Wednesday, 7 December 2011

So - will a referendum be required?

The Guardian 7th December - "David Cameron has threatened to wield Britain's veto to block a revision of the Lisbon treaty if fellow European leaders refuse to protect the position of the City of London at the EU summit in Brussels.  In a marked hardening of his rhetoric, as Eurosceptic Tories called for a recasting of Britain's relationship with the EU, the prime minister said he would not sign any treaty that failed to provide safeguards for Britain's financial services."

Until recently, whether a referendum was held in the UK on anything to do with the European Union (EU) would ultimately have been a matter for Parliament to decide.  There would have been no legal obligation whatsoever to hold a referendum irrespective of what politicians may have said or inserted into election manifestos.  However, since 19th September 2011, the European Union Act 2011 is in force.

The Act requires, in some situations, a referendum to be held (and a favourable majority obtained) before ratification of any treaty which amends or replaces either (or both) of the Treaty on European Union (TEU) or the Treaty on the Functioning of the EU (TFEU) - see the Treaties.

However, it will not
be every new treaty which triggers a referendum.  IF the new treaty actually amends or replaces TEU or TFEU then it is necessary to look at section 2 of the 2011 Act which is worth stating in full:

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless -
(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,
(b) the treaty is approved by Act of Parliament, and
(c) the referendum condition or the exemption condition is met.
(2) The referendum condition is that—
(a) the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held throughout the United Kingdom or, where the treaty also affects Gibraltar, throughout the United Kingdom and Gibraltar,
(b) the referendum has been held, and
(c) the majority of those voting in the referendum are in favour of the ratification of the treaty.
(3) The exemption condition is that the Act providing for the approval of the treaty states that the treaty does not fall within section 4.

The requirement in section 2(1)(a) is that a section 5 statement be laid before Parliament stating whether the new treaty comes within section 4.  If it does, then a referendum will be required.  If the treaty does not come within section 4 then the so-called "exemption condition" is met and a referendum would not be required.

This week there have been statements from politicians that only those treaties which transfer powers to the EU require a referendum.  Such statements are perhaps, broadly-speaking, accurate but they are something of an over-simplification.  Let's look at section 4  more closely.

It will be seen that section 4 sets out 13 situations where a new treaty would attract a referendum - they are in section 4(1) at (a) to (m).   Certain treaties will not come within section 4 and these are listed in section 4(4) and include "the making of any provision that applies only to member States other than the United Kingdom."

Thus, it may be argued that a treaty arrived at between just the 17 eurozone members would not come within section 4.  This would probably be so even if, as seems highly likely, such a treaty impacted economically or politically on the UK.

Some cases where a treaty would come within section 4 include - (f) "the extension of the competence of the EU in relation to - (i) the co-ordination of economic and employment policies, or ...  (g) the conferring on the EU of a new competence to carry out actions to support, co-ordinate or supplement the actions of member States; ... or (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; .. or
(j) the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom."

Thus, for a referendum to be required by law, the new treaty would have to amend either TEU or TFEU (or both); there would have to be a Ministerial statement that the new treaty is caught by section 4.  In such a case, a referendum would have to be held and a majority in favour obtained.  Parliament could then pass an Act providing for the new treaty to have effect in domestic law and enabling the government to ratify the new treaty so that it becomes binding on the UK in international law.

A final point needs to be made.  The wording of the 2011 Act does not make a referendum a vote on membership of the EU or withdrawal from the EU.  Any referendum held would be on the narrower question of whether the UK may ratify the new treaty.  This follows from the wording of section 2.

Plenty of scope - (weasel words ?) - here for the government lawyers and politicians to find that any new treaty does not actually require the referendum that many are demanding.   Of course, the economic and political consequences of any new treaty will be immense and this applies even to a treaty applicable to just the 17 eurozone States.  Such questions are for the political analysts to consider.  However, for those who wish to pursue this, the European Council President (Herman Van Rompuy) has set the scene in "Towards a Stronger Economic Union" - 6th December and see The Guardian 7th December "EU summit signals crunch time for Cameron at home and abroad."


  1. It's interesting that Cameron is citing patriotism & “Defending Britain” by opposing the banking transaction tax - a key demand of Merkel and Sarkozy.

    Thanks to the 'Super Weasel' team for your analysis of whether a referendum would/should be held. I do not think that a referendum will be posited if any likely voting outcome would not be to the government's liking. Or it willbe subject to a minimum target % of voters turnout which will be difficult to achieve in these apathatic times.

  2. Jan - thanks for the comment. The law requires a referendum but only in the situations coming within the 2011 Act. If the government fears the outcome of a referendum, I have no doubt that they would seek to argue that the new treaty does not come within the Act. However, given the terms of the Act, this may not be possible.

    In the event of a referendum being held in relation to a new treaty, a simple majority in favour seems to be all that the 2011 Act requires. Short of amending the Act, there would be no legal case for insisting on any other majority.

    An interesting, and exceptionally difficult, legal problem would arise if either:

    a) the government refused to hold a referendum when the Act required one; or

    b) held a referendum in which there was a result against the new treaty but the government tried to go ahead with it anyway.

    At the moment, such questions are (fortunately) academic only.