Understanding the Issues and Concerns Involving the European Union Bill 2010 - Essay Example

Understanding the Issues and Concerns Involving the European Union Bill I. Introduction The European Union Bill has been the of many heated discussions in the past months. Since the British Coalition Government assumed into office in May 2010, the idea of passing a bill that will look into the powers of the Parliament has put forward1. According to the British Coalition Government, the people have been frustrated with the way the European Union has developed in the past years and that the people now feel disconnected with the EU decisions2. Aside from finding a way to reconnect the people to the EU decisions, the Coalition Government also vowed to examine the sovereignty of the United Kingdom and make sure that the powers of the parliament remains intact and to make it absolutely clean that the ultimate authority to legislate should remain in the hands of the Parliament3. The existence of the European Union Bill which contains the provisions promised by the Coalition Government was later on mentioned by the Queen in her speech and on 3 September 2010, the existence of such bill was confirmed by the Minister for Europe4. After its formal introduction to the public and after it was brought to the Parliament for first reading, there have been numerous discussions regarding the topic and several issued surfaced which are yet to be answered the proponents of the Bill. Several questions about the bill surfaced from different sectors but the main concerns underlying the passing of European Union Bill include the sovereignty of the powers of the Parliament, effect proposed referendum lock which sought to consult the people regarding matters concerning the different EU treaties, and the effect of the ratchet clauses or passerelles in the EU treaties5. The EU Bill also contains provisions that will allow the ratification of the Transitional Protocol which mandates the composition of the European Parliament6. The ratification of the protocol is not really a contentious issue that needs to be resolved but rather it is more like a ministerial function that needs to be done. On the other hand, the other three issues mentioned before hand can affect the lives of the people in the United Kingdom. To get a better idea on how these issues, let us take a look at them one by one. II. Sovereignty of the Parliament According to the Coalition Government, changes in the EU Treaties that may abdicate the powers of the Parliament and transfer it to the EU can have tremendous effect on the United Kingdom7. Note that the abdication of powers from the parliament could mean that the United Kingdom may lose is veto power in many areas which can lead to its inability to block legislations that may have some negative impact on the country. In order to prevent this situation from happening, the Coalition Government wants to establish as safety net by providing the Parliament with sovereign supremacy through the European Union Bill8. The doctrine of parliamentary supremacy has been part of English law for several generations and it has become a constitutional ideology that dictates that the “Parliament can do anything except bind its successor”9. The doctrine of parliamentary supremacy was formally incorporated into the English system through the enactment of the European Communities Act 1972 which provides that the Parliament has the final say regarding the laws that should be implemented with the UK10. Historically, the powers of the parliament cannot be usurped by the courts thus, whatever legislations enacted by the Parliament, the courts cannot declare it as invalid. This can only mean that the Parliament enjoys its own sovereignty and its powers may not be curtailed by another other agencies including the courts11. Although English law so declare that Parliament shall enjoy sovereignty, there are provisions under the EU treaties that may interfere with the inherent powers of the parliament. There are a number of provisions in the European Union Treaties that require the courts to implement the laws of the EU over local laws12. This means that although the Parliament still has the power to legislate and enact laws within its territorial jurisdiction, the laws that it has enacted may be considered as inferior to the laws enacted by the European Union. The idea that the Parliament may lose its powers to enact laws and have these laws implemented within its territorial jurisdiction does not sit well with the Parliament so there is now a move to enact the EU Bill which will give the parliament sovereign supremacy. Technically, giving sovereign supremacy to the Parliament will restore the powers of the parliament to determine what laws should govern the land. Giving the Parliament sovereign supremacy is very important at this point because this will mean that the laws enacted by the EU can only be implemented in the United Kingdom if the Parliament gives its permission13. In other words, unless the Parliament says an EU law can be implemented in the United Kingdom; such EU laws will not have effects in the counts of the law under English jurisdiction. Since EU laws may or may not be implemented within United Kingdom soil, the UK government, through the Parliament retains control over the laws government its territories. As it is, the European Union cannot just dictate the UK to do what it wants to do without going through approval by the Parliament. For instance, if the EU rules that borders of different European Union states should be opened to accommodate citizens from different European Nations, the United Kingdom cannot be compelled to follow such European Union directive if the Parliament does not give its consent14. Moreover, in the event where Parliament is forced to give up its veto on certain laws enacted by the European Union, a safety measure in the European Union Bill which triggers a referendum lock may be invoked by the parliament so the people will now have to decide on the issue through a referendum15. Although the idea of giving the Parliament sovereign