Background Requirements under the European Union Act 2011
13.Section 2 of the 2011 Act sets out three requirements for the approval, by the UK, of a treaty amending the TEU or the TFEU: a Ministerial statement as to whether the treaty triggers a referendum under section 4 of the Act; an Act of Parliament approving the treaty; and compliance with either the referendum condition or exemption condition. The exemption condition is that the Act approving the treaty states that the treaty does not fall within section 4 of the 2011 Act. Section 4 of the 2011 Act sets out the cases in which a treaty attracts a referendum.
14.In relation to the Accession Treaty, section 4(4)(c) of the 2011 Act sets out an exemption to the referendum requirement and provides that a treaty does not fall within section 4 merely because it involves the accession of a new Member State.
15.None of the matters covered in the Irish Protocol would constitute a transfer of competence or power from the UK to the EU as set out in section 4(1)(a)-(m) of the Act. The Irish Protocol therefore does not attract a referendum as it does not fall within section 4 of the 2011 Act.
16.Under section 5 of the 2011 Act, the Minister must lay a statement before Parliament setting out his or her opinion as to whether a referendum is required under section 4 of the Act within two months of the date on which the treaty is agreed. The Foreign Secretary laid a statement before Parliament on 2 February 2012 to the effect that, in his opinion, the Accession Treaty does not fall within section 4 of the 2011 Act. A separate statement was laid before Parliament on 5 July 2012 to the effect that the Irish Protocol does not fall within section 4 of the 2011 Act.