Commentary on Sections Restrictions relating to amendments of TEU or TFEU Section 2: Treaties amending or replacing TEU or TFEU
40.This section requires certain conditions to be met before any future treaty that would amend or replace TEU or TFEU can be approved by the UK. The conditions are: (a) that a Minister has laid a statement before Parliament setting out whether a referendum is required or not, in accordance with section 5; (b) that the proposed treaty has been approved by an Act of Parliament; and (c) that either the ‘referendum condition’ or the ‘exemption condition’ has been met in each case. These conditions are only relevant where the Government has agreed to the proposed treaty at an Inter-Governmental Conference, at which point the conditions would need to be satisfied before the UK could approve, or ‘ratify’, the future treaty.
41.The referendum condition is set out in subsection (2). The Act of Parliament that is needed to approve the treaty must include provision for a referendum to be held to determine whether the public support the approval of that treaty. The Act of Parliament would need to specify the treaty to be agreed, and the detailed provisions required to allow a referendum to take place, including the question for the ballot paper and the date of the referendum. The referendum would then be held in accordance with the provisions set out in that Act, and only if a majority of the people who voted in the referendum were in favour of the proposal would the UK be able to ratify the treaty. The provisions of the Act approving the treaty would not come into force until the result of the referendum was known and unless a majority of voters had voted in favour of the change.
42.The exemption condition is set out in subsection (3) and would apply if the proposed treaty did not do anything which is set out in section 4 (see below) and the Act providing for Parliamentary approval of the decision specified that this was the case. In other words, if there would be no transfer of competence or power from the UK to the EU (as set out in subsections (1) to (3) of section 4), then the treaty would be exempt from the requirement for a referendum.
43.Subsection (2)(a) provides that where the Government considers that any of the provisions of the proposed treaty would affect Gibraltar, then any referendum would need to be held throughout the UK and Gibraltar. Gibraltar is bound by a number of provisions in the Treaties, and while it is not possible to predict whether Gibraltar would be affected by any future treaties, in the event that Gibraltar would be affected, the people of Gibraltar would be entitled to vote in the relevant referendum.