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.

Ed Miliband confuses with a new EU referendum lock he says is "unlikely" to be triggered

Ed Miliband will today set out the Labour Party's position on an EU referendum. Previewing his speech in today's FT, Miliband says:

"I am announcing that the next Labour government will legislate for a new lock: there would be no transfer of powers from the UK to the EU without a referendum on our continued membership of the EU."

So, unlike the existing 'referendum lock' put in place by the Coalition, it would not simply be a referendum on a specific transfer of power to the EU or treaty change but would mean that any proposed transfer of powers to the UK would trigger a straight In/Out vote.

It is not entirely clear whether Labour would therefore repeal the existing referendum lock and replace it with theirs. If not, we might be faced with the strange situation of two referendums - one on the specific treaty change and one on whether to remain in the EU altogether - with no guarantee that they would go in the same direction. If they do replace it, then we could be left with a much blunter instrument, where any transfer of power requires an In/Out referendum. Far from ideal if you wish to stay in the EU but also want to push for reform or dislike the transfer of power on offer.

Miliband himself notes that it is "unlikely" that his referendum lock will be triggered, emphasising that "there are no current proposals – from either the EU or any member state – for a further transfer of powers from Britain. Therefore it is unlikely there will be any such proposals in the next parliament." However, what would happen if, for example, the fiscal compact were to be incorporated into the EU treaties as is envisaged? This would not be a transfer of powers per se but would potentially alter the UK's relationship with the EU substantially.

In the rest of the article Miliband is keen to stress his reform credentials, saying that:

"I know the reputation of the EU is, with reason, at a low ebb. If Britain’s future in Europe is to be secured, Europe needs to work better for Britain. And Britain needs to work more effectively for change within the EU."

Labour has so far been rather vague about its proposals for reform. The Labour leader cites three main areas in his article. On economic competitiveness:

"Europe must do more to address common economic challenges by improving competitiveness, tackling youth unemployment and building an economy that better promotes prosperity."

On EU migration:

"A Labour government would work with our EU partners to lengthen the existing transitional arrangements for countries joining the EU so that their citizens have to wait longer before gaining rights to work here. There should be reforms to rules allowing people to claim child benefit or child tax credit when their children live abroad. And we should look at ways to make it easier to deport people who have recently arrived in this country when they commit crime."

On the democratic deficit:

"The agenda for change, however, must address people’s concerns about how power is exercised in the EU. This means giving back more control to national parliaments. And it means responding to concern that the EU is intent on an inexorable drive to an ever closer union. I am clear this is not Labour’s vision for Europe."

These proposals all sound very much like what David Cameron, and others, have been saying on EU reform.

But, on Labour's conditions for a referendum, it remains to be seen what political impact it will have. On the one hand, Miliband has raised the prospect of a vote (presumably in an attempt to avoid accusations of denying people a say). But, with the other, he is saying that the likelihood of his conditions ever being met is very small. What will the British electorate and other EU governments make of that?

This could be huge: Germany’s fledgling coalition considers its own “referendum lock”

As we point out in today’s press summary, the German media is abuzz with reports that a proposal has been tabled in the on-going Grand Coalition talks between the CDU/CSU and SPD on encouraging more "direct democracy" via national referenda, including on the transfer of new powers to the EU. Details remain unclear, but this looks similar to the UK’s own “referendum lock,” which provides for automatic public votes in many (but not all) cases of powers being transferred from Westminster to Brussels. 

Süddeutsche Zeitung reports that a CDU/CSU and SPD working group (lead by the CSU’s incumbent Interior Minister Hans-Peter Friedrich and the SPD’s Thomas Oppermann), has prepared a draft paper, which states that people should "be directly consulted on European policy decisions of special importance” and that this should apply in particular to:

"the accession of new Member States, important competences being transferred to Brussels or Germany’s financial contributions at the EU level - for this, we want to provide nationwide referendums."

The CSU campaigned for the introduction of referenda on important European policy decisions during the election, while the SPD has, in principle, been in favour of direct democracy for some time. While the CDU is somewhat more sceptical, there is still support for this idea within the party's own ranks. Schäuble last year floated the idea of a referendum on a new constitution.

