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.
86.Section 7 provides that in respect of the specific matters set down in subsections (2) and (4) a Minister may not confirm the UK’s approval of a decision; vote in favour of; or otherwise support a decision, unless the decision is approved by an Act of Parliament. The Treaty Articles covered by this section have been identified as ‘ratchet clauses’ (also referred to as ‘passerelles’ or ‘bridging clauses’). If an Act of Parliament is not passed, the UK cannot agree to the use of any of these Treaty Articles. All of the decisions covered by section 7 are subject to a unanimous vote in either the Council or the European Council, meaning that any Member State can veto the proposal. Section 7 therefore applies when the Government has agreed to the use of one of the decisions set out in this section, and requires Parliamentary approval before the UK can approve formally the decision.
87.The specified decisions have been separated into two subsections because the Act of Parliament necessary to give final UK agreement to their use will be required at different stages in the decision-making process. All of the four decisions listed in subsection (2) will require an Act of Parliament after the decision to adopt them is taken in Council (in other words, after conditional approval but before formal approval is given by the Member States that the decision can enter into force). Subsection (1) stipulates that the UK cannot give final approval to the use of any of the decisions listed in this subsection until the decision has been approved by an Act of Parliament.
88.All of the decisions listed in subsection (4) would require an Act of Parliament before the UK can vote to agree their use in the European Council or Council (in other words, prior Parliamentary approval is required through an Act of Parliament before the UK can agree to the decision in the European Council or Council). The requirement for an Act of Parliament before the UK can agree to the decision in the European Council or Council is provided for in subsection (3). One of these decisions (Article 17(5) TEU) is subject to a unanimous vote in the European Council, while all the other decisions are subject to a unanimous vote in the Council. Sections 7(4)(b), 7(4)(e) and 7(4)(f) are the equivalent provisions to those in sections 6(5)(b), 6(5)(i) and 6(5)(j), in respect of any relevant proposals which would not affect any of the Treaty Articles set out in Schedule 1.
89.The Council can use Article 352 TFEU (sometimes referred to as the broad ‘enabling clause’) to adopt measures in order to attain one of the EU’s objectives, but only where the existing Treaties have not provided the necessary powers to do so already, and so long as the measure concerned remains within the confines of the EU’s existing competence. Subsection (1) provides that any one of the conditions in subsections (3), (4) or (5) needs to be satisfied in relation to an Article 352 decision.
90.Subsection (3) contains the general rule which is that the UK may not agree to a decision under Article 352 TFEU unless the decision has been approved by an Act of Parliament, which specifies the decision to be agreed.
91.Subsection (4) provides for the Parliamentary approval of urgent or emergency uses of Article 352 without the need for an Act of Parliament. Article 352 has been used in the past for urgent or emergency uses, where rapid EU action has been agreed but where there was no explicit legal basis on which to base that action. Subsection (4)(a) and (b) stipulates that the UK may agree to the adoption of a measure based on Article 352 in urgent or emergency cases if, in each House of Parliament, a Minister moves a motion that the House approve the Government’s intention to support a specified measure on the grounds of urgency, and both Houses of Parliament agree to the motion without amendment.
92.Subsection (5) stipulates that an Act of Parliament would not be required for any Article 352 proposal which satisfies any of the exemptions listed in subsection (6). The exemptions in subsection (6) seek to prevent unnecessary Acts of Parliament to approve measures which have been agreed in substance under previous measures using the Article 352 TFEU legal base. They cover the following circumstances:
any proposal using Article 352 TFEU as its legal base which is, in substance, the same as a previous measure agreed by the UK;
an extension in time of an existing Article 352 TFEU measure, for example a measure that has a three-year timeframe but on which it is decided to extend the measure for a further three years;
an extension in breadth of an existing Article 352 TFEU measure to incorporate another Member State or third country, such as a measure that proposes to repeat an existing training programme in a third country to safeguard against counterfeiting of the Euro in another third country;
any proposal to repeal an existing Article 352 measure; and
any proposal to combine a number of existing Article 352 measures into one EU legal instrument or to consolidate several amendments of an existing measure in one text.
93.If a proposed use of Article 352 relates only to one or more of these exempt purposes, subsection (5) provides that a Minister may lay a statement before Parliament. This statement must specify the draft decision and state that, in the Minister’s opinion, the decision relates only to one or more of the exemptions. As with all Ministerial decisions, it would be possible for a member of the public to challenge the decisions of the Minister in such a statement.
94.Subsection (7) provides that, where the Government has previously relied upon the emergency exemption in subsection (4) to agree an Article 352 proposal, the Government cannot then seek to rely upon the first two exemptions set out in subsection (6). In other words, the Government would not be able to seek a further exemption to prolong an existing Article 352 measure, if that measure was adopted originally because it was considered urgent. In the case of a subsequent proposal to prolong or renew an ‘urgent’ measure, an Act of Parliament would be required.
95.Title V of Part 3 of TFEU contains provisions relating to the Area of Freedom, Security and Justice (‘AFSJ’) (which continues to be commonly referred to as Justice and Home Affairs (‘JHA’)). This part of the Treaty is subject to special arrangements governing the UK and Ireland’s participation in any measures, set out in the AFSJ Protocol. Using the provisions of the Protocol, the UK can decide whether to participate in any of the measures agreed under Title V, but otherwise the UK is not bound by any of the measures agreed under this section of the Treaty.
