CONFESIÓN DE UN CORAZÓN ARDIENTE ANÉCDOTAS

The EUA referenda provisions relating to treaty amendment do not give rise to any issues with EU law compatibility. s2 and s3 EUA require approval of EU treaty amendment in a referendum in the UK, when one of the provisions in s4 EUA is met, before that treaty amendment can be ratified by the UK government. The legality of s2 and s3 is not brought in to question because the use of referendum is accommodated in EU law: the ordinary and special revision procedures, as set out in Art 48 TEU, require ratification and approval, respectively, “in accordance with their respective constitutional requirements.”79 The second stage of the ratification process in the ORP has included Member State level referenda in a number of countries, and there is no legal issue with adding the UK to those that require referendum approval prior to treaty ratification. This follows the standard EU democratic process of treaty legitimisation via Member State institutions.

However, the provisions in s6 EUA for the use of referenda to approve EU decisions that would not normally be referred to the Member State level before ratification in the EU institutions do give rise to issues in relation to EU law. The legality of the provisions in s6 EUA can be questioned because EU policy and legislative decisions do not ordinarily provide for this type of two stage approval process. The focus for the discussion here is whether the provisions in s6 EUA are in accordance with EU law and of the practical implications for this decision to require Member State level referendum approval for EU level decision-making. The wider impact that this might have on the overall EU democratic paradigm is discussed in more detail, together with the ECI, in the next chapter.

s6 EUA referenda are not triggered by treaty amendment. They are divided between those that are triggered by the policy area a decision is being taken in, such as to approve adopting the Euro,80 or signing up to the Schengen Agreement;81 and secondly those referenda that would be triggered if the UK government wanted to approve the adoption of QMV or the OLP instead of a special legislative procedure in relation to the wide range of treaty articles listed in s6 EUA and Schedule 1 EUA. The EUA provisions require the UK minister representing the UK government in the Council of ministers to seek approval in a referendum in the UK before they can vote in favour of a decision covered by s6 EUA.82 The decision-making process in the EU Council of ministers must be followed by all Member States, but then, for the UK only, the draft decision must be approved by Act of

79

ORP in Art 48(4) TEU and SRP in Art 48(6) TEU.

80 _{s6(5)(e) EUA.} 81 _{s6(5)(k) EUA.} 82

Parliament, and by the UK citizens through a referendum vote.83 This addition of direct Member State level institutional involvement in EU level decision-making is not accommodated by the treaties for any of the s6 decisions, except for a decision covered by s6(2) that relates to a Common EU defence and decision taken under Art 42(2) TEU. Craig put it this way: “There is a related objection to the section 6 strategy, which is that it makes the particular national parliament and the national electorate a formal part of the EU decision-making process where there is no warrant in the Treaty.”84 In other words, the insertion of UK referendum approval by s6 in to EU decision making is of questionable legality because it changes the institutional mechanism agreed in the treaties for making EU law.

The s6 EUA provisions that introduce Member State level involvement in the legislative process are also of doubtful legality because they imply a unilateral, unapproved rewrite of the relevant treaty articles. The enactment of the EUA has, in effect, just for the UK, introduced a second Member State level stage to the decision-making process for the s6 decisions. In effect this has moved them in to the category of organic laws, which are an exception to standard EU legislative practice because they require that decisions are approved in accordance with the constitutional requirements of each Member State, as is the case for treaty ratification.85 Amendment to the EU treaties is confirmed after unanimous ratification or approval in all Member States, but this implied change to the treaties through the s6 EUA provisions only applies to the UK and has not been approved by other Member States, and hence raise questions of its legality.

A further reason to question the legality of the provisions in s6 EUA is that UK ministers are no longer able to fulfil their obligation under Art 16(2) TEU.86 The Member States have agreed in the treaties that the Member State representatives in the Council, once negotiations have been concluded and a sufficient level of consensus reached, will be able to approve the relevant decision: ‘The Council shall consist of a representative of each Member State at ministerial level, who may commit the Government of the Member State in question and cast its vote’.87 However, the provisions of s6 EUA mean that the UK minister is not lawfully able to cast a vote in the Council for the UK Government without first returning to the UK to seek approval for a draft decision from the

83

s6(1) EUA “(1)A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless— (a)the draft decision is approved by Act of Parliament, and (b)the referendum condition is met”.

84 _{P Craig, ‘The European Union Act 2011: Locks, Limits and Legality’ [2011] CMLRev 1915, 1930.} 85

E.g Art 25 TFEU: “These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.”

86 _{P Craig, ‘The European Union Act 2011: Locks, Limits and Legality’ [2011] CMLRev 1915, 1931.} 87

UK Parliament and from UK citizens in a referendum.88 This means that in meeting the legal requirements set out in s6 EUA the minister will be unable to discharge their obligation according to EU law as set out in Art 16(2) TEU. The final aspect of the treaties that it has been suggested s6 EUA may conflict with is the principle of sincere cooperation in Art 4(3) TEU.89 It is unclear though whether the provisions of the EUA requiring further approval in the UK of EU level decisions are so obstructive to the tasks and objectives of the EU as to fall foul of this principle. It is also less than certain that challenging the UK in the Court of Justice on this basis would be politically wise, given that the EUA provides for more EU democratic legitimisation.90

