Martin Howe QC is a former Conservative councillor and parliamentary candidate who has written a number of publications on constitutional and European matters. As today's Sunday Telegraph speculates that eurosceptic Tory MPs may seek to defeat the European Union Bill later this month if it is not amended to their liking, he explains here why the Bill is fundamentally a good thing.
Paul Goodman's blog on the second reading of William Hague's European Union Bill ("Sceptical at least, hostile in part") reveals some of the suspicion which exists on the Conservative backbenches about this Bill. But from a Eurosceptic perspective, this is fundamentally a good Bill – even though there are certainly respects in which it could be improved or could go further.
The Bill is designed to control how the UK decides to grant its consent to future treaty changes or other steps under the EU Treaties, which would result in a transfer of power from the UK. There are three tiers of possible changes: those that can only be approved after a referendum, those which need to be approved by an Act of Parliament, and those which require approval by an affirmative resolution of both Houses.
The Bill addresses a glaring defect in our constitution which has existed since the UK joined the EEC in 1973. The European Communities Act 1972 gave free rein to the government of the day to commit the UK to many kinds of irreversible decisions under the Treaty of Rome without any formal requirement for approval by Parliament, let alone by the people. This Bill for the first time imposes a comprehensive legal structure on the taking of at least of those decisions which result in the EU acquiring new powers over the UK. This is very much to be welcomed even if one can argue about whether some types of measure are allocated to the right 'tier'. A cynic would say that this is the kind of Bill which only a new government fresh to office would ever introduce.
One very important part of the Bill is clause 18, which makes it explicitly clear that laws emanating from the EU have effect within the UK only for so long as that remains the will of Parliament. I have been arguing for many years that we need this kind of measure, in order to protect against the "creep" of judicial opinion which might in future undermine Parliament's ultimate right to repeal or disapply the 1972 Act. If Parliament ever did choose to deploy this ultimate weapon, it could be in circumstances of great political stress where the last thing that would be needed would be legal challenges or any doubt about the powers of Parliament. For those interested in the legal side of this subject, my pamphlet on "Safeguarding Sovereignty: A Bill for UK Constitutional Rights in the EU" (published by Politeia) provides chapter and verse on the conflict of legal doctrines between the European Court and its attempts to assert "primacy" of EU law and the contrary position adopted by the national courts of a number of member states.
While the drafting of this clause could be improved – in particular, by turning it into an amendment to the 1972 Act itself – I believe that this clause is sound in principle, long overdue, and should be strongly supported.
But the sovereignty of Parliament, which this part of the Bill seeks to safeguard, causes an inherent problem with another part of the Bill, the so-called ‘referendum lock' against future treaty changes or decisions which would transfer powers from the UK. Unless we change over to a US-style written constitution and give the Supreme Court the power to strike down acts of the legislature, the present Parliament simply cannot pass an Act which binds a successor Parliament. It follows that however it is drafted, the present Bill as a matter of law cannot stop a future Parliament from repealing or amending it in order to by-pass the referendum lock.
This means that the strength of the referendum lock must necessarily depend not on law, but upon it becoming accepted as a matter of politics as a binding constitutional convention. Once it is on the statute book, it would be hard for any party to campaign at a future election on a platform of denying the British people their right to have a say by tampering with the referendum lock.
This is why I positively welcome the fact that the Bill contains machinery under which a referendum need not be called if certain kinds of transfer of power are judged not to be "significant". This exception to the referendum requirement has, quite understandably, given rise to deep suspicion about its possible abuse. But if the Bill were to contain no such exception, it would be wide open to a future government simply to ask Parliament to legislate to by-pass the referendum lock by claiming that its particular EU treaty was of insufficient significance to justify a referendum. Such a legislative by-pass would not be subject to any kind of judicial or other external control.
But because this Bill makes explicit and controlled provision for "insignificant" measures, there would be a strong political onus on such a future government to seek to satisfy the requirements of the Bill if it wanted to avoid a referendum. This would require arriving at a ministerial decision within the framework of the Bill which would have to give reasons why the measure concerned was not "significant." That ministerial decision would be subject to judicial review. Although the courts would be likely to give a minister a wide ambit on exercising this kind of judgement, it would not be unlimited.
It would be possible to amend the Parliament Acts so that the assent of the House of Lords would be needed for any future Bill which by-passes the referendum lock – but is the House of Lords, at least with its present membership, a safe guarantor of the UK constitution against future transfers of powers to Europe? Apart from the possibility of such partial entrenchment, the ‘referendum lock' provisions of this Bill are essentially the best that can be done within the constraints of our present constitution.
All this leads to the conclusion that this Bill should be strongly welcomed for what it does. There are other things that it does not do, such as laying down a formal and legally binding system of Parliamentary control over the exercise by ministers of existing law-making powers under the Treaties.
More fundamentally, the Bill stops us on the escalator of European integration but it does not, and cannot, switch off that escalator. The reality is that the existing QMV powers under the European Treaties are now so wide and extensive that further integrationist measures can be passed regardless of how the UK exercises its vote. Finding ways to switch off or reverse that escalator while preserving the UK's freedom to trade within the European market is the real challenge which now faces us.