In other word, this could mean referenda on:

• Significant transfers of power from Germany to the EU;
• Future EU enlargements;
• More financial contributions which, presumably, would include any form of transfer union.

If this becomes part of the Coalition agreement it would be hugely significant. Germany, a country historically allergic to referenda, will have one of the strictest regimes with respect to public EU-related votes in Europe. More to the point, as revealed by our own polling, it’s very hard to see how it would be possible to get, say, fiscal transfers voted through by the public (though even without the commitment, changing the German Constitution could require a referendum as per Schäuble's suggestion). Significant transfers of powers could also be blocked by public opposition.

The big difference between this and the UK’s referendum lock is that the German one would also apply to future enlargements. That would be a de facto massive block on a future Turkish accession, for example.

Still far from certain the idea will materialise in the end but it's definitely one to watch.

Nick Clegg: EU referendum a question of "when not if"

With David Cameron away in the US, Nick Clegg took to the dispatch box for Prime Minister’s Questions today. Unsurprisingly, there was no shortage of references to EU referendums, most of them of a hostile nature. Ahead of today’s debate on the ‘referendum amendment’ to the Queen’s Speech, Clegg was repeatedly asked why he would not support the calls for an in/out referendum as pledged in the infamous 2008 Lib Dem leaflet (calling for a “real” referendum on Lisbon) and in the party’s 2010 manifesto.

Clegg responded that this issue had been settled by the passing of the 2011 EU Act which contains a ‘referendum lock’ in the event of EU treaty change, and accused the Tories of “moving the goalposts” with their policy of an in/out referendum in 2017.

But, within this bit of rhetorical politicking, Clegg said something rather interesting. He said that, due to the 'referendum lock', it was a matter of "when, not if" there is an EU referendum "because the rules are bound to change" as a result of developments in the eurozone.

Clegg accuses Tories of moving goal posts on EU referendum BUT says matter of 'when not if' as EU rules bound to change triggering a vote
— Nick Robinson (@bbcnickrobinson) May 15, 2013

Well, if the rules are "bound to change" why aren't the Lib Dems actively supporting David Cameron's proposals to reform the UK's relationship with the EU - or at least putting forward their own vision - and then putting that to a referendum ? Or would the Lib Dems rather the rest of the EU changed the rules without active input from the UK Government? Good luck winning any kind of referendum on that basis Mr. Clegg.

Lib Dem MEPs vote in favour of triggering the UK's referendum lock?

So MEPs yesterday voted for a resolution to reject the recent deal struck by member states on the EU's long-term budget "in its current form". The motion included calls to scrap all national rebates, more flexibility between budget headings, direct EU taxes and a mandatory mid-term review conducted under QMV - i.e. member states would lose their vetoes. 

So how did UK MEPs vote? 

For differing reasons, the Conservatives, Labour and UKIP all voted against the resolution. The Tories and Labour accepted the spending limits agreed by member states while UKIP rejected them on the basis they are still too high. However, Lib Dem MEPs followed the ALDE whip and voted in favour of the resolution:


In their defence, they claimed that:

"Liberal Democrat MEPs today supported the size of the EU’s multi-annual financial framework deal reached by Member States last month. They also supported moves to renegotiate the shape of the budget to make it more flexible and focused on areas that will bring jobs and growth to the UK, such as investments in R&D, innovation and infrastructure."

They have a point. Increasing spending on R&D is laudable (we've also made this point repeatedly) and more flexibility to move cash around within the budget is clearly desirable. However, while Lib Dem MEPs may accept the size of the budget, it is slightly disingenuous to claim that they actively supported it because the motion did not explicitly state this, unlike a separate motion put forward by the ECR group. The EP's position on the size of the budget was left intentionally vague so that the motion could gain the support of a majority of MEPs, ranging from the centre-right EPP to the Green and far-left groups.

The motion also included calls for direct EU taxes and scrapping the UK rebate, despite Nick Clegg insisting that the coalition would "protect the British rebate in full". If Lib Dem MEPs agree then surely abstention would have been a better option, or alternatively tabling their own amendment. With UK public opinion (and Westminster) overwhelmingly united in favour of the budget cut prioritising internal ALDE politics could backfire on them.

