CAPÍTULO II UN VIEJO PAYASO
CONFESIÓN DE UN CORAZÓN ARDIENTE EN VERSO
The final section of the EUA that deals with referenda, Section 6, groups together other decisions that now require approval by referendum in the UK, but which would not always be covered by the provisions in s2, s3 or s4 because they do not necessarily require treaty amendment. There are two categories of decisions: specific policy decisions and decisions that would change the voting process in relation to specified treaty articles and remove the UK’s veto in the Council in that policy area. The specific areas of policy considered to warrant an extended legitimisation process, including approval by referendum are a common EU defence,69 a European Public Prosecutors office,70 the Euro,71 and the Schengen Protocol.72 The explanatory notes state that these four subject based referendum triggers, which are of varying degrees of public salience, require legitimisation using a referendum because if implemented they would be “one-way, irreversible decisions which would transfer power or competence from the UK to the EU”.73 These are policy areas, though, for which supranational decision-making processes have already been established that are not dependent on legitimisation via member state institutions; unlike the treaty amendment decisions of s2 and s3 that must be confirmed in line with the constitutional arrangements of the Member States before they can be ratified.74 The exception to this in s6 is the adoption of a decision by the European Council under Art 42(2) TEU in relation to common EU defence, which has a two stage process that requires specific Member State approval ‘in line with their constitutional requirements’.75 This is one of the five ‘organic laws’ in the Treaties, which already require the type of two stage ratification process established in s6 EUA, and that are dealt with inconsistently by the EUA.76 Policy decisions can be adopted in the Council in relation to the other four ‘organic laws’ without prior approval in a referendum.77 Given that the ‘organic laws’ have already been elevated by Member States, including the UK, to a position of requiring an intergovernmental approval process akin to that followed for
69
s6 (2) EUA.
70
s6 (3) EUA and s6(5)(c) EUA.
71 s6 (5)(e) EUA. 72
s6 (5)(k) EUA.
73
Explanatory notes to the EUA 2011 para 71.
74
Art 48(4) TEU and Art 48(6) TEU.
75 Art 42(2) TEU. 76
The five organic laws are Art 42(2) on common security and defence policy; Art. 25 TFEU on additional rights for Union citizens; Art. 223(1) TFEU on a uniform electoral procedure for the EP; Art. 262 TFEU on ECJ jurisdiction over European IPRs; Art. 311 TFEU, third para on the initial decision on Union own resources.
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amendment of fundamental EU law, which gives Member States some control over the approval of these laws, it is somewhat surprising in terms of consistency that the provisions of s6 EUA do not require referendum approval for the adoption of decisions in relation to all the ‘organic laws’. Perhaps the UK government simply decided that a common EU defence was more salient and more significant than the other organic laws.78
The other parts of s6 EUA relate to various changes in the voting procedure in the Council; some of which are specified in s6 itself and a number of others listed in Schedule 1 of the act. Ministerial approval of these changes in voting procedure, which would remove the UK government veto in relation to a wide range of policy areas, such as EU finance, social policy and the environment, also now require approval in a referendum first. This removal of a veto would not necessarily mean that there would be a transfer of competence to the EU or any change to EU policy, but they would mean that there is an increased possibility that a legislative proposal may be passed at EU level that the UK government does not agree with, but will have to comply with. It would be possible to have a referendum on the voting procedure for EU level decisions in relation to one of the issues in s6 or Schedule 1 EUA and then at a later date another referendum could be required by s2 or s3 EUA for approval of treaty amendment covering the same subject area. The provisions in s6 EUA also leave the incongruous situation that a UK minister can only adopt a change in voting procedure after approval in a UK referendum, but the minister can adopt a decision in Council about the substance of that policy area without needing referendum approval. There are no exceptions in either category of decisions in s6, and there is no significance condition.
Having described the mechanics of the EUA in terms of holding referenda, the rest of the chapter will proceed with an assessment of the democratic potential of the legislative design of referenda in the EUA. First, there is an assessment of the compatibility of the EUA provisions for referenda with EU law, and with UK law as far as it relates to the potential for indirect legitimisation of the EU. Secondly, there is comment on the political motivation behind the implementation of the EUA, how this is reflected in the criteria established and the potential referenda subject matter, and what this might mean in relation to its democratic potential. The chapter then concludes with specific comment on the potential influence of the EUA on EU democratic legitimacy.
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s6 EUA requires a referendum for a change to the legislative process that three of the organic laws specify, Arts 25, 223(1) and 311 TFEU, but not for adoption by a UK minister in Council of a policy decision to which they would apply. For the other organic law, Art 262 TFEU, a referendum is not required for adoption of a policy decision or for a voting procedure change in this policy area.