU has developed, and the decisions that
have been taken in their name. By rolling out control of these decisions
to the people, this Coalition Government believes that we can help
rebuild trust and reconnect people with these decisions … The Coalition
Government has also examined the case for a United Kingdom
Sovereignty Bill … Following that examination, we have decided to
include a clause which makes clear that it is only by virtue of primary
legislation passed by the UK Parliament that directly applicable or
directly effective EU law falls to be recognised and available in law in the
United Kingdom.” 7
4
According to paragraphs 17 and 20 of the Explanatory Notes, a “competence” is the ability for the EU to
act in a given area, while a “power” is a Treaty change that abolishes national vetoes, removes or amends
an “emergency brake” provision, or confers a new power on an EU institution or body to impose an
obligation or sanctions on the UK.
5
As stipulated in s 5 of the European Union (Amendment) Act 2008.
6
HM Government, The Coalition: our programme for government, chapter 13.
http://www.cabinetoffice.gov.uk/sites/default/files/resources/coalition_programme_for_government.pdf
7
Letter of 11 November 2010 (http://www.parliament.uk/business/committees/committees-a-z/lordsselect/constitution-committee/correspondence-with-ministers1/bill-scrutiny/). See also the initial written
ministerial statement on the Bill: HC Deb 13 September 2010, col 31WS.
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8
5
At third reading in the House of Commons, the Foreign Secretary, Rt Hon
William Hague MP, argued:
“The Bill represents the most significant and radical overhaul of how the
most important decisions in the European Union can be made by the
United Kingdom-decisions on changes to the EU treaties-since the
European Communities Act 1972. It is an overhaul that is as profoundly
needed as it is overdue. It marks a real shift in power from Ministers to
Parliament and from both Ministers and Parliament to voters
themselves.” 8
HC Deb 8 March 2011 col 847.
6
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CHAPTER 2: PART 1 OF THE BILL
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The Bill and the Lisbon Treaty
In our 2008 report on the European Union (Amendment) Bill and the
Lisbon Treaty 9 we explained that the Lisbon Treaty amended the Treaty on
European Union (TEU) in order to expand procedures for amending the EU
Treaties by creating a simplified mechanism in addition to the standard
process for revision. Whilst complex, the provisions of TEU Article 48, and
especially of Articles 48(6) and 48(7), are critical to an understanding of the
European Union Bill.
Article 48 of the TEU provides for both an ordinary revision procedure and
simplified revision procedures. 10 The ordinary revision procedure contained
in Articles 48(2) to 48(5) resembles the previous method in being predicated
on the convening of an Intergovernmental Conference. The simplified
revision procedures contained in Articles 48(6) and 48(7) provide alternative
routes.
Article 48(6) allows for revision of provisions in Part 3 TFEU relating to the
internal policies and action of the EU, subject to a restriction that this kind of
decision shall not increase EU competences. Under this provision the
European Council is required to consult the Commission and the European
Parliament 11 and then act by unanimity.
Article 48(7) provides, subject to exceptions, for a general passerelle or
bridging procedure allowing for changes in the Council’s voting procedures
from unanimity to qualified majority voting (QMV). Under this provision the
European Council is required to act by unanimity and with the agreement of
the European Parliament. This is further subject to veto by a national
Parliament.
Much of Part 1 of the Bill is in fact directed to the simplified revision
procedures, which the Government recognise are likely to be used more
frequently than the ordinary revision procedure. 12 The simplified revision
procedures are commonly described as seeking to grease the wheels of
European integration. Conversely, the control mechanisms set out in
the European Union Bill seek to limit this effect.
Existing control mechanisms
The Bill effectively encompasses, and through the use of the referendum lock
hugely expands on, a number of existing parliamentary locks. In particular: 13
• section 2 of the European Communities (Amendment) Act 1993 requires
the passing of an Act of Parliament before the UK can agree to join the
Euro;
9
Constitution Committee, 6th Report (2007–8), op. cit, chapter 2.
10
See Appendix
11
And the European Central Bank in the case of institutional changes in the monetary area.
12
European Scrutiny Committee, 2nd Special Report (2010–11): The EU Bill: Restrictions on Treaties and
Decisions relating to the EU: Government Response to the Committee’s Fifteenth Report on Session 2010–2011,
paragraph 12. The Lisbon Treaty also contains a number of sectoral passerelles, for example in social policy
and, with exceptions for military and defence matters, in Common and Foreign Security Policy (CFSP).
For an authoritative guide, see J C Piris, The Lisbon Treaty (Cambridge University Press, 2010).
13
See generally, Constitution Committee, 6th Report (2007–8), op. cit.