Fascinatingly, if successful, the demand for a mid-term revision of the MFF under QMV could trigger a referendum. The UK's European Union Act of 2011 contains a 'referendum lock' if certain areas of policy move from unanimity to QMV. This includes Article 312(2) TFEU, i.e. the passerelle or 'ratchet clause' - which is explicitly referenced in the motion.

While we don't expect member states to agree to the revision, we wonder if Lib Dem MEPs were aware of the possible implications of their vote?

Is the Netherlands heading for a referendum on Europe?

In 2005, Dutch voters rejected the European Constitution

A Dutch citizens' campaign to make it mandatory to hold a referendum on any new transfer of powers to the EU - reminiscent of the UK's referendum lock - has mustered 40,000 signatures, the threshold needed to force Dutch MP's to debate the issue and decide whether they agree with the proposal or not.

A "Parliamentary Commission" still needs to decide whether the initiative meets the conditions for triggering a parliamentary debate. Even if it does, only the Socialist Party, Geert Wilders' populist Party for Freedom and a few smaller parties support the idea - so there's no majority for it in the Dutch parliament. Last week, the centre-right VVD - which governs alongside the Labour Party -  labelled the initiative "unhelpful".

Is this the end of it then? Not quite. The next threshold is 300,000 signatures - which could trigger a non-binding referendum, subject to a new law which still needs to be adopted by the Dutch Senate. The campaigners are already looking ahead to that. There are lots of hurdles to actually get to the stage where a non-binding referendum on whether to adopt a "referendum lock" can be held - let alone adopted - but there's definitely something stirring underneath the surface.

Diederik Samsom, the leader of the Labour Party, said last weekend that changes to EU treaties should indeed require referenda (which is why the Dutch government wants to avoid such changes for now). According to a new poll, 64% of Dutch voters want a referendum on any new transfers of power to the EU (not surprising). However, more surprisingly, 65% of voters actually oppose such transfers of power altogether. With this in mind, gaining 300,000 signatures in a country with almost 17 million citizens does not seem impossible.

As the Dutch government argued in its "State of the EU" report, "The EU's democratic deficit is [the Union's] Achilles heel." The concerns brewing under the surface in the Netherlands show that this shortcoming will need to be addressed sooner rather than later.

Do Ed Miliband and David Cameron actually agree on Europe?



An emerging cross-party consensus on EU reform?

On Europe, Labour doesn't exactly shy away from turning the debate into a discussion of "Tory splits". Ed Miliband had another go in Wednesday's PMQs, perhaps a vintage attack inspired by a folk memory of the advantage Labour gained from the Maastricht rebellions twenty years ago. He said: "When it comes to Europe, it is the same old Tories: a divided party, and a weak Prime Minister."

It has been less clear, though, what Labour would actually do differently - to put it mildly. In the past, Ed M has also attacked the Conservatives for endangering the single market and jobs. In one such attack:

"Can he confirm that what he actually proposed was to unpick the existing rules of Lady Thatcher’s Single European Act as regards the internal market? Given that those proposals would have changed 25 years of the single market, why did he make them in the final hours of the summit?"

But this morning on the BBC's Today Programme, behind the bluster, the big news is that he actually agrees with David Cameron (and a laterday Clegg) on more than anyone perhaps would like to admit: 

Miliband said he wanted "change Europe" to "better reflect our interests." Who could object to that? He also said:

“I think we are moving to a more flexible Europe, a more flexible EU. Why do I say that? Because we will have some countries in the euro, Britain’s not going to be joining the euro, won’t be joining the euro if I’m Prime Minister, and therefore by the nature of it, we’re going to have some countries that are in the euro and some countries that are out. That makes, what I would call, a more flexible European Union.

"It’s a more flexible European Union. That needs to be reformed urgently to work in Britain’s interests." 

This is almost exactly what Cameron says. Zero difference. But absolutely right. 

He also supports the Government's "referendum lock";

"Clearly there is legislation on the books which we don’t propose repealing, which says if there is a transfer of powers to the EU then there would be a referendum. If there is a transfer of powers, there’s legislation on the books that says there would be a referendum."

