See you in Court: Should there be a referendum before the UK opts into the European Arrest Warrant?

Could another Rees-Mogg Judicial Review lead to a referendum?

Update 17:00:
The Spectator Coffee House blog is reporting the Conservative Chief Whip may be preparing MPs for a decision to stay out of the EAW. However the line from Number 10  is that they are still "in principle seeking to opt back in."
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Before 1 December, MPs will vote on whether to accept the Coalition's decision to opt back in to around 35 EU Crime and Policing laws and, for the first time, accept the jurisdiction of the European Court of Justice - or stay out completely. As we have written before, the choice is a straight one between "more or less EU control over UK crime and policing."

But this flagship Coalition EU policy may fly in the face of another - the European Union (Referendum) Act 2011 - which was supposed to give the British people the final say on the transfer of powers to the EU. So why are we not going to see a referendum? Well as this decision was already in the pipeline, it was excluded when the Government drafted its legislation. However, other areas such as participation in the European Public Prosecutor would definitely require a referendum.

This division will now be tested in the Courts courtesy of a judicial review by Jacob Rees-Mogg MP and UKIP treasurer Stuart Wheeler who believe that not only does the decision to opt-in to the European Arrest Warrant require a referendum, but the EAW also contravenes Magna Carta and Habeas Corpus. [It is worth remembering that Rees-Mogg's father and Stuart Wheeler have both previously brought legal actions against ceding of power to the EU]. As a legal opinion, commissioned by the Freedom Association, points out there are a number of serious problems including:

“With regard to the question of whether the UK’s opt-out from the jurisdiction of the European Public Prosecutor’s Office (EPPO) will be rendered ineffective owing to the ability of the EPPO to initiate the issue of an EAW and secure its execution in the UK, it is quite clear that it would."

It's unlikely that the Courts will side with the appeal, but in any case, it'll be interesting to follow what it has to say about it.

Is the EU Referendum Bill dead?

The EU referendum Bill - pushed forward by Tory backbenchers aiming to legislate now for an EU referendum to be held in next Parliament (post-2015) - passed through the Commons with flying colours but is now stuck in the House of Lords.

Labour and Lib Dem Peers in the Lords have just managed to pass two amendments. These amendments are now sent back to the Commons which will have to decide whether to accept or reject them.

Big question now is whether this Bill will run out of the time, and therefore die an early death. This happens if the 2013-2014 Parliament session runs out before the Bill is passed (in the UK system, all proposals are chopped by the end of a parliamentary session). This ends at the end of April.

The short answer is that's we don't know yet, but it'll go down to the wire.

Parliament could attempt a round of Parliamentary Ping Pong, or "Wiff Waff" as Boris Johnson called it, as the amendments are returned to the Commons to be debated - probably on Friday the 28 February. If their Lordships amendments are reversed by MPs they will be ponged back just in time for the end of the session - at the end of April.

But does the Commons actually need to pong them back or could they simply accept it all in order to speed the Bill on its way? Well, the first amendment is about the actual referendum question:

"Do you think that the UK should be a member of the EU?"

Which the Peers want to change to:

"Should the UK remain a member of the EU or leave the EU?"

Well, opinions are divided as to whether the question will make any difference on the outcome - something we looked at here. But the Electoral Commission felt that some Britons were blissfully unaware the UK was in the EU at all, hence their suggested change. The second amendment, to Commission an impact assessment on the consequences of an EU exit, seems harmless enough but will not really settle anything as any impact assesment will become the subject of the dispute. In any event legislation is not required. So perhaps the Commons could accept this one aswell?

Or would it be better to reject the amendments and use the Parliament Act in the next session as we looked at here?

Regardless, this is a setback to the Conservatives, who will take comfort from the political advantage to be made from telling the public that - in their view - Nick Clegg and Ed Miliband do not trust them.

What's in a question?

Coming to a polling station near you?

The UK's Electoral Commission, in response to the onward march of James Wharton MP's EU Referendum Bill, has been opining on how to ask the UK population if it wants to remain in the EU. .

