Saturday, 11 January 2014

The European Union (Referendum) Bill

Yesterday saw the House of Lords debate the European Union (Referendum) Bill, drawn up by James Wharton, the Conservative MP for Stockton South.

There is one objection that gets made - namely that this is all a big con, as no Parliament can bind its successor, so surely even if it gets passed, and Labour wins the May 2015 general election, all they need to do is repeal it.

The thing about Acts of Parliament is that they are often prescriptive ("the Secretary of State shall/must...") or permissive ("the Secretary of State may..."). While it is true that no Parliament can bind its successor, a Parliament can bind a minister in subsequent Parliaments unless there had been unbinding legislation in the meantime.

One thing ministers do is making Statutory Instruments. For a recent example, take the Parliamentary Voting System & Constituencies Act 2011, which gave us the referendum on switching the voting system for the House of Commons from Single Member Plurality to the Alternative Vote.

In this Act, there is Section 8:

8. Commencement or repeal of amending provisions.

(1)The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if—

(a)more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and

(b)the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act.

(2)If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions.

(3)An order under subsection (1)—

(a)must bring the alternative vote provisions into force on the same day as the coming into force of the Order in Council in terms of the draft referred to in paragraph (b) of that subsection, but

(b)does not affect any election held before the first parliamentary general election following that day.

This basically made the referendum binding. If the people vote yes, then "the Minister" (i.e. the Lord President of the Council and Liberal Democrat leader Nick Clegg) must make an order which changes the voting system to AV.

If, as indeed happened, the people voted no, then Clegg had to introduce a different order. He had no choice. He was bound by the legislation to do this.

You could, correctly, note that this all happened in the same Parliament. What if a general election gets in the way?

The Scotland Act 1978 was an attempt to introduce devolution, and in the referendum of 1 March 1979, the people of Scotland failed to approve the Government's plan (I am phrasing it like that as a majority of those who voted did vote in favour, but it failed to achieve the threshhold of 40% of the electorate in Scotland). And events happened fast that month.

On 22 March, the then-Prime Minister, James Callaghan, announced that Bruce Millan, then the Scottish Secretary, would lay an order before Parliament repealing the Act. And the reason for this was that the Act itself required him to do this. At the time, Callaghan and Millan would have had no idea that they would soon be out of office - technically, unless the Government lost a confidence motion, there was no need for the election to be until November 1979.

On the following Wednesday, 28 March, the Government was defeated by 1 vote on a no confidence motion. On the Thursday, the Liverpool Edge Hill by-election saw the Liberals' David Alton win the seat from Labour; on the Friday, Airey Neave, the Shadow Northern Ireland Secretary and Conservative MP for Abingdon, was assassinated; and on the Sunday, Alfred Broughton, the Labour MP for Batley & Morley, died; and Parliament was dissolved on the following Saturday, 7 April - without the Scotland Act having been repealed.

Let's move on to 20 June. The Conservatives are in power, with George Younger as the new Scottish Secretary. And he has a task to do - ask the House of Commons to approve the order. As he puts it:

We start today's debate in a rather curious situation in that I find myself inviting the House to approve an order the draft of which was laid by a previous Government of a different complexion. In theory, that should almost guarantee unanimity between both sides of the House, but I think that I might be extending my luck a little further than I should if I were to assume that result. It might be truer to say that I am today inviting the House to approve an order that the previous House insisted should be laid in certain circumstances. I think it true to say also that the previous Government did not agree with the House on that matter. The Conservative Party did so agree and still does.

New Parliament, new Government. Surely Younger could not be bound by a previous Parliament? Actually, he was.

Wharton's Bill requires:

1 Referendum on the United Kingdom’s membership of the European Union

(1) A referendum is to be held on the United Kingdom’s membership of the European Union.

(2) The referendum must be held before 31 December 2017.

(3) The Secretary of State shall by order, and before 31 December 2016, appoint the day on which the referendum is to be held.

Suppose this becomes law, and Labour wins the next election. Is a Labour Government bound by it? As the example above shows, yes they are. The only way they can cease to be bound by it is by passing another Act.