Like Cameron, he also thinks that the UK needs to repatriate powers:

"Other areas, let me give you other areas. Regional policy, the way that a national government can have an industrial policy. I think there are areas where Britain actually needs some powers back."

Reforming regional policy is a great area to target, so well done Ed. Bringing 'powers back' in order to have an "industrial policy" would, as he has accused the Tories of doing, clearly mean unpicking the single market - and is an open invitation to the French to let the state aid flow - so perhaps not the greatest idea. But let's not split hairs...
  

Disagreements? Well:

“The debate here is between essentially those who say reform Europe and the European Union to change it to work in our interests, and I fear the Prime Minister’s strategy which is leading us towards exit, which would cause real damage to our economy.”

"I think in some areas, and this is a difference from this government - I say, for example, the European Arrest Warrant, which is something where Europe cooperates with the European Union, that helps our country... "

But he is only able to cite one policy example - the EAW - where he takes a different view to the government. And even here, from the Government's point of view, the real question is reform of the EAW and the jurisdiction of the ECJ post 2014, and whether to opt back into this particular measure.

Leave aside the current shouting match - and look at the bigger picture of Britain's role in the world and Europe - and this a country far more united on the need for anew relationship within the EU than the politicians would dare to admit.

Referendum confusion: Is Cameron protecting Britain from British plans for a eurozone superstate?

The eurozone crisis alone is complicated enough. Add in UK domestic politics and calls for a referendum on EU membership, and this stuff becomes maddening.

Today's Europe coverage in the UK press was a wonderful cocktail of a euro Armageddon, EU-UK relations and a huge dose of British domestic politics.

The Telegraph reported that:

"The Prime Minister dismissed as 'nonsense' a suggestion from Angela Merkel, the German chancellor, that the European Union should eventually have a single national identity and described as 'nonsense' the idea of loyalty to a common European flag."

It also noted that Merkel said yesterday, “We need more Europe, a budget union, and we need a political union first and foremost”, which led the paper to proclaim that "David Cameron promises to 'protect' Britain from German plans for a eurozone superstate with common banking and political systems".

But is that really what's going on here? It's true that both Cameron and Osborne have floated the idea of "safeguards" if the eurozone presses ahead with a banking union and further integration. But here's the thing: Germany's default position remains strongly anti-fiscal burden sharing, meaning that Merkel's 'budget union' is still based on exporting German fiscal discipline to the eurozone-level by introducing stronger budget oversight and enforcement mechanisms - only then could some form of debt mutualisation be considered. A German-led superstate still seems years off - if it ever will be agreed (no matter how much other parts of the eurozone or markets might like to see it right now).

In contrast, David Cameron last month called for a bigger bailout fund, shared eurozone bonds and a more active monetary policy from the ECB - in other words, the eurozone quickly moving to "joint and several liabilities" with stronger states indefinitely underwriting weaker ones. That would really be a German-led super state.

So, who's plans are Cameron and Osborne really trying to 'safeguard' themselves against? Of course, Cameron is right to stay well clear and seek safeguards in return for nodding through treaty changes designed to achieve a fiscal or a banking union, for example for UK financial services. But this discussion leaves the impression that Cameron is actually seeking safeguards against his own plans for eurozone integration. Not necessarily a contradiction, but not a good starting point for future negotiations over EU treaty changes either.

There's also a second confusion: an EU referendum.

In response to questions about the impact on Britain of more eurozone integration, Osborne yesterday told the BBC Today Programme that:

“I think what the public are concerned about, the British people would be concerned about, would be if there was any transfer of power...A reshaped relationship with Europe would imply, would involve, a transfer of sovereignty or powers from the UK to Brussels.” 

In reality, Osborne merely re-stated what's in the 'referendum lock', i.e. a substantial transfer of powers to the EU will, by law, trigger a public vote. But the context is confusing. In all likelihood any eurozone focused treaty change would not legally and constitutionally impact the UK enough to trigger a referendum. Furthermore, the government's talk of safeguards suggests that, if none are present, the UK would veto any treaty change before it actually gets to a referendum. So a referendum still looks unlikely, at least on the back of the eurozone crisis.