supremacy through the European Union Bill, this proposition may prove to have a number of negative repercussions. Giving Parliament sovereign supremacy may weaken the position of the United Kingdom in the European Union16. Note that if the UK imposes restrictions when it comes to the implementation of EU laws and directives within its soil, it may stifle the EU international objectives and many prevent the free flow of trade, sharing of resources and establishment of a single market. Moreover, passing the EU Bill may trigger an avalanche of legislations to the same effect by other EU nations and may eventually become an obstacle to achieving the EU goals. On the other hand, the idea that parliament is sovereign is not really a new concept in English law and it has been in effect for many years. According to the court in the case of Madzimbamuto v Lardner-Burke17, the sovereignty of the Parliament is a recognized fact and it has been so for many years. In fact, the sovereignty of the Parliament is well recognized that the court cannot interfere with its functions and cannot declare its acts as invalid. Since the sovereignty of the Parliament is a recognize doctrine under English laws18, the inclusion of such provision in the EU Bill will not have any drastic effect in the United Kingdom. Moreover, the declaration of sovereign supremacy of the Parliament only has domestic effect so it has but little impact on the entire European community. As it is, even if the concerns about issue may be valid in the sense that there is always a danger that the Parliament will use its veto power too often to block EU legislations from being implemented within UK soil, such concern may not really have so much bearing in the sense that the sovereignty of the Parliament is a long recognized principle under English law. What the EU Bill is trying to do here is to reiterate and put into writing once more the doctrine that has been long recognized by the English law. b. Referendum Lock One of the most controversial propositions that are set in the EU Bill is the referendum lock clause which will subject the amendment or changes in the EU Treaties to a referendum before the UK government can agree with it. A referendum is a form of direct democracy whereby the electorates are given the chance to have their voices heard by casting their ballots to agree or disagree on certain issues19. Depending on the purpose of the referendum, it may be legally binding or may simply have a persuasive effect on the Parliament. In the case of the EU Bill, the referendum locked proposed is meant to serve as permission for the government to accept or reject the changes of EU Treaties20. Technically, holding a referendum means that the people are given the power to make a collective decision on whether or not it will agree to the proposed changes in the EU Treaties. What the EU Bill is trying to do here is to put a mechanism to create a balance of power and to keep the people involved in the major decision-making processes in the UE. By getting the general sentiment of the people regarding matters of great importance through a referendum, the government is able to preserve the democratic process of letting the people participate in governance. The idea that any changes in the EU Treaties will require a referendum before it can be approved by the UK government may sound rather unreasonable at first glance but as explained by the Coalition Government, not all changes in the treaty may trigger a referendum and this provision is not meant to be a catch all provision. According to the British Foreign and Commonwealth Office, only those changes in the EU Treaties that transfers competence from the UK to the EU may be the subject of referendum21. The provision on referendum is meant to have domestic effect so when the proposed amendment in the EU Treaties does not concern the UK, there is no need for the government to call a referendum to let the people decide whether or not they will allow the government to accept the changes. This means that not all substantial changes that involve the transfer of powers in the EU Treaties can trigger a referendum in the U. As stated by the British Foreign and Commonwealth Office, referendum may be called only when the changes in the EU Treaties calls for the country to give up its veto powers on some significant areas22. When there is a need for the UK government to transfer powers or competence to the EU that is when the referendum is needed. For instance, when there is a need to give new powers to the EU to impose obligations on its member nations including the UK, such granting of powers may be subject to referendum. Note that referendum can only be called when there is a need to transfer powers or competence and not when there is a need to exercise such power or competence. For instance, where the power or competence has already been transferred to the EU before the passing of the EU Bill, there is no need for a referendum to allow the government or the EU to exercise such competence. Although allow the people to participate in major decision making processes is very important in a democracy, such process may prove to be expensive and the expense of this exercise of democratic freedom is one of the concerns of many sectors. To a great extent, this concern is valid since referendums involve logistical resources that cost money. However, according to the Coalition Agreement, transfers of powers or competence happen rarely and given the magnitude of this change, spending some money to consult the people about these changes is but a small price to pay for the promotion of democratic processes. The referendum lock is also designed to fit into the constitutional framework of the country thereby allowing for constitutional exercise of democracy. The provision for referendum is meant to serve as a checking mechanism to ensure that the will of the people is not frustrated. The UK is not the only country in the EU that wants referendum lock provisions to protect their interests. In fact, EU countries like Ireland, France and Denmark already have their own