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7
• section 12 of the European Parliamentary Elections Act 2002 requires an
Act of Parliament in order to approve Treaty amendments which enlarge
the powers of the European Parliament;
• section 5 of the European Union (Amendment) Act 2008 requires an Act
of Parliament before Treaty amendments using the ordinary revision
procedure can be ratified;
• section 6 of the European Union (Amendment) Act 2008 requires the
approval of each House (by means of an unamended motion) for
simplified revision procedures and certain other decisions.
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Control mechanism one: referendum lock
Clauses 2 to 6 of the Bill provide for the so-called “referendum lock”. As
indicated, this is a requirement for the holding of a UK-wide referendum
coupled with an Act of Parliament before a minister may agree to an increase
of EU competence or power. It is the strongest form of control mechanism in
the Bill.
The Explanatory Notes to the Bill highlight the fact that the Government’s
consent to an EU proposal is a pre-condition to triggering the referendum
lock:
“A referendum would only be required if the Government of the day
wanted to support the treaty change in question. If the Government of
the day did not want to support the change in question, it would block
the proposal at the negotiations stage. As all the types of treaty change
that are to be subject to the referendum provisions will have to be agreed
by unanimity at the EU level, the proposal could not form part of a new
treaty or treaty change—and there would then be no need for a
referendum—if the Government did not support the proposal.” 14
Provisions to which the referendum lock applies
Subject to exceptions, clauses 2 to 6 apply the referendum lock to the
ordinary Treaty revision procedure; the simplified revision procedures; the
use of specified passerelle or bridging clauses as contemplated under the
Lisbon Treaty; and certain other decisions made under the EU Treaties.
The Government’s declared intention is “to ensure that there is no ‘wriggle
room’ for bringing decisions on such important areas to Parliament and the
people.” 15 For Treaty amendments using either the ordinary revision
procedure or the simplified revision procedures, exemption from the
referendum lock requires that the Act of Parliament signifying approval states
that the matter does not fall within clause 4. Clause 4 is very wide ranging. It
lists eight types of transfer of competence 16 and five types of transfer of
power 17 which engage the referendum lock. Particular reference must be
made to clause 4(1)(k) and Schedule 1 which, in dealing with passerelle
clauses, specify over 40 Treaty provisions where removing a requirement that
anything should be done by unanimity, by consensus or by common accord
attracts a referendum.
14
Explanatory Notes, paragraph 15.
15
European Scrutiny Committee, 2nd Special Report (2010–11), op. cit, paragraph 88.
16
Clause 4(1)(a)-(h)
17
Clause 4(1)(i)-(m)
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29.
Clauses 3(4) and 4(4) of the Bill provide some other limitations on the use of
the referendum lock. These limitations do not apply uniformly to all the
Treaty changes or decisions which would otherwise attract a referendum.
Clause 3(4) provides for a “significance condition” in relation to decisions
falling solely within clause 4(1)(i) or (j) of the Bill. These concern,
respectively, decisions to confer on an EU institution or body a power to
require the UK to act in a particular way, or to impose sanctions on the UK
for failure so to act. These are both examples of the use of simplified revision
procedures. The significance condition is that the Act providing for the
approval of the decision states that the effect of the provision in relation to
the UK is not significant. Under clause 5(4) the minister must lay a
statement before Parliament indicating whether, in his opinion, a decision
under either provision is significant. In these cases no referendum is required
to be held, but an Act of Parliament would still be required.
Clause 4(4) provides that a treaty or decision does not fall within clause 4
merely because it involves, inter alia, “the making of any provision that
applies only to Member States other than the United Kingdom”. In such
cases, no referendum is required to be held, but an Act of Parliament would
still be required.
The Government pointed out in their response to the report by the European
Scrutiny Committee on Part 1 of the Bill that if a minister decided that the
referendum lock was not engaged under clause 4 “Parliament would have the
opportunity to scrutinise the minister’s assessment during the progress of the
Act, and could add a referendum requirement at that stage if it disagreed.” 18
The precise choice of individual Treaty provisions specified in the Bill has
been the subject of thorough scrutiny by the European Scrutiny
Committee, 19 to which the Government have responded. 20 We do not seek to
rehearse this element of scrutiny in this report. We are concerned with the
broader implications for the UK constitution, especially as regards the very
heavy use of referendum requirements. 21
We draw attention to the complex and highly technical nature of the
referendum lock provisions in Part 1. The multiple specification of
individual Treaty provisions hinders rather than helps transparency
and accessibility in the law.
The role of referendums
The widespread imposition of referendum requirements in the Bill, which is
wholly unprecedented in UK constitutional practice, focuses attention on the
proper role and place of this instrument of direct democracy. In particular,
the question is raised of whether UK-wide referendums are a constitutionally
appropriate and realistic mechanism in the case of many of the specified
Treaty provisions.
Our analysis of these issues is shaped by the conclusions of our 2010 report
Referendums in the United Kingdom. 22 In that report we examined a number of
18
European Scrutiny Committee, 2nd Special Report (2010–11), op. cit, paragraph 35.