Osborne and Cameron are in an unenviable position - the eurozone crisis threatens to send Britain into a deeper recession, and remains a fundamental threat not only to the UK economy but also now to the Conservatives' 2015 election prospects. Tory backbenchers and UKIP are both breathing down the necks of the Conservative leadership over an EU referendum. All factors considered, Osborne and Cameron are doing a decent job balancing all these interests.

At the same time though, as we hint at in today's Telegraph, the UK government could end up in a rather strange position by sending all these political hares running at the same time. Is it going to veto the same Treaty changes (to establish a fiscal / banking union) that it is now effectively calling for? If it's deemed that these treaty changes de facto transfer powers away from the UK - i.e. by shifting the institutional balance of power towards the eurozone at the UK's expense - will it then also call a referendum on those treaty changes? What would the question be?

This may all work out both in the polls at home and in talks in Europe. But given the unrealistic expectations it raises - and how very difficult it will be to square all these various factors - it may well come back to haunt the Tory leadership, at home as well as abroad.

And the question would be....?

This week has seen the mandatory flare-up over the question of an EU referendum, following a remark by Ian Duncan Smith that any major EU Treaty would need to go to a referendum in Britain. For the Coalition it was most unfortunate that Nick Clegg, on the same day, was seen to say the opposite. Only thing was of course that he didn’t quite do that.

Both were actually expressing merely what was in the EU Act or referendum lock – and government policy - though IDS clearly failed to qualify his remarks. That is, any major new Treaty that has an impact on the UK will be subject to a referendum. There’s a lot one can say about the Treaty changes that Sarkozy and Merkel are pushing for, but one thing is for certain: they won’t have an impact on the UK in the sense that new powers will flow from London to Brussels, in contrast to what happened under the Lisbon Treaty or treaties before it. It merely creates a new set of arrangements for the eurozone.

Now, before you start to jump up and down, hear us out. The Treaty changes in combination with the ongoing eurozone crisis, do have an impact on Britain’s position in Europe in that they will create a more tightly knit eurozone bloc, to which Britain’s interests could become secondary. It’s this point that should and does concern most Tory backbenchers - very few of them are actually actively calling for a referendum at this point. And think about it: what would the question be? Something like:

"Do you think that the UK should accept EU Treaty changes which would allow the eurozone to integrate further and introduce measures to enhance budget discipline, which will not impact legally on Britain in the sense that new powers will be transferred from the UK to Brussels, but which could potentially lead to the eurozone voting as a caucus to the detriment of UK influence in Europe?" Yes/No

Hardly credible. Instead, the referendum would, in effect, be on membership of the EU (as it effectively asks voters to consider the current structure and direction of the EU as nothing has changed legally or institutionally for the UK, albeit a very significant political change). Option 2 would be to attach specific demands on EU reform and re-negotiation. The latter option could involve, say, the UK Government putting in a series of demands for repatriation or for vetoes to be restored. Subject to a successful conclusion of the negotiations involving those demands, the package, including the new budget rules for the eurozone, would be put to the British people in a validating referendum. It wouldn't exactly be a swift process but, minus all the complications involved in lengthy negotiations over Treaty changes at a time when the eurozone is on its knees, it could generate the kind of EU that the UK wants.

Now, there are a whole range of reasons why people might want to support one of those two paths - including the fact that people are understandably fed up about not having had a say on Europe for so long - but we need to be honest about what the consequences and political implications are. Either the exit door, or fundamental re-negotiations - that's probably what a lot of people want - but it wouldn't merely be a vote on the Treaty change per se. But for all the shouting in the press over a referendum over the last few days, it's absolutely amazing that no one has bothered to ask the question, what should the referendum actually be on.

This is not to say that the UK Government should not ask for concessions in Europe and start to embark on a reform programme aimed at reversing the flow of powers - we've been arguing that case for years. But if Britain wants to turn the EU into a 'network rather than a bloc' as Cameron reiterated in the Times today (which is the right vision), it needs, collectively, to be a bit smarter and think a bit deeper about the way forward.

* Update 1.16pm: Apparently, both London Mayor Boris Johnson and Northern Ireland Secretary Owen Paterson have now called for a referendum on Treaty changes involving all 27 member states - this is clearly becoming increasingly difficult for Cameron to manage. As ever, the nature of the referendum in question remains unclear, which is also what makes the issue so hard to manage...

