(DPRR/10-11/44)
DELEGATED POWERS MEMORANDUM
EUROPEAN UNION BILL
A. INTRODUCTION
1. This memorandum has been prepared for the Delegated Powers and Regulatory Reform
Committee (“the DPRRC”) to assist with its scrutiny of the European Union Bill (“the Bill”).
2. This memorandum identifies the provisions in the Bill that confer a power to make delegated legislation. It explains why the powers would be conferred and the nature of, and the reason for, the procedures selected.
B. PURPOSE AND EFFECT OF THE BILL
Part 1 – restrictions on treaties and decisions relating to EU
3. Part 1 of the Bill provides for restrictions on treaties and decisions relating to the EU.
4. Part 1 introduces an obligation to hold a referendum where any proposed future EU treaty or treaty change seeks to transfer competences or areas of power from the UK to the EU.
A majority of votes cast in the subsequent referendum would need to support the treaty or treaty change before the UK could agree formally, or ratify the treaty.
5. Part 1 would also ensure that an Act of Parliament would be required before certain decisions provided for in the EU’s Treaties, known as ‘ratchet clauses’, are put into effect.
The use of certain specified ‘ratchet clauses’, which would amount to the transfer of an area of power from the UK to the EU, would also be subject to a referendum.
6. There is no one agreed definition of a ‘ratchet clause’. Some provide for a modification of the Treaty on European Union ( “TEU”) and the Treaty on the Functioning of the European
Union ( “TFEU”) (together referred to as the “EU Treaties”) without using the EU Treaties’
Ordinary Revision Procedure set down in Article 48 TEU. Some are one-way options already in the EU Treaties, which EU Member States can together decide to exercise and which allow existing EU powers to expand. There are such options, for example, in the substantive use of Article 25 TFEU (addition to the list of citizenship rights) and the substantive use of Article 82(2)(d) TFEU (establishment of minimum rules of criminal procedure). Part 1 lists those articles in the EU Treaties which the Government considers to be ‘ratchet clauses’ and which will therefore require primary legislation before they can be used; and those articles which the Government considers would transfer power or competence from the UK to the EU were they to be used, and which will therefore require approval by referendum before they can be used. Part 1 also lists a number of articles in the EU Treaties which, while considered to be ratchet clauses, would require instead a positive vote in both Houses of Parliament before the UK could agree to their use.
7. Part 1 of the Bill makes further provisions about referendums. It makes provision regarding how referendum questions under Part 1 must be presented to voters, defines the persons entitled to vote in such referendums, and sets out the role of the Electoral
Commission in promoting public awareness of referendums and how to vote in them.
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Part 2 – implementation of transitional Protocol on MEPs
At an inter-governmental conference on 23 June 2010, the Government agreed to a transitional Protocol to the EU Treaties making a temporary amendment to the number of
Members of the European Parliament (“MEPs”), following an agreement in principle of the terms of the Protocol by the European Council of 19 May 2010. Section 5 of the
European Union (Amendment) Act 2008 provides that any amendment to the EU
Treaties, however minor, has to be approved by primary legislation. Part 2 of the Bill provides for this approval.
8. The Lisbon Treaty allowed for 18 extra MEPs to be allocated to 12 Member States, including the UK, and a decrease of 3 MEPs from Germany. The UK gains 1 extra MEP.
This change was not put in place at the last full European Parliamentary elections in 2009 because the Lisbon Treaty had not yet entered into force. The European Council agreed that these extra MEPs can be elected now, rather than waiting until the next full European
Parliamentary elections in 2014, and that the three MEPs from Germany who would otherwise lose their seats will be able to remain in office until the end of the current
European Parliamentary term in June 2014.
9. This is a technical change, bringing into force a clause already agreed in the Lisbon
Treaty which increases the number of MEPs, and which requires an amendment to the
EU Treaties as it temporarily increases the maximum number of MEPs permitted under the EU Treaties. It does not transfer any new power or competence from the UK to the
EU, and so does not meet the proposed criteria in the Bill for holding a referendum.
10. Part 2 of the Bill makes provision for the UK’s extra MEP in domestic law and allocates it to a particular electoral region (as recommended by the Electoral Commission). Schedule
2 to the Bill makes further provisions about the filling of the additional seat.
Part 3 - general
11. Clause 18 in Part 3 of the Bill confirms that directly applicable or directly effective EU law
(that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of an Act of Parliament. The clause does not change the existing relationship between UK and EU law.
12. Part 3 also sets out final provisions including the commencement provisions.
C. DELEGATED POWERS
Clause 21: Commencement by Order
Power conferred on: The Secretary of State
Power exercised by: Order made by statutory instrument
Parliamentary procedure: No procedure
13. Sub-section (1) of clause 21 of the Bill provides that section 15 (approval of MEPs
Protocol) and Part 3 (general provisions) of the Bill will come into force on Royal Assent.
14. Sub-section (2) of clause 21 of the Bill empowers the Secretary of State to commence the remaining provisions of the Bill by order made by statutory instrument. Sub-section (3) further provides that different days may be appointed for different purposes.
15. Since the order to commence is administrative, no parliamentary procedure is attached to it. This is consistent with the position in respect of orders made under section 8 of the
European Union (Amendment) Act 2008 (“2008 Act”) in relation to commencement of the
2008 Act.
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Paragraph 8(4) of Schedule 2: Election of Additional MEP – By-election
Power conferred on: The Secretary of State
Power exercised by: Order made by statutory instrument
Parliamentary procedure: No procedure
16. Clause 17 of the Bill makes provision for the election of an additional UK MEP. It provides that the initial allocation of the additional seat is to the registered party or individual candidate by reference to the results of the general election to the European Parliament held on 4 June 2009 (“2009 results”). Schedule 2 sets out the detailed rules establishing the procedure to be followed to determine how such allocation is to be made and other procedures to be followed.
17. Paragraph 8(3) of Schedule 2 provides that a by-election is to be held to fill the seat in the unlikely event that, under paragraph 8(1), the additional seat cannot be filled by reference to the 2009 results, for example if all of the other eligible candidates by reference to the
2009 results have died or are otherwise indisposed.
18. Paragraph 8(4) of Schedule 2 empowers the Secretary of State by order to specify a day for the by-election to take place. Paragraph 9(1) of Schedule 2 provides that an order under paragraph 8(4) is to be made by statutory instrument. Since the order is essentially administrative, specifying on what day the by-election is to take place, no parliamentary procedure is attached to it. Paragraph 9(2) of Schedule 2 provides that a statutory instrument containing such an order should be laid before Parliament after being made.
This is consistent with the position in respect of orders made under section 4 of the
European Parliamentary Elections Act 2002 (“2002 Act”) in relation to the Secretary of
State appointing by order the day on which the poll at each general election of MEPs is to be held. Likewise, section 13(4) of the 2002 Act provides that a statutory instrument containing an order under section 4 is to be laid before Parliament after being made.
19. It is considered to be very unlikely in practice that a by-election will be required to fill the additional seat by reference to the 2009 results and therefore very unlikely that the
Secretary of State will need to make an order under paragraph 8(4) of Schedule 2 to specify a day for such a by-election to be held.
Foreign & Commonwealth Office
9 March 2011
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