96.This section provides a series of additional conditions which need to be fulfilled before the UK could agree to participate in three specified decisions in the AFSJ area, considered to be ‘ratchet clauses’. If the Government decides against participating in these measures, then none of these conditions would apply. The three decisions are:
A decision under Article 81(3) TFEU, which would permit a move from the special legislative procedure to the ordinary legislative procedure (co-decision) in respect of family law measures with cross-border implications. This would in effect mean a move from unanimity to qualified majority voting.
A decision under Article 82(2)(d) TFEU, which would permit additions to the list of specific aspects of criminal procedure on which the EU can adopt minimum rules.
A decision under Article 83(1) TFEU, which would permit additions to the list of areas of particularly serious crime with a cross-border dimension on which the EU can act to specify minimum rules on the definition of those offences or sanctions to apply.
97.Participation by the UK in any measure brought forward under these provisions would be subject to a two-stage Parliamentary approval process. This would require: (a) Parliamentary approval before the UK could participate in the negotiation of the measure in accordance with the AFSJ Protocol; and (b) an Act of Parliament before the UK could give final agreement to the measure. All three Treaty articles above are subject to unanimous agreement in the Council, and so if the UK agreed to opt-in from the outset (within the three month period provided for by the AFSJ Protocol), the UK would then have the ability to block the measure from entering into force. In such a case, where the UK blocks the adoption of a measure to which the Protocol applies, the other Member States can (after a reasonable period of time has passed) proceed to adopt the measure without the UK’s participation, but the act concerned would not then apply to the UK.
98.The first part of this two-stage process is provided for in subsection (3), which requires both Houses of Parliament to pass without amendment a motion tabled by a Minister, before the UK can opt into a proposal to use any of the three decisions above, or any subsequent decision (as explained in the paragraph above). In this case, a positive vote in Parliament to opt into one of these decisions or a subsequent proposal is not the same thing as giving final agreement to the adoption of the decision in the Council. Instead, this first step can be regarded as Parliamentary approval to allow the Government to enter into negotiations on a proposal at the EU level, where the precise nature and extent of the proposed use of the measure can be determined before Parliamentary approval of the adoption of the measure is sought.
99.The second part of the two-stage approval process is provided for in subsection (4), whereby once the negotiations referred to above are complete, the Government cannot give final agreement to adopt any of the three decisions set out above, or a subsequent proposal, unless the decision to do so is approved by an Act of Parliament.
100.Subsections (5) and (6) relate to Article 4 of the AFSJ Protocol. Article 4 of this Protocol allows the UK to seek to opt into an AFSJ measure at any point after the other EU Member States have adopted it and the final decision has entered into force (a ‘post-adoption opt-in’). The European Commission would then consider whether it is possible for the UK to take part in the measure in question, and if not, to specify the conditions which it would be necessary for the UK to meet, before the UK could then participate. Subject to the fulfilment of any such conditions, the UK can then opt in and participate in the measure concerned, but in doing so would accept the terms of the measure already agreed by the other Member States.
101.Subsections (5) and (6)(a) state that the Government may not subsequently opt into any of the three decisions set out in subsection (2), or any subsequent decision brought forward under these three Treaty articles, unless the decision to do so has been approved by an Act of Parliament. This prevents the UK from opting into a measure without passing an Act of Parliament, merely because the decision has already entered into force. The first part of the approval process, namely that both Houses of Parliament should pass a motion tabled by a Minister without amendment, would not be required in the case of a post-adoption opt-in, as the process of opting into the measure would be combined with the agreement to the measure in full.
102.Subsection (6)(b) also provides that the UK cannot seek a post-adoption opt-in in respect of any measure brought forward that relies upon an earlier use of the three Treaty articles listed in subsection (2), in which the UK has not participated to date, without an Act of Parliament. This provision is necessary because the UK could decide not to opt into a measure brought forward under any of the three Treaty articles in subsection (2), but then decide it wishes to opt into a proposed legislative act drawing on that earlier measure. By opting into the proposed legislative act, the UK would in effect opt into the earlier measure, and so the provisions of section 9 should apply in this scenario.
103.An example of this would be if the Council decided to use Article 83(1) TFEU to add female genital mutilation (FGM) to the list of areas of particularly serious crime with a cross-border dimension, and the European Commission then proposed a legislative act which concerned FGM. The Government could decide not to participate in the original decision to add FGM to the list of areas of crime, thereby not requiring the Parliamentary approval set out in this section. But the Government could then decide that it wished to participate in the subsequent legislative act – and as the proposal stems from the original decision to extend the list of areas of crime to include FGM, the provisions of this section would need to be fulfilled before the UK could participate in the negotiations on, and agree to, the measure.
104.Section 10 provides that eight specified decisions would require a motion to be tabled by a Minister and for both Houses of Parliament to approve the motion without amendment before the UK could agree to any of those decisions. These decisions are subject to qualified majority voting in the Council, with the exception of those mentioned in subsections (1)(c) (Article 252 TFEU), (1)(f) (Article 308 TFEU), (3) (Article 48(7) TEU, in relation to a provision of TFEU not requiring the Council to act unanimously), and (4) (Article 218(8) TFEU), which are subject to a unanimous vote in Council. In the other cases, even if the UK does not vote in favour of, or otherwise support, a decision that is subject to qualified majority voting, the UK may still end up being bound by that decision if there is a qualified majority in the Council in favour of the adoption of that decision.