19
European Scrutiny Committee, 15th Report (2010–11), op. cit, paragraphs 41–55, 96–103 and 107–111.
20
European Scrutiny Committee, 2nd Special Report (2010–11), op. cit, paragraphs 16–36 and 42–67.
21
See below, paragraphs 28–38.
22
Op. cit. What follows is an outline only of those findings and recommendations which we deem most
relevant to the present Bill.
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30.
31.
32.
9
arguments in favour of and against the use of referendums. 23 On the one
hand, witnesses argued that referendums enhance the democratic process,
they make it difficult to reverse a policy which has demonstrable public
support, they enhance citizen engagement and they are popular with voters.
On the other hand, witnesses argued that referendums are a tactical device
used by the government of the day, they are dominated by elite groups, they
can be a block on progress, they fail to deal with complex issues, voting tends
not to be about the issue in question, they are costly and voters often show
little desire to participate. These arguments are all relevant to consideration
of the current Bill. We concluded that:
“The balance of the evidence that we have heard leads us to the
conclusion that there are significant drawbacks to the use of
referendums. In particular, we regret the ad hoc manner in which
referendums have been used, often as a tactical device, by the
government of the day ... Where possible, cross-party agreement should
be sought as to the circumstances in which it is appropriate for
referendums to be used.” 24
Despite these drawbacks, our report examined the use of referendums to
determine issues of constitutional importance. We concluded that:
“if referendums are to be used, they are most appropriately used in
relation to fundamental constitutional issues. We do not believe that it is
possible to provide a precise definition of what constitutes a
‘fundamental constitutional issue’. Nonetheless, we would consider to
fall within this definition any proposals:
• To abolish the Monarchy;
• To leave the European Union;
• For any of the nations of the UK to secede from the Union;
• To abolish either House of Parliament;
• To change the electoral system for the House of Commons;
• To adopt a written constitution; and
• To change the UK’s system of currency.
This is not a definitive list of fundamental constitutional issues, nor is it
intended to be.” 25
The Government, in their recent response to the report of the House of
Commons Political and Constitutional Reform Committee on the
Parliamentary Voting System and Constituencies Bill stated that:
“The Government also agrees with the [Constitution] Committee’s view
that referendums are most appropriately used in relation to fundamental
constitutional issues, but that it is not possible to provide a precise
definition of this term.” 26
One of the most significant issues to be determined in relation to the
European Union Bill is therefore whether it provides for referendums solely
on fundamental constitutional issues. Under the Bill, only a decision to adopt
23
These arguments are considered in detail in chapter two of that report.
24
Op. cit. paragraph 62.
25
Op. cit. paragraph 94.
26
Government response to the Political and Constitutional Reform Committee’s Report on the
Parliamentary Voting System and Constituencies Bill, Cm 7997, 2011, paragraph 24.
10
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33.
34.
35.
36.
the euro would explicitly fall within the above list, though a major Treaty
revision changing the entire basis of the UK’s membership of the EU would
undoubtedly also constitute a fundamental constitutional issue.
As noted earlier, the Bill provides for a significant number of Treaty changes
and decisions in relation to which a referendum would be required to be
held. While we recognise the existence of a grey area, where it is a matter of
judgement as to the constitutional significance of a given issue, 27 it is hardly
likely that every Treaty change or decision which might trigger a referendum
would involve a fundamental constitutional issue. The following list of
examples illustrates this, but is not exhaustive:
• Clause 4(1)(e) on the extension of an EU competence shared with the
Member States. This case would involve a competence already conferred
on the EU which it is proposed to extend in scope in some way. Article
169 TFEU on consumer protection might be extended by permitting the
EU to legislate for the protection of consumers other than in relation to
the internal market, perhaps on health grounds.
• Clause 6(5)(d) on the extension of the powers of a (yet to be established)
European Public Prosecutor’s Office where the UK participates in that
Office. This case assumes that the decision to establish the Office has
been agreed with UK participation but the scope of its powers is to be
increased.
• Clause 4(1)(k) and Schedule 1 on changing the voting rule in the Council
from unanimity in relation to the power in Article 83(1) TFEU to extend
the list of crimes on which common rules can be adopted.
In seeking to justify the provisions of the Bill, the Government have referred
to the operation and development of EU-related control mechanisms in other
Member States, especially Ireland, Denmark and Germany. 28 No other
Member State provides for referendums to be held on such a wide scale.
Our referendums report also highlighted some of the practical difficulties
associated with referendums. In particular, we examined issues of voter
education and turnout, and of cost to the taxpayer. 29 We note that clause 13
of the Bill provides a role for the Electoral Commission in promoting public
awareness of a referendum held under the Bill. However, there may be a
particular concern in relation to this Bill that it could be difficult to ensure
public understanding of a specific, and possibly quite technical, issue which
could be the subject of a referendum.
