Background Requirements under the European Union Act 2011
15.The 2011 Act sets out three requirements for the approval, by the UK, of a decision under Article 48(6) TEU: a Ministerial statement as to whether the decision triggers a referendum under section 4 of the Act; an Act of Parliament approving the decision; and compliance with the referendum condition, the exemption condition or the significance condition. Each of those conditions is set out in section 3 of the Act. The “exemption condition” is met if the Act providing for the approval of the decision states that the decision does not fall within section 4 of the Act.
16.Section 4 sets out the cases in which a treaty or Article 48(6) decision attracts a referendum. Section 4(4)(b) sets out an exemption to the referendum requirement and provides that an Article 48(6) decision does not fall within section 4 merely because it involves the making of a provision that applies only to Member States other than the United Kingdom.
17.The Treaty amendment Decision amends Article 136 TFEU with regard to a “stability mechanism for Member States whose currency is the euro”. Article 136 itself is part of Chapter 4 of Title VIII TFEU which includes only provisions specific to Member States whose currency is the euro.
18.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 decision was adopted. Subsection (6) makes transitional provision in relation to a European Council decision adopted before section 5 came into force. In such a case, a statement must be laid within two months of the commencement date of that section of the 2011 Act. Section 5 came into force on 19 August 2011. The Foreign Secretary laid a statement before Parliament on 13 October 2011 to the effect that, in his opinion, the Treaty amendment Decision does not fall within section 4 of the 2011 Act. The statement relies on the exemption in section 4(4)(b), on the basis that the Treaty amendment Decision applies only to Member States other than the UK.