So, suppose Labour wins in 2015, and immediately propose a Bill repealing Wharton's. House of Commons might not be much of a problem - although there could be a backbench rebellion. But we'll assume that Labour gets it through the Commons. Despite what they protest about, Labour is over-represented in the House of Lords and to correct this, a massive peerage creation would be needed.

But even in its over-represented state, Labour does not have an overall majority in the House of Lords. Even a Labour/Liberal Democrat Government wouldn't. Hence, they would need to win over Conservative, Crossbench and other peers to get a Bill through.

So, the House of Lords could reject a Labour Bill, in which case, Labour would have to rely on the Parliament Act 1949 to get the Bill on the statute books. They could just about do this by June 2016.

Wharton has chosen an odd date - odd for a couple of reasons. Firstly it is too late - a Labour Government could manage to get legislation passed which would remove the obligation on the Secretary of State to set a date for the referendum. If Wharton had replaced "31 December 2016" with "31 December 2015" or even "30 April 2016", then an incoming Labour Government could not guarantee that it could remove that obligation in time.

The date is odd for a second reason. In the European Union, countries are put into groups of 3 when it comes to the Presidency of the Council of the European Union - often called the Council of Ministers. We are teamed with Bulgaria and Estonia. The idea is that, in an 18-month period, each of the countries in a group holds the Presidency for 6 months, assisted by the other 2. The United Kingdom's turn is July to December 2017, followed by Estonia from January to June 2018 and Bulgaria from July to December 2018.

So, the referendum could be in the middle of our Presidency!

Now, suppose we do vote to leave the EU. The rules are set out in the Treaty of Lisbon:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 188 N(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

Basically, this comes down to a couple of scenarios:

  1. A withdrawal agreement is agreed with the European Council (by Qualified Majority Vote) and the European Parliament, and we cease to be members of the EU once this agreement comes into force.
  2. Following the referendum, the Government notifies the European Council of its intention that the UK shall leave the EU, and no agreement is made, so we simply cease to be members 2 years after the notification.

There is a Parliament research briefing which looks at some of the implications for withdrawing from the EU.

If we do come to a withdrawal agreement following a referendum, then there needs to be a withdrawal date. Recently, Nicola Sturgeon, the Scottish Deputy First Minister and Secretary for Infrastructure, Investment & Cities, gave Maundy Thursday, 24 March 2016 as the date Scotland would leave the United Kingdom if the people voted to leave. This is 18 months after the referendum. Also, it is 6 weeks before the next elections to the Scottish Parliament.

This suggests the spring of 2019 for leaving the EU, if that is what the people vote for. It would be just before the European Parliament elections, so the British Members of the European Parliament elected this May would just be coming to the end of their terms of office. Whoever the UK's Commissioner is would also be in their last few months of office, allowing the President of the European Commission to temporarily ask another Commissioner to double-up on roles.

There is another argument I have seen put forward as to why Wharton's Bill is a waste of time - namely that "Brussels" won't let us leave. We'll simply be told to vote again and again until we get the "right" answer - with Ireland being given as the example.

But Ireland voted on a slightly amended Treaty of Lisbon in the second referendum, which took into account concerns about the original version. And this leads me to an idea.

The Government should also introduce a European Union (Negotiations) Bill. This would do a couple of things. Firstly it would create a set of referendums on 7 May 2015 - to coincide with the next general election. What would these be on?

Well, the Government could set out positions it intends to take in negotiations, on subjects such as the Common Agricultural Policy, Common Fisheries Policy, Working Time Directive etc., and in a set of referendums ask the people to approve or disapprove of its stance.

Secondly, such a Bill could require the Government to enter into negotiations, taking into account the results of these 2015 referendums. Now, unless an incoming Labour Government managed to repeal this Bill, they would be bound by it. And setting an early date by which the Government has to enter into negotiations makes it harder for Labour to repeal this.

So, this would lead to a situation where an incoming Labour Government is required by legislation to enter into negotiations about aspects of our membership of the EU, having to take into account in negotiations the will of the people as indicated by a set of referendums on the same day as the general election.

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