The 1975 referendum, which followed renegotiation of the UK’s terms of
entry into the European Economic Community, remains the single example
of a UK-wide referendum held to date. There have, however, been a number
of local and regional referendums in recent years, as well as referendums
relating specifically to devolved powers for Scotland, Wales and Northern
Ireland. There will also be a UK-wide referendum on 5 May on the voting
system for election of Members of the House of Commons. 30 Nonetheless,
27
Op. cit. paragraph 93.
28
HC Deb 13 September 2010, col 31WS. See further, House of Commons Library Research Paper 10/79
(2010): European Union Bill, pp 62–72.
(http://www.parliament.uk/briefingpapers/commons/lib/research/rp2010/RP10-079.pdf)
29
Op. cit. paragraphs 50–56.
30
Parliamentary Voting System and Constituencies Act 2011. This Committee concluded that this was an
appropriate issue on which to hold a referendum; see Constitution Committee, 7th Report (2010–11):
Parliamentary Voting System and Constituencies Bill (HL Paper 58), paragraph 17.
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37.
38.
39.
40.
41.
42.
11
our referendums report concluded that: “Referendums are not a panacea ...
The drawbacks and difficulties of their use are serious.”31
In specifying over 50 policy areas where a referendum would be or might be
required, 32 the European Union Bill is a radical step-change in the
adoption of referendum provisions.
In our judgement, the resort to referendums contemplated in the
European Union Bill is not confined to the category of fundamental
constitutional issues on which a UK-wide referendum may be judged
to be appropriate. Furthermore, many of the Bill’s provisions are
inconsistent with the Government’s statement that referendums are
most appropriately used in relation to fundamental constitutional
issues.
Control mechanisms two and three: Act of Parliament and
parliamentary approval
The second form of lock contained in the Bill is that of approval by Act of
Parliament (with no requirement for a referendum). Subject to exceptions,
clauses 7, 8 and 9 apply this control mechanism to ministerial agreement to
the use of those passerelle clauses which are not considered sufficiently
important to trigger a referendum; to the use of the so-called “flexibility
clause” 33 to adopt measures in order to attain an EU objective; and to the
UK’s opting in to certain types of proposal in the Area of Freedom, Security
and Justice. 34
The third and weakest form of lock stipulated in the Bill is that of
parliamentary approval. This requires a minister in each House of Parliament
to move a motion approving the relevant ministerial decision. Approval is
effected if the motion is passed unamended. Clause 8(4) applies this control
mechanism to certain urgent decisions concerning the adoption of measures
to attain one of the objectives set out in the EU Treaties. Clause 9 applies it
to certain approvals required in connection with the Area of Freedom, Justice
and Security. Clause 10 applies it to ministerial agreement to certain
decisions of the Council of the European Union.
The role of Parliament is one of this Committee’s principal concerns. In
particular, our 2008 report on the implications for the UK constitution of the
Lisbon Treaty placed great emphasis on parliamentary control of future
alterations to the EU Treaties. 35 The detailed specification in clauses 7 to 10
of those measures attracting what in the Bill are the second and third tiers of
control mechanism has also been the subject of detailed scrutiny by the
European Scrutiny Committee. Again, we do not aim to repeat that exercise.
We agree with the re-balancing of domestic constitutional
arrangements in favour of Parliament.
No Parliament may bind its successors
In the Coalition’s Programme for Government, the Government made a
commitment to “ensure that there is no further transfer of sovereignty or
31
Op. cit. paragraph 204.
32
House of Commons Library Research Paper 10/79 op. cit., p 29.
33
TFEU Article 352.
34
TFEU Title V.
35
Constitution Committee, 6th Report (2007–8), op. cit, paragraphs 127–131.
12
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43.
44.
45.
46.
47.
powers in the course of the next Parliament”. 36 The Government’s response
to the European Scrutiny Committee elaborated on this:
“The Government agrees that a Treaty change under the Treaties’
Ordinary Revision Procedure, which would trigger a referendum under
clause 2, should not be negotiated during the lifetime of this Parliament.
This Government has resolved not to agree to any Treaty changes which
transfer power or competence from the UK to the EU for the duration
of this Parliament … This Government certainly does not want to give
up any of the vetoes included in the referendum lock. However, we want
to ensure that the people have their say should any future Government
decide it wishes to surrender one of these vetoes.” 37
Further to the statement concerning future governments, at second reading
in the House of Commons, the Foreign Secretary, Rt Hon William Hague
MP, expressed the hope that “the Bill becomes part of the accepted
constitutional framework of this country.” 38
The referendum lock is primarily designed to target possible
developments during the lifetime of a successor Parliament. We think
it appropriate to reaffirm the fundamental constitutional principle
that no Parliament may bind its successors. 39 We consider it
axiomatic that, as with any other Bill, Parliament could repeal or
amend any or all of the control mechanisms established by the Bill,
including the referendum lock provisions.
