Commentary on Sections Restrictions relating to other decisions under TEU or TFEU Section 6: decisions requiring approval by Act and by referendum
70.This section provides that a number of specified decisions already provided for in TEU or TFEU would require both an Act of Parliament to be passed, and for a majority of people voting in a referendum of the British people (and where applicable, the people of Gibraltar) to support such a decision before the UK could agree to the decision. These decisions would not involve a new treaty or Article 48(6) decision, and so would not be caught by the provisions of sections 2, 3 or 4.
71.There are two categories of decisions included in this list. The first are decisions that would have the same effect as one or more of the changes which would require a referendum under sections 2, 3 or 4. Subsections (5)(a), (b), (f), (g), (h), (i) and (j) fall into this category. If a Treaty Article is sufficiently important to the UK that any treaty change which removed the UK’s ability to veto a future use of that Article must be subject to a referendum, it is logical that any other method of removing the UK’s ability to veto uses of that Treaty Article must also be subject to a referendum. The second category represents one-way, irreversible decisions which would transfer power or competence from the UK to the EU. These are covered in subsection (2) and in subsections (5)(c), (d), (e) and (k).
72.In the case of these decisions, no judgement is required by a Minister as to whether a transfer of competence or power would occur in each case; the Act provides that any decision to be taken in accordance with the Treaty provisions listed in this section would require an Act of Parliament and a referendum. No exemptions apply in the case of the decisions to which this section applies. In each case, the Act of Parliament would need to set out the decision to be agreed and the detailed provisions in order to allow a referendum to take place, such as the proposed question and the date of the referendum.
73.Subsection (5) lists those Treaty provisions to which section 6 would apply, with the exception of Article 42(2) TEU, which is provided for separately by subsection (2). This is because Article 42(2) TEU, which would permit a move to a common EU defence, requires a two-step process, unlike the other decisions in this section. In this case, the European Council may agree to move to a common EU defence, ‘subject to the approval of the Member States in accordance with their constitutional requirements’. This makes the decision-making process for Article 42(2) TEU similar to that of an Article 48(6) decision, in that the Act of Parliament and referendum required would take place after the decision has been taken in the European Council, but before the UK can approve the adoption of the decision, which is required before this decision enters into force. In the event that the Act of Parliament was not passed, or the majority of those voting in a referendum voted against approval of the decision, the UK would not adopt the decision to move to a common EU defence, and the decision would not therefore be able to enter into force.
74.In contrast, the other Treaty provisions set out in paragraphs (a) to (k) of subsection (5) would require both an Act of Parliament to be passed, and for a referendum to be held in which a majority of the votes cast supported the draft decision, before the UK could agree to such a decision in the Council or European Council.
75.Subsection (3) makes specific provision regarding any future decision to participate in a European Public Prosecutor’s Office, where one has already been established by the other Member States of the EU. The effect of subsections (5)(c) and (5)(d) is to require a referendum and an Act of Parliament before the UK could participate from the outset in proposals to create and extend the powers of a European Public Prosecutor, under Article 86(1) and Article 86(4) TFEU. Under Article 4 of the AFSJ Protocol, however, the UK can also seek to opt into Justice and Home Affairs measures after they have been adopted by other Member States. Subsection (3) provides that such a notification under Article 4 of the AFSJ Protocol may not be given, in order to participate in a European Public Prosecutor’s Office or to agree an extension of the powers of that Office if the UK is already a participant, without prior Parliamentary approval by Act and the consent of the British people in a referendum.
76.Subsection (5)(a) requires that an Act of Parliament should be passed and a referendum should be held before the UK could agree to any move from unanimity to qualified majority voting in respect of any decisions taken by unanimity under the EU’s common foreign and security policy.
77.Subsection (5)(b) requires that any proposed use of Article 48(7) TEU that sought to move a specified area from unanimity to qualified majority voting, or sought to move a specified area from the special legislative procedure to the ordinary legislative procedure, would be subject to the referendum condition if that area is set out in Schedule 1. There are two elements to this which require further explanation.