version of the referendum lock23. III. Ratchet Clauses or Bridging Clauses Ratchet clauses or bridging clauses are self-amending provisions that are included in a number of EU Treaties24. Some of these ratchet clauses allow changes in the EU Treaties without the need for any formal changes in the Treaty while some of these ratchet clauses are designed to allow existing powers or competences of the EU to increase or expand. At present, there are no agreed definitions or limitations on the ratchet clauses incorporated in the EU Treaties as these clauses as meant to be fluid and flexible. Given the fact that there are no agreed definitions and limitations on the ratchet clauses, these clauses can be interpreted and expanded in any way possible25. Given the broad powers that may be invoked under the ratchet clauses, the EU Bill seeks to define the limits of these ratchet clauses and protect the rights of the English people26. In defining the nature of the ratchet clauses, the EU Bill divided these clauses into two categories, namely those that require the transfer of powers or competence and those that do not require the transfer of powers or competence. The ratchet clauses that require the transfer of powers or competence may be subject to referendum while those that only require the exercise of ministerial functions and competences are not subject to referendum27. The including of a provision for the interpretation of the limitations of ratchet clauses has been the subject of concern for some people in the EU28. Note that if the EU Bill begins to interpret the ratchet clauses and decide which clauses are acceptable or not acceptable to the UK, this may cause the slowing-down of EU decision-making processes. Note that when the ratchet clauses in certain EU Treaties are meant to admit changes in the Treaty without a formal amendment and when these ratchet clauses are deemed unacceptable to the UK, then the only way to make changes in the Treaty would be through a formal amendment which can take time29. On the other hand, if the UK does not include the interpretation of ratchet clauses in the EU Bill, it may be forced to accept the changes in the EU Treaties automatically and this automatic acceptance may result to the loss of its veto powers on some very important provisions which abdicates the power of the UK Parliament in favor of the EU parliament30. IV. Conclusion The EU Bill is designed to protect the rights of the UK people and to ensure that the UK government will not lose control over its territories31. The passing of the EU Bill will herald a lot of changes in the relationship of the UK and the EU. The provisions involving the powers of the parliament, the interpretation of ratchet clauses and the calling of referendum can have big impact on the way the UK may deal with the changes introduced in the EU Treaties. The concern that upholding the sovereignty of the UK Parliament may limit the implementation of certain EU rules and regulations within UK soil is justified in the sense that without the approval of the UK Parliament, no EU laws may be implemented in the UK. As for the concerns regarding referendum clause in the EU Bill, the fact that substantial changes in the EU Treaties which transfer competencies and powers from the UK to the EU will trigger a referendum to let the people decide whether or not it will allow the government to accept these changes is also very much justified. Note that a referendum will not only slow-down the decision-making process, it may also prevent the implementation of certain changes in the EU Treaties if the people voted “no” on these provisions. On the other hand, the interpretation of the ratchet clauses can lead to further delay in the decision-making process of the EU as it may limit the ability of the EU Treaties accept amendments without going through the formal process. Bibliography Books and Journals 1. Alder, John, “Constitutional and Administrative Law” 7th edition Palgrave Macmillan (2009) 2. Berry, Elspeth and Hargreaves, Sylvia, “European Union law” Oxford University Press 2nd edition (2007) 3. Budge, Ian , McKay, David , Newton, Ken & Bartle, John “The new British politics” Longman 4th edition (2007) 4. Coury, Christopher A. "Direct Democracy through Initiative and Referendum." Notre Dame Journal of Law, Ethics and Public Policy 8 (1994). 5. Ekengren, Markus et al. "Solidarity or Sovereignty? EU Cooperation in Civil Protection" in Journal of European Integration 28/5 (2006) 6. H. de Waele, The European Union on the Road to a New Legal Order - The Changing Legality of Member State Withdrawal, Tilburg Foreign Law Review (2005) 7. P Craig and G de Búrca, EU Law: Text, Cases and Materials (4th edn OUP 2008) 8. Turpin, Colin & Tomkins, Adam, “British government and the constitution: text and materials” Cambridge University Press (2007) Statutes, Law Reports and Cases 1. European Union (Amendment) Bill Bill 48 of 2007-08 2. European Union Committee of the House of Lords The Treaty of Lisbon: an impact assessment. London: Stationary Office (2008). 3. Foreign and Commonwealth Office, “The Reform Treaty: The British Approach to the European Union Intergovernmental Conference”, Cm 7174, July 2007 4. HM Government, ‘The Coalition: our programme for government’ (Cabinet Office, May 2010) 5. Madzimbamuto v Lardner-Burke [1969] 1 AC 645 6. 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UK House of Commons Library Research Paper 07/80,: The EU Reform Treaty: amendments to the Treaty on European Union (22 November 2007) http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf accessed 15 December 2010 12. UK Parliament, “Transcript on the EU Bill Debate” (7 December 2010) http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm101207/debtext/101207-0002.htm#10120737000002 accessed 17 December 2010 13. What is the EU Bill? http://www.fco.gov.uk/en/global-issues/institutions/britain-in-the-european-union/003-EU-Bill/ accessed 16 December 2010 14. William Hague promises UK sovereignty law (6 October 2010) http://www.bbc.co.uk/news/uk-politics-11484355 accessed 16 December 2010 Read More