House of Lords isn't getting with the programme

Almost entirely unnoticed by the UK media (with the exception of the Guardian), the House of Lords is doing its best to rip the heart out of the Government's EU Bill and accompanying "referendum lock". The Government last night suffered its third and fourth defeats on the Bill in a week, with peers voting by 242 to 209, to modify the Bill's "sovereignty clause" and by 209 to 203 to introduce a "sunset clause", which would see the entire Bill lapse at the end of this Parliament.

We have always felt the sovereignty clause the less important aspect of the Bill compared with the referendum lock but the latter, designed to give Parliament and voters a say over any significant future transfers of power to Brussels, has now been attacked and severely mauled by peers.

On Monday, peers voted to restrict the issues on which referendums should be held to only three: joining the euro, the creation of a "single, integrated military force", and changes to border control. This would leave the public without a say over several important issues such as whether a future UK Government could sign up to the creation of a new European Public Prosecutor or give up arguably the UK's most important veto of all: it's right to veto the multi-annual EU budget.

And, in the words of Foreign Office Minister Lord Howell, these amendments completely "undermine the direct and frank and honest commitment that we wish to make to the British people...I really would suggest that the public can be trusted to determine what is in their own interest."

As we've noted before, there is a certain irony in the fact that it is an unelected body, the House of Lords, which is displaying such great suspicion and hostility to giving people a greater say over their country’s relationship with the EU - and peers have given us some unintentionally hilarious quotes during the often bizarre debates on the Bill (we'll give you a few samples shortly). But the fact that it is being allowed to do so completely under the political radar is probably even more worrying.

A bizarre evening in the House of Lords

In case you missed it (and chances are that you did), last night's debate in the Lords on the Government's proposed EU Bill and 'referendum lock' was a bizarre affair, with many of the peers literally being all over the place. For a while there, it reminded us of some of the debates we've come across in the European Parliament - in many cases, what was said didn't actually correspond to anything taking place in the real world, nor any shade of public opinion.

We have looked at the 'referendum lock', which we're broadly in support of, on several occasions and argued that it would have been a much better 'lock' if it had incorporated the transfer of crime, justice and immigration laws - the Coalition has said it will continue to make its decisions to 'opt in' to these new laws on a case-by-case basis (and it continues to do so in roughly two-thirds of the cases it has the opportunity), rather than via a formal mechanism that could give MPs and the electorate some control over these transfers of power.

But back to the debate. A sign that something is broadly hitting the right note is when it is attacked from both sides. The Bill has been attacked for both preventing any future EU integration and as a sell-out by those who feel it won't stop the transfer of powers to Brussels (many of these people's real problem with the 'referendum lock' is that it doesn't roll back the existing transfers of power, which it was never designed to do) . Now, surely, both cannot be right.

Former Tory Minister and Conservative peer Lord Deben was seemingly having a particularly bad day, suggesting that the Government was pandering to "head-bangers". He added that he was "ashamed" of the Government's plans to hold referendums on whether to approve new EU treaties or major changes to existing ones and promised to vote against the legislation "again and again and again" unless changes were made.

The irony of an unelected peer being "ashamed" to consult the British people on major transfers of power to the EU (including the unelected Commission and unelected ECJ) - seems to have been lost on the noble Lord Deben. This is the full quote:

I do not believe in referenda in any circumstances. They are wholly unsuitable in a parliamentary democracy; they are a foreign invention used by people for ulterior motives; and they have never been part of the sort of society in which we live. I am ashamed that my Government have brought this forward.

Er, out of touch? The argument that the Bill would lead to referenda being held on every minutiae of EU policy seems to have gained credence amongst the peers discussing it yesterday. The only problem is, this argument is absolute nonsense, which anyone who has followed just a bit of EU politics over recent years would realise.

The Bill only covers transfers of competence under a new treaty or through changing the existing treaties - some of the major the "passerelle" clauses will also trigger a referendum. But there are a lot of stuff that won't trigger a public vote, because of what the EU already can do within its existing legal framework.

