Commentary on Sections Restrictions relating to amendments of TEU or TFEU Section 4: Cases where treaty or Article 48(6) decision attracts a referendum
49.Section 4 makes provision for the criteria against which a treaty seeking to amend or replace TEU or TFEU, or an Article 48(6) decision seeking to amend an aspect of Part Three of TFEU, would be assessed in order to determine whether a referendum should be held. Section 4(1) lists the changes that the Government regards as representing a transfer of power or competence from the UK to the EU (see paragraph 19 for further explanation of the different types of competence), and a treaty which would fulfil one or more of the criteria would require a referendum.
50.Subsection (1)(a) provides that a treaty or Article 48(6) decision would require a referendum if it would extend the objectives of the European Union, which are listed in Article 3 TEU. Both an extension of an existing objective and the creation of an entirely new objective would be caught by this criterion. The objectives of the EU include the promotion of peace and well-being; the principle of free movement of persons within an area of freedom, security and justice; the establishment of the internal market and economic and monetary union; and upholding and promoting the values of the EU in the wider world. As Article 352 TFEU can be used as a legal base for legislative proposals to achieve the objectives of the EU where there is no more relevant Treaty article to use, an extension of the EU’s existing objectives could also be used to transfer further competence from the UK to the EU. This is why both an addition of a new objective, and the extension of an existing objective, would require a referendum to be held.
51.Subsection (1)(b) and (c) provides that a treaty or an Article 48(6) decision which would create either a new exclusive competence, or extend an existing exclusive competence for the EU, would require a referendum to be held before the UK could ratify that treaty or Article 48(6) decision.
52.Subsection (1)(d) and (e) provides that a treaty or Article 48(6) decision which would incorporate either a new competence shared between the EU and its Member States, or the extension of an existing competence shared between the EU and its Member States, would require a referendum to be held before the UK can ratify that treaty or Article 48(6) decision.
53.Subsection (1)(f) stipulates that a referendum would be required before the UK can approve the extension of any competence of the EU relating to: (i) the co-ordination of economic and employment policies; or (ii) the EU’s common foreign and security policy.
54.Subsection (1)(g) and (1)(h) provides that a referendum would be required before the UK could agree to the addition of any new, or the extension of existing supporting competence respectively under Article 6 TFEU, where the EU can support, co-ordinate or supplement Member States’ approaches. Further detail on supporting competence is provided in paragraph 25 of these Notes.
55.Subsection (1)(i) and (j) specifies that approval for proposals to increase the powers of the EU institutions and bodies to impose requirements, obligations or sanctions on the UK would require a referendum, as would proposals to remove any existing limitations on the institutions. It is these two criteria which could be subject to the ‘significance condition’ in section 3.
56.Subsection (1)(k) provides that any proposal to remove the UK’s veto over the use of any of the Treaty Articles listed in Schedule 1 (which includes any relevant Articles in Chapter 2 of Title V TEU (Specific Provisions on the Common Foreign and Security Policy)) would require a referendum. It should be emphasised that this means that a referendum is needed only before the UK can agree to any proposed treaty change or Article 48(6) decision which would remove the UK veto in any of these cases. Agreement to any legislative acts made under these Treaty articles would not require a referendum.
57.Subsection (1)(l) and (m) provides that any proposal to remove an ‘emergency brake’ provision in the Treaties would require a referendum before the UK could agree to the removal of such a brake. The emergency brake provision in Article 31(2) TEU, covered by subsection (1)(l), allows a Member State to stop the agreement of a decision by qualified majority voting under the common foreign and security policy by citing ‘vital and stated reasons of national policy’. The High Representative of the EU for Foreign Affairs and Security Policy would then attempt to mediate with the Member State who has used the brake provision, but if they cannot come to an acceptable solution for the Member State concerned, the Council can then decide by qualified majority to refer the matter to the European Council for decision by unanimity. If the Council does not vote to refer the matter to the European Council, then the Member State’s objection shall prevail. Subsection (1)(l) provides that any amendment to this mechanism would require a referendum before the UK can agree to any such amendment.
