The election of the new coalition government in the UK in spring 2010 has brought a more defensive attitude towards the European Union. A good example of this political change after ten years of “positive pragmatism” under the New Labour government is the European Union Bill. After two readings at the House of Commons, the bill began the Committee stage in January – a word-by-word analysis of the bill’s measures. But for some Conservative MPs, it seems that the bill does not go far enough.
Background and flagship measures
Before the 2010 general elections, the Conservative party promised that if elected, it would change Britain’s relationship with the EU. The Treaty of Lisbon in particular was seen as a symbol of the undue and growing “intrusion of the European Union in almost every aspect of [British people’s] lives” according to the Conservative platform. It therefore generated calls for the organization of referendums in cases of future transfers of competences from the UK to the Community. If it was too late to organize a referendum on the Lisbon Treaty after the Conservatives’ victory in May 2010, David Cameron reaffirmed his promise to make the British people “in charge of their future in Europe”. Announced by the Queen in her post-elections speech, the new legislation regarding the EU was to increase the British Parliament’s involvement in Treaty changes and empower the British people to agree or disagree with significant institutional changes.
The EU Bill was first presented to the Parliament on November 11th 2010 for its first reading. The Bill contains several important measures. The first is known as “Referendum lock”. It aims to ensure that no future transfer of power or competences from the UK to the EU will happen without prior consultation of the people. This system will therefore bring the British closer to the Irish constitutional tradition of holding a referendum on any Treaty amendment. Second, the EU bill also creates safeguards against the Simplified Revision Procedures, the “ratchet clause” and the “passerelle”. These clauses allow the European Council to replace unanimity by qualified majority voting in major policy areas without going through the whole process of Treaty amendment and ratification. The European Council must decide by a unanimous decision and secure the agreement of all member states. The EU bill adds another condition for the ratchet clause and “passerelle” to be used, as it makes an Act of Parliament or a referendum a necessity to agree to these Treaty changes.
Another important measure provided for by the EU bill is the Sovereignty clause (or Clause 18) which reinforces and reaffirms the sovereignty of the British Parliament. As a result, this measure makes clear that EU law can only take effect in the UK through an act of Parliament. Finally, the EU bill sets the conditions for the election of the additional MEP that the UK obtained with the Lisbon Treaty.
What kind of relation between the UK and the EU?
In its EU bill factsheet, the Foreign and Commonwealth Office insists that the EU bill will not weaken the role played by the UK in the EU and will not put into question EU membership. It also tries to clarify the conditions for a referendum to be held: it will be required if a Treaty change implies “transfers of any more of the three kinds of competence – exclusive, shared or supporting competence – from the UK to the EU”. Moreover, any measure which aims at lifting a British veto in a significant area – i.e. put an end to the unanimity rule – would similarly require the people’s approval. However, the accession of a new country to the EU will not make a referendum necessary as long as the accession Treaty does not imply further losses of competences for the national governments.
The principle behind the EU bill was accepted by the House of Commons after the second reading in December. However, the House also asked for the bill to go under the scrutiny of a Committee of the Whole House, a procedure which is generally used for controversial bills. Indeed, the EU bill is far from creating unanimous enthusiasm at Westminster and voices of protest have been heard, even within David Cameron’s party. Surprisingly, criticisms did not come from the Lib-Dems, who although being traditionally pro-Europeans have agreed to support the bill as part of the coalition “deal”.
“Smoke and mirrors” for Eurosceptics
A major divide within the Conservatives has emerged regarding the adoption of the EU bill. A number of backbench Eurosceptic Tory MPs have raised their voice against the current text of the bill, arguing that it does not go far enough when it comes to protecting UK’s sovereignty. Some MPs have even warned the coalition of a vote against the whole bill if more radical amendments are not adopted. This attitude towards the new coalition is partly due to David Cameron’s decision to rule out a referendum on the Lisbon Treaty, which significantly irritated Eurosceptic MPs. The coalition is also held responsible for the several transfers of power that have already taken place since the coalition has won the elections, including provisions for the European External Action Service or EU regulatory control over the City of London.
Regarding the EU bill, Eurosceptic MPs point out the scope of discretionary power that future governments will enjoy, allowing them to bypass a referendum. Although Europe minister David Lidington has argued that there will be “no wriggle-room” for ministers, Eurosceptics fear that the Parliament will not have the final say regarding a major transfer of power to the EU, for instance regarding the potential adoption of the Euro. Douglas Carswell, a Eurosceptic Tory MP said that "Under this bill, it is for ministers to decide what constitutes a transfer of power. This is meant to create the optical illusion of being Eurosceptic. This is smoke and mirrors." As the bill does not include any entrenchment mechanism (for instance requiring a vote of 75% of MPs to repeal the referendum lock), a future government could indeed repeal it in order to avoid a referendum.
Moreover, clause 18 only confirms the existing position, i.e. that EU law only has effect in the UK through an act of parliament. Eurosceptic Bill Cash, chairing the European Scrutiny Committee, claimed that "The European Union claims sovereignty over our democratic Parliament and this mouse of a bill does nothing to preserve it.” He has tabled an amendment which would add “the sovereignty of the United Kingdom Parliament is hereby reaffirmed” to the bill, as to dismiss any ambiguity that could lead to a loss of power for the House.
The bill as a “lawyer’s paradise” ? (Labour)
The opposition has also criticized the bill, Shadow foreign secretary Yvette Cooper declaring that the bill was just about keeping Eurosceptics happy, while not addressing the right questions. The judicial review aspect is also questioned, as Ed Miliband argues: the judiciary “should not be making decisions meant for parliament”. Indeed, the bill allows for ministers to decide if a treaty is "significant" enough to trigger a referendum, although that decision would be subject to judicial review. In fact, this argument relating to judges taking over the Parliament’s sovereign rights has also been put forward by Tories MPs when criticizing the bill.
Although it can be seen as a "Eurosceptic" piece of legislation, designed to guarantee UK’s sovereignty over EU’s growing powers, the EU bill does not seem to go far enough for some Eurosceptic – most of them being Tories – MPs. This situation reveals the underlying British anxiousness and mistrust vis-à-vis the EU and shows to what extent Euroscepticism remains an important variable in British politics. Forgetting this element could lead to the coalition’s first major legislative defeat.
To go further
On Nouvelle Europe website
- European Union Bill HC Bill 106 of 2010-11 RESEARCH PAPER 10/79 2 December 2010 authors: Oonagh Gay and Vaughne Miller, House of Commons library
On the Internet
- 'Eurosceptics attack plans for referendum on EU treaties', 8 December 2010, BBC News
- 'William Hague says EU bill is 'massive advance', 9 January 2011, BBC News
- Carl Gardner, 'The EU bill explained', 11 January 2011, The Guardian
- ''No wriggle-room' in EU bill, says Tory minister', 11 January 2011, The Guardian
- 'Britain and Europe: All in this together', 7 December 2010, The Guardian
Source photo : La Faucheuse Versaillaise, by David Reverchon, on flickr