Ministerial statements: potential for judicial review
Clause 5 provides that in the case of an agreement either to amend the
Treaties, 40 or to adopt an Article 48(6) decision, 41 the minister is required to
lay before both Houses of Parliament a reasoned statement whether, in the
minister’s opinion, the matter falls within clause 4 (concerning the scope of
the referendum lock).
As previously noted, in the two situations where the significance condition is
in play, the statement must also indicate whether in the minister’s opinion
the transfer of power would be significant. 42 The minister must set out the
reasons for his opinion. 43 We note that the Bill does not seek to clarify the
meaning of “significant”.
Unusually, the Government have in the context of the referendum lock
sought to emphasise the role of judicial review:
“We are confident that the provisions of the EU Bill would provide the
pre-conditions to allow for judicial review in the Courts, in order to
determine whether or not a Minister had acted reasonably in complying
36
HM Government, The Coalition: our programme for government, op. cit, chapter 13.
37
European Scrutiny Committee, 2nd Special Report (2010–11), op. cit., paragraphs 8 and 14. The
commitment extends to any Accession Treaty which includes any transfers of competence or power from
the UK to the EU: paragraph 9.
38
HC Deb 7 December 2010 col 197.
39
The Government have not claimed otherwise: European Scrutiny Committee, 1st Special Report (2010–
11): The EU Bill and Parliamentary sovereignty: Government Response (HC Paper 723), paragraph 29.
40
This uses the ordinary revision procedure.
41
This uses the simplified revision procedures.
42
Clause 5(4). See above, paragraph 23.
43
Clause 5(5).
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48.
49.
50.
13
with the obligations of the Bill … The [Minister’s] statement would
provide the basis on which a judgement could be made as to whether or
not the Minister’s decision is reasonable.
“We cannot, however, give an absolute guarantee that a court would
grant judicial review, or that a case would find against the Minister’s
assessment … Nevertheless, we do believe that by being as clear and
explicit about the criteria for a referendum as we have been in the Bill,
and by specifying the requirement to set out the Minister’s reasoning in
a statement in the way we have done in clause 5, this will maximise the
chances of judicial review.” 44
We accept that ministerial statements required by clause 5 could be
subject to judicial review proceedings.
Impact of the Bill at EU Level
Detailed analysis of the possible impact of the Bill on the internal workings of
the European Union is beyond the scope of this report. 45 We note on the one
hand the potential of the referendum lock to afford UK ministers additional
leverage in the supranational policy-making process. 46 On the other hand, we
note that it may for example encourage other Member States to engage in
enhanced cooperation without the UK or to conclude intergovernmental
agreements outside the EU framework. There is an argument that, since no
other Member State imposes such a large number of referendum locks, the
European Union Bill reflects and reinforces a sense of UK exceptionalism. 47
Sir John Grant, former UK Permanent Representative to the EU, addressed
the issue of the potential impact of the Bill on day-to-day workings in
evidence before the European Scrutiny Committee. When asked what
difference the Bill would have made to the way in which he operated he
replied:
“I think very little. By definition, the working groups of the Council, the
Committee I sat on, and indeed the Council of Ministers, are working
within the competence of the European Union ... you can’t negotiate on
legislation if there isn’t competence. Since the Bill concerns itself with
changes in competence or changes in voting procedure, I think it would
have made no difference.” 48
He added:
“If you go through the specific issues that are caught ... by the Bill and
say to yourself, ‘Well, where are the interests in Brussels that are going
to rise up and feel like the United Kingdom is frustrating an essential
piece of legislation?’, I think, subject to one point [concerning the euro]
... we are not in that situation now. I can’t rule it out for the future,
because anyway, this Government has been fairly categorical about its
44
European Scrutiny Committee, 2nd Special Report (2010–11), op. cit., paragraphs 38 to 39.
45
For detailed consideration see European Scrutiny Committee, 10th Report (2010–11), op.cit, paragraphs
74–89.
46
See European Scrutiny Committee, 2nd Special Report (2010–11), op.cit, paragraph 94.
47
This argument was raised by Andrew Duff MEP in correspondence with the Committee Chairman,
Baroness Jay of Paddington: Letter of 8 February 2011.
48
European Scrutiny Committee, 15th Report (2010–11), op. cit, Q 80.
14
EUROPEAN UNION BILL
51.
refusal, irrespective of the Bill, not to countenance this. So I’m not sure
it changes very much on a view of a few years.” 49
Geared to formal legal change at the European Union level, the
control mechanisms in Part 1 cannot contend with multiple political
and administrative processes of collaboration, co-ordination and
networking that are widely seen as drawing the Member States more
closely together. Nor can these mechanisms control the future
jurisprudence of the Court of Justice concerning the principles of EU
law. 50 We draw attention to these limitations.