58.Subsections (1)(m) and (3) similarly provide that the other emergency brake provisions in TFEU, where a Member State can suspend the ordinary legislative procedure in relation to a specified legislative act for reasons set out in the Treaties, cannot be amended without a referendum being held first and a majority of voters agreeing to any such amendment. Article 48 TFEU concerns those social security measures that permit the free movement of workers within the EU. A Member State can suspend the ordinary legislative procedure and refer the proposal to the European Council if it felt that the proposal might affect ‘important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system’. In such an eventuality, within four months the European Council has to resolve the issue by unanimity and ask the Council to continue with the negotiation of the legislative act in question, or has to reject the act and ask the European Commission to publish a new proposal.
59.Article 82(3) TFEU concerns rules on the mutual recognition of judicial decisions and police cooperation on cross-border criminal matters and provides for a Member State to use the emergency brake mechanism if a proposed act ‘would affect fundamental aspects of [the Member State’s] criminal justice system’. Article 83(3) TFEU concerns proposals on serious cross-border crime, and similarly allows a Member State to refer a draft decision to the European Council where an act may ‘affect fundamental aspects of its criminal justice system’.
60.Subsection (2) stipulates that the removal from the existing Treaties of a limitation on the EU’s ability to act in a given area is, for the purposes of this Act, equivalent to an extension of the EU’s competence in that area – and would therefore require a referendum to be held and a majority of votes cast in that referendum to be in support of the removal of that limitation. An example here would be the Protocol on the Position of the UK and Ireland in the Area of Freedom, Security and Justice (referred to in section 9 and in these Notes as the ‘AFSJ Protocol’). As any attempt to repeal that Protocol could be argued to be a removal of a limitation on the EU’s ability to act in this area with respect to the UK, this subsection stipulates that such a move would be subject to a referendum.
61.Subsection (4) provides that certain Treaties or Article 48(6) decisions would not require a referendum merely because they fall within one of the following circumstances: where they codify EU practice under TEU or TFEU in relation to the previous exercise of an existing competence; or they create any provision in the Treaties which does not apply to the UK; or where a treaty has the sole purpose of providing for the accession of a new Member State to the EU.
62.Subsection (4)(a) provides that the codification of practice under TEU or TFEU in relation to the previous exercise of a competence not already covered explicitly by the Treaties would not, in itself, be subject to a referendum so long as the codification goes no further than to make explicit in the Treaty that part of the competence which has actually been exercised, and does not seek to codify the potential full extent of that competence. For example, action may be taken under Article 352 TFEU to achieve the objectives of the EU but where a measure is required for which there is no specific legal base. If a future treaty change then introduces a specific legal base for that action, and that new legal base does no more than codify the existing use, then no referendum would be required. There would be no point in having a referendum on such a codification, because the competence has already been transferred and the EU has already acted in that way. However, if the new legal base does more than codify the existing use, and the UK wants to support that new legal base, then a referendum would need to be held before the UK could ratify that treaty change.
63.Subsection (4)(b) provides that a referendum is not required where a treaty or an Article 48(6) decision makes provision that applies only to Member States other than the UK.  A treaty or an Article 48(6) decision does not apply to the UK merely because it may have consequences for individuals or organisations within the UK, such as UK businesses. Nor does it apply to the UK merely because the amendment imposes new responsibilities on EU institutions in which the UK participates and which the UK helps to fund.
64.The effect of subsection (4)(c) is that an Accession Treaty, agreed in accordance with Article 49 TEU, would not require a referendum if the only changes made by the Accession Treaty would be those necessary for and resulting from the accession, for example by amending the number of Members of the European Parliament to accommodate a delegation from the new Member State. However, the Act provides that Accession Treaties agreed under Article 49 TEU would require an assessment as to whether a referendum should be held in accordance with the provisions of Part 1 (see section 1(4)). This is because it is in theory possible that Article 49 might be used to do more than allow for the accession of a Member State, and therefore this eventuality would be covered by the provisions of this Act.