78.A move from the special legislative procedure to the ordinary legislative procedure in effect alters the role of the European Parliament in determining the final legislative act to be adopted: in general, the special legislative procedure requires the European Parliament to be consulted; whereas the ordinary legislative procedure (previously referred to as ‘co-decision’) requires the agreement of the European Parliament as well as the Council before a legislative act can be adopted.
79.With the exception of a handful of specific areas (none of which are included in the provisions in Schedule 1), such a move from the special legislative procedure to the ordinary legislative procedure would also entail a move from unanimity to majority voting in the Council – and so either a proposal to give up a veto on its own, or as part of a change in legislative procedure, would require both an Act of Parliament to be passed and a referendum to be held if the area concerned fell within Schedule 1. In those eight areas in the EU Treaties where such a move would not involve the giving up of a veto, a proposal to use Article 48(7) TEU to effect a change in legislative procedure would require Parliamentary approval in accordance with section 10.
80.Only those areas set out in Schedule 1 would trigger a referendum were there to be a proposal to move from unanimity to majority voting. There are other areas where unanimity presently applies; in the event that the Government had agreed in the European Council that one or more of those other areas could move from unanimity to majority voting, an Act of Parliament would be required before the UK could approve the decision to do this and this is provided for by section 7(4)(b) of this Act.
81.Subsection (5)(c) provides for an Act of Parliament to be passed and a referendum to be held on any proposal for the UK to participate in a European Public Prosecutor’s Office, whether at the outset or, as provided by subsection (3), after such an Office has been established. Subsection (5)(d) provides for an Act of Parliament and a referendum on any proposal to extend the powers of the Office of the European Public Prosecutor if the UK is, at the time of the proposal to extend those powers, a participant in the European Public Prosecutor’s Office.
82.Subsection (5)(f) and (g) requires an Act of Parliament and a referendum to be held in the event that decisions are proposed under Articles 153(2) TFEU or 192(2) TFEU respectively to move from the special to the ordinary legislative procedure. This change would mean that decisions taken under these Articles would no longer be subject to unanimity in the Council, and would instead being subject to qualified majority voting as explained above. Subsection (5)(h) similarly provides for an Act of Parliament to be passed and a referendum to be held in the event of a proposal to move Article 312(2) TFEU from unanimity to qualified majority voting.
83.Subsection (5)(i) and (j) would apply if the UK is a participant in an area of enhanced co-operation, a mechanism whereby a smaller number of (at least one third of) Member States can decide together to act in a way set out in the Treaties, without all Member States being bound by those decisions.
84.Subsection (5)(i) provides that, in the event that the UK participates in an area of enhanced co-operation which touches on one or more of the Treaty provisions listed in Schedule 1; and there is a proposal to move from unanimity to qualified majority voting for decisions taken in that area of enhanced co-operation; then an Act of Parliament would need to be passed, and a referendum would need to be held, and a majority of votes cast would need to be in support of the proposal before the UK can agree to that proposal. Such a move could not be proposed in any area of enhanced co-operation with military or defence implications. This would only apply to areas of enhanced co-operation set up to act in areas set out in Schedule 1, and in which the UK is a present participant. As with subsection (5)(b) above, any areas not covered by Schedule 1 would nonetheless require an Act of Parliament as set out in section 7(4)(e).
85.Subsection (5)(j) provides for an Act of Parliament to be passed and a referendum to be held in accordance with all of the conditions set out in the paragraph above, except that the trigger in this case would not be a move from unanimity to qualified majority voting but a move from the special legislative procedure to the ordinary legislative procedure – which usually entails a move from unanimity to qualified majority voting. This is in line with the provisions of subsection (5)(b) above. Such a move would not require a referendum, however, if a referendum had already been held to approve a decision to move from unanimity to qualified majority voting in accordance with subsection (5)(i) in the same area of enhanced co-operation. To do so would in effect mean holding a referendum on whether to change the role of the European Parliament or not, and would not be a transfer of power or competence.