49
Ibid.
50
This was examined by the European Scrutiny Committee, 15th Report (2010–11), op. cit, paragraphs 59–
61; see also, European Scrutiny Committee, 2nd Special Report (2010–11), op.cit, paragraph 74. We do
not aim to repeat that scrutiny.
EUROPEAN UNION BILL
15
CHAPTER 3: CLAUSE 18 OF THE BILL
52.
53.
54.
55.
Clause 18 states:
“Status of EU law dependent on continuing statutory basis
It is only by virtue of an Act of Parliament that directly applicable or
directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section
2(1) of the European Communities Act 1972) falls to be recognised and
available in law in the United Kingdom.”
The Explanatory Notes to the Bill state that clause 18 is declaratory of the
traditional dualist view of the United Kingdom constitution, whereby the
rights and obligations created by treaties take effect in our law through the
legislation (or other legal means) enacted to give effect to them. 51 In the
original version of the notes, 52 it was further stated that clause 18 serves:
“to address concerns that the doctrine of Parliamentary sovereignty may
in the future be eroded by decisions of the courts. By placing on a
statutory footing the common law principle that EU law takes effect in
the UK through the will of Parliament and by virtue of an Act of
Parliament, this will provide clear authority which can be relied upon to
counter arguments that EU law constitutes a new higher autonomous
legal order derived from the EU Treaties or international law and
principles which has become an integral part of the UK’s legal system
independent of statute.”
The idea of a declaratory sovereignty clause in the European context is not
new. A similar proposal was in fact made during the passage of the European
Communities Act 1972. 53 The then Government opposed the idea and the
proposed clause was rejected. The Solicitor General, Sir Geoffrey Howe,
characterised such a declaration as “futile … and really a hollow sham ... The
position is that the ultimate supremacy of Parliament will not be affected,
and it will not be affected because it cannot be affected.” 54
Thoburn v Sunderland City Council
The prompt for clause 18 appears to have been Thoburn v Sunderland City
Council, known as the Metric Martyrs case. 55 In this case, an unsuccessful
attempt was made to persuade the High Court that, by entrenching its own
supremacy as an autonomous legal order, EU law prohibited its abrogation
by the Member States. 56 Lord Justice Laws confirmed that, in accordance
with the legislative scheme of the European Communities Act 1972, 57
51
Explanatory Notes, paragraphs 113–114, 119.
52
Paragraph 106 of the Explanatory Notes to the Bill as introduced in the House of Commons.
53
The proposed clause included a specific reference to the Court of Justice: “It is hereby declared that
nothing in the Treaties or in this Act shall detract from the ultimate sovereignty or supremacy of
Parliament or shall prejudice the power and right of Parliament to repeal this Act or to alter any of its
provisions or effects; and any determination of the European Court or of any of the Communities or their
institutions which is inconsistent herewith shall be null and void.”
54
HC Deb 5 July 1972, vol 840, cols 556–647.
55
Thoburn v Sunderland City Council [2003] QB 151.
56
The argument was grounded in European Court of Justice decisions such as Costa v ENEL [1964] ECR
585.
57
More particularly, European Communities Act 1972 ss 2(1), 2(4) and 3(1).
16
EUROPEAN UNION BILL
56.
57.
58.
59.
60.
specific EU rights and obligations become part of UK domestic law and rank
supreme. 58 He held that:
“there is nothing in the ECA which allows the Court of Justice, or any
other institutions of the EU, to touch or qualify the conditions of
Parliament’s legislative supremacy in the United Kingdom. Not because
the legislature chose not to allow it; because by our law it could not
allow it. That being so, the legislative and judicial institutions of the EU
cannot intrude upon those conditions. The British Parliament has not
the authority to authorise any such thing. Being sovereign, it cannot
abandon its sovereignty.” 59
The Government view clause 18 as setting this court ruling in statutory
stone, so putting “the matter beyond speculation for the future”. 60 At second
reading in the House of Commons, the Minister for Europe, David
Lidington MP, described the clause as a “point of reference to which any
future court that considers an argument about the source of authority for
European law in this country must have regard.” 61
The Explanatory Notes state that clause 18 “does not alter the existing
relationship between EU law and UK domestic law; in particular, the
principle of the primacy of EU law”. 62 This statement serves to highlight the
inherent limitations of clause 18 in the face of two different claims to
sovereignty, national and supranational.