James Wharton MP's original:

'Do you think that the United Kingdom should be a member of the European Union?' (Yes/No)

However, Electoral Commission would like to tweak this to:

1. 'Should the United Kingdom remain a member of the European Union?'
   (Yes/No)Or, the one that it seems to favour:
2. 'Should the United Kingdom remain a member of the European Union or leave the European Union?'
   (‘Remain a member of the European Union’ / ‘Leave the European Union’)

So what is the difference? Well not much but the Electoral Commission feels there is a need to emphasise that the UK already is a member of the EU. Apparently, the EC worries that there are some people in the UK not realising that the country already is a member of the EU - the original question might therefore be interpreted as one about whether the UK should join. Something we doubt, particularly after a long referendum campaign, anyone could remain in the dark on. Still perhaps no harm in following their advice?

Incidentally, the question is for next years' Scottish referendum  which the Electoral Commission seems to be happy with, reads:

"Should Scotland be an independent country?" (Yes/NO)

We doubt there are any Scots not aware that Scotland is a member of the UK, but for consistency, perhaps the EC could have recommended the following:

• 'Should Scotland remain a member of the United Kingdom (and EU) or leave the United Kingdom (and EU)?'
  (‘Remain a member of the UK and EU’ / ‘Leave the UK and EU’)

There are many ways to ask for the exit...

EU Referendum Bill faces many hurdles

Now the Conservatives have published their EU Referendum Bill there only remains the small question of how it could become law.

It will not be a Government Bill but will now be taken forward as a "Private Members Bill". As such its chances of survival are limited and at the mercy of Parliamentary procedure [specifically Standing Order No14 (SO 14) which allows some Parliamentary time to be allotted to the winners of a Parliamentary ballot]. Here is how it works.

 

First hurdle (passed) - win the ballot. The ballot has picked 20 'winners' (out of c.400 contestants) who will gain priority in getting their Bills past the formal presentation and 1st Reading and on to a 'real' 2nd Reading on an allotted Friday. Top of the list announced today is James Wharton MP who has said he will pick up the Conservatives Bill as his own.  The Bill will now be presented on the "fifth sitting Wednesday" i.e the 19th June 2013. At this point we will only formally know the name of the Bill.

Second hurdle - get a Friday sitting allotted. The presentation of the Bill is a formality. However once past it will be allotted a Friday sitting (9.30am to 2.30pm). The first date available is 5 July 2013 but they continue through to February.

Third hurdle - assemble 100 MPs to vote through a "closure motion". If the Bill is still being discussed at 2.30 on its Friday an MP must move that "the Question be now put" otherwise the Bill will be adjourned. For this to happen 100 MPs are needed - no small task normally given Friday is normally an MPs constituency day but in this case this would not be a problem as it will be a three line whip.

Fourth hurdle - win a vote on the Bill's second reading. Once the closure is secured a vote on 2nd reading will follow. This will be the crucial vote supporters of the Bill will need to win.

Fifth, sixth and seventh hurdles etc - survive the Committee and report stages and Lords. If successful in a 2nd reading vote the Bill will go into a Commons public bill committee. If it survives this it will then come back to the House of Commons for report stage (where there could be a vote), a third reading and then onto the Lords...

All quite drawn out. It is safe to assume there is little chance of the Bill becoming law but there could potentially be a vote, and that is perhaps what its proponets really wanted all along.

Cameron: Before the 2015 election, we will do everything we can to make an EU referendum the law

David Cameron just sent out this note to Conservative members and activists:

In January, I set out our party’s position on Europe. I made clear that the EU needed fundamental, far reaching change - and that Britain would lead the way in negotiating that reform. I also promised an In-Out referendum once those negotiations were complete, and at any event by the end of 2017.

That's the right time to have a vote - it is wrong to ask people whether to stay or go before we have had a chance to put the relationship right. But make no mistake - my commitment to a referendum is absolute. If I am Prime Minister after the next election, there will be an In-Out referendum. No ifs, no buts. And before the 2015 election, we will do everything we can to make it the law. That’s why today the Conservative Party is publishing a draft bill that would legislate for a referendum by the end of 2017.

We understand that we are in a Coalition government - but we are going to examine every opportunity to bring it before Parliament and try to get it on the statute book. For too long the British people have had no say about their future in Europe. I am absolutely determined to put that right. Our action today is further proof we’re serious. You can pledge your support for the bill here. 

So does the "if I become Prime Minister" include also being a PM in a coalition?