Background Part 1: Restrictions on Treaties and Decisions Relating to EU
20.The European Union (Amendment) Act 2008 (‘2008 Act’), which provides Parliamentary approval for the ratification of the Treaty of Lisbon, requires that any amendment to the Treaties of the European Union (TEU, TFEU, and the Treaty Establishing the European Atomic Energy Community) should be approved by an Act of Parliament before the UK can ‘ratify’ (that is, finally approve) the amendment concerned. Part 1 of this Act provides that an Act of Parliament would continue to be required in the case of any treaty which sought to amend or replace TEU or TFEU, but would in addition require the holding of a referendum if a proposed amendment of TEU or TFEU (including the replacement of TEU or TFEU) sought to transfer power or competence from the UK to the EU.
21.A referendum would only be required if the Government of the day wanted to support the treaty change in question. If the Government of the day did not want to support the change in question, it would block the proposal at the negotiations stage. As all of the types of treaty change that are to be subject to the referendum provisions would have to be agreed by unanimity at the EU level, the proposal could not form part of a new treaty or a treaty change - and there would then be no need for a referendum - if the Government did not support the proposal.
22.Part 1 deals with the situation where a transfer of competence or power from the UK to the EU is proposed in the future through the use of one of the following mechanisms providing for a treaty change:
23.Article 1 of TFEU provides that TFEU ‘determines the areas of, delimitation of, and arrangements for exercising [the EU’s] competences’ in respect of TEU and TFEU. ‘Competence’ is conferred on the European Union by the Member States of the EU, and in essence specifies how and to what extent the EU can act in a given area. The EU is bound to act within the confines of the Treaties, as only the Treaties provide the EU with the ‘competence’ to act in a given area.
24.The UK has previously agreed to confer competence on the EU in a number of areas specified in TEU and TFEU by approving the Treaty of Lisbon, which amended the EU Treaties. The UK agreed to confer on the EEC the competence to act in ways specified in the Treaties at that time, when the UK joined in 1973. The statutory provision which permitted the UK to confer competence on the EEC at that time is the European Communities Act 1972.
25.Articles 2 to 6 of TFEU set out in more detail the categories and areas of EU competence. The EU’s competence can be expressed in the following five ways:
26.Unlike ‘competence’, which is described in detail in the Treaties as summarised above, the term ‘power’ is not defined in the Treaties. For the purposes of Part 1 of the Act, a transfer of power could take place in four ways:
27.As the majority of treaties and Article 48(6) decisions will require the exercise of judgement as to whether a transfer of power or competence is involved, in those cases the Act requires that a Minister must make a statement giving an opinion as to whether or not the Treaty or Article 48(6) decision meets the criteria for a referendum, and must give reasons. As with all Ministerial decisions, it would be possible for a member of the public to challenge the decisions of the Minister in such a statement.
28.Section 6 of the Act provides that a number of other decisions, which are considered to transfer power from the UK to the EU in every case, require approval by Act of Parliament and a referendum (but no Ministerial statement is required). When one of these decisions is taken, a referendum will always be required. These decisions can be classified into three categories:
29.There are other provisions in the Treaties which also constitute ‘passerelles’ or ‘ratchet clauses’, but do not enable the transfer of power or competence from the UK to the EU. There is no one agreed definition of what constitutes a ‘ratchet clause’ in the Treaties. Some of these provisions provide for a specified modification of the Treaties without using the Treaties’ Ordinary Revision Procedure, such as Article 81(3) TFEU, allowing for a move from unanimity to qualified majority voting in respect of specific areas of family law with cross-border implications. Some other provisions are in effect one-way options, which EU Member States can together decide to exercise and which allow existing EU powers to expand within the scope of the competence already defined in the Treaties, such as Article 262 TFEU, allowing for an expansion of the jurisdiction of the Court of Justice of the EU (ECJ) in relation to disputes concerning European intellectual property rights.
30.As it is difficult to come up with one definition for such Treaty provisions, Part 1 of the Act specifies those provisions that the Government considers should require an Act of Parliament to be passed before the Government can agree to their use in the Council or European Council, and those that the Government considers should require other forms of Parliamentary approval.