We agree with the European Scrutiny Committee that the ruling in
Thoburn reflected the well understood and orthodox position. Clause
18 is self-evident: it restates, but does not change, the law. 63
Parliamentary sovereignty
An argument raised in evidence to the European Scrutiny Committee is that,
by seeking to shield the principle of parliamentary sovereignty only in the
context of EU law, clause 18 may inadvertently invite questions in the courts
about why Parliament did not take the opportunity to seek to reinforce its
sovereignty more generally. In particular, a concern has been raised that
Parliament might be taken to be relaxed about other, evident, threats to the
principle. 64 The Government in their response found “it difficult to see how
clause 18 could be said to be dangerous for other aspects of sovereignty.
Indeed, that is one of the reasons the clause does not mention sovereignty in
terms but rather focuses on practical effects.”65
We are confident that if parliamentary sovereignty were to be
questioned in any other context, the existence of clause 18 would not
prevent the courts from upholding the well understood and orthodox
position.
58
R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603 is the standard authority.
59
Thoburn, op.cit, paragraph 58.
60
European Scrutiny Committee, 1st Special Report (2010–11), op.cit, paragraph 9.
61
HC Deb 7 December 2011 col 271.
62
Explanatory Notes, paragraph 118.
63
European Scrutiny Committee, 10th Report (2010–11), op. cit, paragraph 73.
64
Most obviously in the sphere of human rights: see European Scrutiny Committee, 10th Report (2010-11),
op. cit, paragraphs 62–63 and 85.
65
European Scrutiny Committee, 1st Special Report (2010–11), op. cit, paragraph 24.
EUROPEAN UNION BILL
61.
62.
63.
17
As the European Scrutiny Committee also observed, 66 clause 18 touches on a
contemporary debate about the status and meaning of parliamentary
sovereignty. In particular, the issue is raised of the constitutional basis of the
principle. By the reference to clause 18 “placing on a statutory footing the
common law principle that EU law takes effect in the UK through the will of
Parliament and by virtue of an Act of Parliament”, 67 the original version of
the Explanatory Notes could be read as endorsing one side of the argument,
namely that the sovereignty of Parliament is ultimately a common law—
judicial—construct.
During committee stage in the House of Commons, the Government
undertook to revise the Explanatory Notes to reflect the balance of opinion
on the matter. 68 Paragraph 115 of the Explanatory Notes now states:
“By providing in statute that directly effective and directly applicable EU
law only takes effect in the UK legal order through the will of Parliament
and by virtue of an Act of Parliament, this will provide clear authority
which can be relied upon to counter arguments that EU law constitutes
a new higher autonomous legal order derived from the EU Treaties or
international law and principles which has become an integral part of the
UK’s legal system independent of statute.”
Given the different views that are expressed concerning the constitutional
basis of the principle of parliamentary sovereignty, we commend the
decision to revise the Explanatory Notes.
66
European Scrutiny Committee, 10th Report (2010–11), op.cit, paragraphs 22–28.
67
See paragraph 54 above; emphasis added.
68
HC Deb 11 January 2011 col 250.
18
EUROPEAN UNION BILL
CHAPTER 4: CONCLUSIONS
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
The European Union Bill is a complex Bill, one that contains many highly
technical provisions. This in part reflects the intricate dynamics of European
integration with which the Bill seeks to grapple. But it is also in part the
product of a very detailed specification of, in particular, the referendum lock.
We are concerned that this hinders transparency and accessibility in
an important new element of constitutional law.
The Bill breaks new ground in the UK constitution by its imposition of
referendum requirements on such a large scale. In the terms of our
report, Referendums in the United Kingdom, we note that a measure such as the
UK joining the euro could sensibly be considered a “fundamental
constitutional issue”. But this is not the case with very many of the targets of
referendum locks. We conclude that many of the referendum locks are
unlikely ever to be used, either as a matter of policy or by reason of
practical difficulty.
Clauses 7 to 10 of the Bill represent useful additions to Parliament’s
role.
Clause 18 rehearses the fundamental constitutional principle that
directly effective and directly applicable EU law only takes effect in
the UK legal order through the will of Parliament and by virtue of an
Act of Parliament.
The simplified revision procedures are commonly described as seeking to
grease the wheels of European integration. Conversely, the control
mechanisms set out in the European Union Bill seek to limit this effect.
(Para 16)
We draw attention to the complex and highly technical nature of the
referendum lock provisions in Part 1. The multiple specification of individual
Treaty provisions hinders rather than helps transparency and accessibility in
the law. (Para 26)
The European Union Bill is a radical step-change in the adoption of
referendum provisions. (Para 36)
In our judgement, the resort to referendums contemplated in the European
Union Bill is not confined to the category of fundamental constitutional
issues on which a UK-wide referendum may be judged to be appropriate.