Even if these questions of the legality of s6 EUA were able to be overcome, there are still a number of practical, political problems that could arise because of the introduction of the referenda provisions in s6 EUA.91 Negotiations in the Council may be complicated by the UK minister and other Member State representatives wishing to avoid triggering a referendum. Those involved in the negotiations will be aware of the issues that would trigger a referendum in the UK and this could be factored into the negotiations on any policy decisions in the Council and possibly cause delays or difficulties in reaching agreement. There is little clear evidence to date as to what impact the EUA provisions may have on EU level negotiations and decision-making either in terms of the UK’s EU policy or the positioning of other Member States or the final form of the decisions taken. The closest the EUA has come to influencing negotiations at the EU level is probably in relation to the Treaty on Stability, Coordination and Governance (Fiscal Compact) where Prime Minister David Cameron’s decided to exercise his veto. Although a referendum in the UK may not have been triggered by the Fiscal Compact, the complexity and uncertainty of whether the EUA provisions would have triggered a referendum, combined with the potential for significant political problems for the UK government, may have influenced the decisions taken by the UK and the final shape of the Treaty.92

Previously, a UK minister went to the Council with a mandate, negotiating position and decision making power, legitimised at state level, prior to the supranational level engagement. The UK minister was given the authority to represent the Member State and to take decisions on behalf of

88

EUA s6 (1).

89

For comment on sincere cooperation see M Gordon and M Dougan, ‘The United Kingdom’s European Union Act 2011: “Who won the bloody war anyway?”’ [2012] EL Rev 3, 21.

90

Ibid pg 22.

91

See P Craig, ‘The European Union Act 2011: Locks, Limits and Legality’ [2011] CMLRev 1915, 1931- 1933 for comments on the practical problems arising from s6 EUA.

92 _{For discussion of the likelihood of the Fiscal Compact triggering a referendum as a result of EUA provisions}

see M Gordon, ‘The United Kingdom and the Fiscal Compact: Past and Future’ [2014] Eu Const 28. For comment on the possible impact of the EUA on UK negotiation at the EU level see D hodson and I Maher, ‘British Brinkmanship and Gaelic Games: EU Treaty Ratification in the UK and Ireland from a Two Level Game Perspective’ [2013] BJPIR.

their government. Now, though, the minister will need to negotiate in the Council until there is enough clarity about whether the other Member States are going to approve a decision, then if he wants to support the decision that seems likely at the conclusion of the negotiations he will need to stop the EU legislative process and return to the UK to ask for the expected decision to be approved by parliament and referendum. The UK government would presumably try to hold the referendum at the end, or as close to the end as possible, of negotiations in the Council, but before the final decision is made. While referendum approval is being sought in the UK, the Council decision will be on hold and other Member States will likely be waiting for the UK referendum result before approving the decision. Implementing the decision at state level in other Member States would run the risk of having to repeal a recently enacted law in the event of a UK referendum rejection. During the delay in decision-making whilst the UK referendum is held, which may be anything upwards of 6 months, the position of the other Member States in relation to the decision at issue may also change, for example because of a change in Government in the meantime, which means that money may be spent on a referendum in the UK about a decision that has already altered, may never happen, or which the UK government no longer wants to support anyway; which would all make the referendum approval meaningless.

One possible outcome of rejecting the agreement that the UK government intends to approve is that a UK government representative will, if they wish to reach an agreement in this area, have to return to the Council to renegotiate with the other Member States. A referendum would then need to be held every time that it seemed that negotiations have reached a draft agreement that the UK government thinks the people will accept. These issues will make the Council decision-making process extremely unwieldy for the UK and the other Member States when the s6 EUA referenda provisions are triggered. If other Member States were to take the same position as the UK then all these issues would be exacerbated and undermine the purpose of membership of a supranational organisation with decision-making competence. Furthermore, implementing a functioning process consistent for all Member States for approving these decisions, which may include direct democracy at the Member State level, would require complex treaty change. Much of this comment is conjecture in lieu of any firm evidence of the impact of the EUA’s legal provisions, but it seems likely at this point that there will be some impact on the effectiveness of Council decision-making.

There is also the potential for the EUA provisions to undermine the use of referendum in the UK. If, as was speculated in the previous paragraphs, there were to be referenda on decisions that change before they can be approved or multiple referenda on the same subject as part of the negotiations in Council, then there will be high levels of cost for the state to hold these referendums and for

people to engage with the issues and participate.93 Even more significant in democratic terms is that the democratic value of the opportunity for citizen participation through the introduction of referenda in UK legislation may be severely devalued as a result, and would do little to allay concerns about the competence or willingness of citizens to engage effectively. It is appropriate for the people to legitimise decisions, but it is up to the Government to negotiate. It is one thing for the UK constitution ‘to know something of the people’ as a result of referendum when approving state decisions,94 but quite another for the EU Council of ministers to know something of the UK people during the negotiations of what could be relatively minor EU level decisions, such as whether to change the voting in the Council in relation to energy measures that are primarily of a fiscal nature.95 The s6 EUA provisions may be a challenge to EU law as it is currently established in the treaties, but it seems unlikely that an issue of significant substance will arise to lead to a legal challenge, or that there is likely to be much appetite for such a challenge. As Dougan and Gordon said a legal challenge based on UK law that provides for enhanced democratic provisions would seem “politically maladroit ... the perfect gift from naive Europhilia to cynical Euroscepticism”.96 It seems more likely that any legal issues will be left in abeyance until such time as treaty amendment is once more on the agenda, which does not currently seem imminent, particularly given the understandable preoccupation with the ongoing economic crisis. The implications of the challenge to the EU paradigm by the implementation of the EUA are discussed in detail in chapter four. The next section of this chapter moves the discussion away from the direct implications of the EUA on EU level democracy to its implications for Member State level democratic legitimisation of EU policy in the UK, and the indirect legitimisation this provides the EU.