Wednesday, 24 November 2010

European Union Bill - a further look .....

This blog recently looked at the European Union Bill presented to Parliament on 11th November 2010.  This post refers to various Clauses in the Bill as it stood on that date.  As the Bill passes through Parliament the numbering may change.

The Treaties:  The two principal treaties are now the Treaty on European Union (TEU) and and the Treaty on the Functioning of the European Union (TFEU) - see Official Journal.

TEU Art. 12 states that "National Parliaments contribute actively to the good functioning of the Union" in ways set out in Art. 12 (a) to (f).  Art 12 (d) states - "by taking part in the revision procedures of the Treaties, in accordance with Art. 48 of this Treaty."

Amending the Treaties:   TEU Art. 48 sets out two methods for amending the Treaties.

"Ordinary Revision Procedure" detailed in Art. 48(2) to 48(5).  This is used for the major changes (e.g. the Lisbon Treaty) which was negotiated by Heads of Government and the detail developed through an Inter-Governmental Conference (IGC).  Such major treaty revisions are fairly rare events.

"Simplified Revision Procedure" set out in Art. 48(6) which applies only to Part 3 of the TFEU (Internal policies and action of the European Union).  Nevertheless, because of the sheer scale of TFEU Part III, the simplified procedure can be applied to numerous areas.

TFEU Part III:  This is concerned with the "Union policies and internal actions."  That phrase covers some 24 areas in which the Union has some form of "competence" - (e.g internal market, free movement of goods, agriculture and fisheries, free movement of persons, services and capital, transport etc.)  The precise scope for the EU to act varies according to the subject-matter in question.  A number of the areas are particularly contentious within the U.K. - e.g. Title V (Area of Freedom, Security and Justice); Title VII (Common rules on competition., taxation and approximation of laws) or Title VIII (Economic and Monetary Policy).

In addition to the ordinary and simplified revision procedures, the treaties contain various articles - often referred to as passerelles (or, less elegantly, as ratchet clauses) -which permit various decisions to be made.

European Union Bill:  The basic aim of the Bill is to alter the constitutional arrangements used by the U.K. before treaty revisions may be ratified or before certain european decisions are agreed to or approved.  The Bill should increase the involvement of the UK Parliament and, to an extent, the electorate in Treaty amendments.  What follows is a necessarily brief look at the key clauses of the Bill.

Under Clause 2 of the Bill, a treaty amending or replacing TEU or TFEU may not be ratified by the UK unless (a) a Ministerial statement (complying with Clause 5) relating to the Treaty is laid before Parliament; (b) the treaty is approved by Act of Parliament and (c) the "referendum condition" or the "exemption condition" is met.  Clause 4 sets down cases where a treaty will (usually) "attract" a referendum.   Clause 5 deals with the Ministerial statements.   The Ministerial statement has to state, together with reasons, whether a treaty comes with Clause 4.  The "exemption condition" arises where the Act providing for the approval of the Treaty states that the Treaty does not fall within Clause 4.

Clause 3 of the Bill is concerned with approval by the UK of European Council decisions under Art. 48(6).  UK Ministers may not confirm approval of such decisions unless Clause 3 is complied with.  This has similarities with Clause 2.  There has to be a statement (complying with section 5) stating Ministerial opinion whether the decision comes with Clause 4 (i.e. whether it attracts a referendum).  The decision must be approved by Act of Parliament.  Further, the "referendum condition" or the "exemption condition" or the "significance condition" must be met.
The "significance condition" applies only where the Act providing for approval of a decision states that (a) the decision falls within Clause 4 only because it makes provision of the kind mentioned in Clause 4(1)(i) or (j) and (b) the effect of that provision in relation to the UK is not significant.  Clause 4(1)(i) states:-

(i) the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body";

 and (j) states:

"the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom."

Just what is and is not significant is likely to prove to be a source of considerable difficulty.  Some might argue that ANY extension of EU power is significant.

Clause 6 sets down a list of european decisions which will require approval by referendum / Act of Parliament.  Key examples in the list include TFEU Art. 86(1) - "European Prosecutor's office" and TFEU Art. 140(3) - the European Currency ("euro").

Clause 7 applies to certain european decisions  which will have to be approved by Act of Parliament.  An example here is a decision to increase the size of the European Commission.

Clause 8 is concerned with decisions taken under TFEU Art. 352 and the clause will prevent Ministers voting in favour of or otherwise supporting an Article 352 decision unless certain requirements are met.  Art. 352 enables the EU to adopt measures in certain cases where the Treaties do not otherwise provide a specific authority to act.

Clause 9 - deals with approval of decisions coming within Title V of of Part 3 of TFEU concerned with the Area of Freedom, Security and Justice.

Clause 10 - introduces parliamentary control of certain decisions which will not require approval by Act of Parliament.  Examples here are TFEU Art. 56 decisions (relating to restrctions on non-EU nationals to provide services within the EU) or TFEU Art. 252 (Number of Advocates-General in the Court of Justice of the EU).

Clause 11 - deals with who may vote in a referendum.  This is basically those entitled to vote in a British general election.

Clause 12 - If a referendum is held and it relates to two or more treaty revisions or decisions then there will have to be a separate question on the ballot paper for each one.

Clause 13 - addresses the role of the Electoral Commission in promoting public awareness of any referenda and also of the subject-matter.

Clause 14 - deals with some consequential amendments to legislation and repeals.

The Bill contains some other material - including Clause 18 - discussed in the earlier post on this blog.

It remains to be seen whether these clauses will, if eventually enacted, ensure that there actually is a referendum in most instances where the U.K. is to cede power to the EU or whether, in practice, Ministers will seek to invoke, for example, the "exemption condition" or perhaps the "significance condition" where it is applicable.  The Explanatory notes published along with the Bill claim that Ministerial statements under section 5 will enable a member of the public to seek to challenge in the courts the judgment of the Minister as provided in the statement.  However nice that might be in theory, the hypothetical member of the public would, in practice, face massive costs and maybe insuperable obstacles.  The proper place for challenges to such Ministerial opinion must surely be in Parliament itself.  It is to be hoped that Parliament will have the mechanisms in place to ensure that this is possible.  Parliamentary scrutiny of European matters will need to be enhanced.

Addendum 25th November:  An interesting post appears on barrister Carl Gardner's blog "Head of Legal" - see "The EU Bill in the European Scrutiny Committee"

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