Furthermore, many of the Bill’s provisions are inconsistent with the
Government’s statement that referendums are most appropriately used in
relation to fundamental constitutional issues. (Para 37)
We agree with the re-balancing of domestic constitutional arrangements in
favour of Parliament. (Para 40)
The referendum lock is primarily designed to target possible developments
during the lifetime of a successor Parliament. We think it appropriate to
reaffirm the fundamental constitutional principle that no Parliament may
bind its successors. We consider it axiomatic that, as with any other Bill,
Parliament could repeal or amend any or all of the control mechanisms
established by the Bill, including the referendum lock provisions. (Para 44)
We accept that ministerial statements required by clause 5 could be subject
to judicial review proceedings. (Para 48)
Geared to formal legal change at the European Union level, the control
mechanisms in Part 1 cannot contend with multiple political and
EUROPEAN UNION BILL
76.
77.
78.
19
administrative processes of collaboration, co-ordination and networking that
are widely seen as drawing the Member States more closely together. Nor
can these mechanisms control the future jurisprudence of the Court of
Justice concerning the principles of EU law. We draw attention to these
limitations. (Para 51)
We agree with the European Scrutiny Committee that the ruling in Thoburn
reflected the well understood and orthodox position. Clause 18 is selfevident: it restates, but does not change, the law. (Para 58)
We are confident that if parliamentary sovereignty were to be questioned in
any other context, the existence of clause 18 would not prevent the courts
from upholding the well understood and orthodox position. (Para 60)
We commend the decision to revise the Explanatory Notes. (Para 63)
20
EUROPEAN UNION BILL
APPENDIX: TREATY ON EUROPEAN UNION (TEU), ARTICLE 48
1. The Treaties may be amended in accordance with an ordinary revision
procedure. They may also be amended in accordance with simplified revision
procedures.
Ordinary revision procedure
2. The Government of any Member State, the European Parliament or the
Commission may submit to the Council proposals for the amendment of the
Treaties. These proposals may, inter alia, serve either to increase or to reduce the
competences conferred on the Union in the Treaties. These proposals shall be
submitted to the European Council by the Council and the national Parliaments
shall be notified.
3. If the European Council, after consulting the European Parliament and the
Commission, adopts by a simple majority a decision in favour of examining the
proposed amendments, the President of the European Council shall convene a
Convention composed of representatives of the national Parliaments, of the Heads
of State or Government of the Member States, of the European Parliament and of
the Commission. The European Central Bank shall also be consulted in the case
of institutional changes in the monetary area. The Convention shall examine the
proposals for amendments and shall adopt by consensus a recommendation to a
conference of representatives of the governments of the Member States as
provided for in paragraph 4.
The European Council may decide by a simple majority, after obtaining the
consent of the European Parliament, not to convene a Convention should this not
be justified by the extent of the proposed amendments. In the latter case, the
European Council shall define the terms of reference for a conference of
representatives of the governments of the Member States.
4. A conference of representatives of the governments of the Member States shall
be convened by the President of the Council for the purpose of determining by
common accord the amendments to be made to the Treaties.
The amendments shall enter into force after being ratified by all the Member
States in accordance with their respective constitutional requirements.
5. If, two years after the signature of a treaty amending the Treaties, four fifths of
the Member States have ratified it and one or more Member States have
encountered difficulties in proceeding with ratification, the matter shall be referred
to the European Council.
Simplified revision procedures
6. The Government of any Member State, the European Parliament or the
Commission may submit to the European Council proposals for revising all or part
of the provisions of Part Three of the Treaty on the Functioning of the European
Union relating to the internal policies and action of the Union.
The European Council may adopt a decision amending all or part of the
provisions of Part Three of the Treaty on the Functioning of the European Union.
The European Council shall act by unanimity after consulting the European
Parliament and the Commission, and the European Central Bank in the case of
institutional changes in the monetary area. That decision shall not enter into force
EUROPEAN UNION BILL
21
until it is approved by the Member States in accordance with their respective
constitutional requirements.
The decision referred to in the second subparagraph shall not increase the
competences conferred on the Union in the Treaties.
7. Where the Treaty on the Functioning of the European Union, or Title V of this
Treaty, provides for the Council to act by unanimity in a given area or case, the
European Council may adopt a decision authorising the Council to act by a
qualified majority in that area or in that case. This subparagraph shall not apply to
decisions with military implications or those in the area of defence.
Where the Treaty on the Functioning of the European Union provides for
legislative acts to be adopted by the Council in accordance with a special legislative
procedure, the European Council may adopt a decision allowing for the adoption
of such acts in accordance with the ordinary legislative procedure.
Any initiative taken by the European Council on the basis of the first or the second
subparagraph shall be notified to the national Parliaments. If a national Parliament
makes known its opposition within six months of the date of such notification, the
decision referred to in the first or the second subparagraph shall not be adopted. In
the absence of opposition, the European Council may adopt the decision.
For the adoption of the decisions referred to in the first and second subparagraphs,
the European Council shall act by unanimity after obtaining the consent of the
European Parliament, which shall be given by a majority of its component
members.