To get an idea of the kind of action that the EU can take without touching the Treaties, take the creation of the eurozone's €60bn temporary bailout fund, the EFSM. The hugely controversial decision to reinterpret EU law, through a qualified majority vote, and ignore the existing "no bail-out" clauses in the Treaties did not require a treaty change and therefore wouldn't have been caught by the lock. Or take the creation of three new EU financial supervisors, with binding powers over national authorities - again, that decision was taken by a qualified majority vote. A Treaty change wasn't even on the cards.

Rather than trading in hyperbole, Peers should focus on the meat of the Bill and seek to improve it, so that some trust can be restored in politics. Realising that European and British politics have moved on since the 70s/80s/90s (take your pick) would be a good place to start.

Incidentally, if ever you thought that the Lords were more mature than their counterparts in the Commons and less susceptible to ‘Punch and Judy’ knockabout, check out these comments from Lord Kinnock (whose family we’d point out earned a tidy £10m at taxpayers' expense during and after its stint in Brussels) directed at UKIP peer Lord Pearson:

My Lords, when the noble Lord, Lord Pearson of Rannoch, says that he wants to stick to his guns, I am inclined to hope that he goes very near to the muzzle of those guns-indeed, just in front-because that would be a suitable location.

Now that’s not very nice, is it Neil?

Is the Miliband amendment a trap?

The EU Bill's referendum lock is today coming before Parliament, with its different parts debated and voted on between today and Wednesday (see here, here, here, here, here, here and here).

At the eleventh hour, Labour leader Ed Miliband has tabled an amendment that would effectively remove the opportunity for a judicial review of any decision taken by Ministers and Parliament, amid concerns that the power of Parliament might in future be weakened at the hands of judges.

We can certainly see the appeal of this amendment from MPs' point of view, as it appears to strengthen Parliament. However, the bigger risk is that it - for all practical purposes - simultaneously waters down the referendum lock. MPs should therefore think twice before supporting this amendment.

For what it's worth, here's our take:

- Ed Miliband’s amendments to the EU Bill centre on the creation of an “EU referendum committee”.

- This Committee of 19 members would be comprised of MPs and Lords (but not Ministers) who would make recommendations on whether to hold all referenda provided for in all the various sections of the Bill.

- The recommendations would be put to both Houses of Parliament for approval of the Committee’s decision on whether to hold a referendum or not.

- While the creation of an ‘independent panel of Parliamentarians’ to decide on referenda may sound appealing, the Committee’s recommendations would override the Bill’s clauses which would automatically provide for referenda on decisions identified in the Bill, which are the key safeguards against power being handed over from Westminster to Brussels. Only “significant transfers” as decided by the committee and voted on in Parliament would qualify.

- Therefore Labour’s amendments could well have the effect of raising the threshold for holding referenda on transferring powers to the EU.

- Should the government of the day hold the balance of power in the proposed “EU Referendum Committee”, there would be nothing stopping a new EU treaty or treaty change being pushed through Parliament by the government. This could see a repeat of what happened to the Lisbon Treaty, which, as we all remember, was pushed through Parliament, without a public vote, despite the three major parties pledging a referendum on the treaty.

Update on the EU Bill - the Government's response to JHA opt ins

Earlier today, the Government released a statement setting out what it intends to do on the Justice and Home Affairs 'opt-ins' and the crucial 2014 choice between more or less EU control (see here, here, here and here for more from us on this).

On the 'opt-ins' the Government seems determined not to include any language in the actual EU Bill that would require it to get Parliamentary approval before it can opt in to a new EU law in crime, policing and immigration. Instead, it says that this should be addressed separately with the details to be decided at a later stage. Crucially, only the proposals generating a "particularly strong" interest could, possibly, be put to Parliament. In the Government's words:

in circumstances where there is particularly strong Parliamentary interest in the Government’s decision on whether or not to opt in to such a measure, the Government expresses its willingness to set aside Government time for a debate in both Houses on the basis of a motion on the Government’s recommended approach on the opt-in.

From the looks of it, this is not a strong enough safeguard. The big question is who decides what counts as "particularly strong" interest. We remain convinced that in order to avoid situations where future EU proposals in Justice and Home Affairs are debated at the convenience of the Government (which is the case at the moment), all opt ins should be subject to Parliamentary approval (there are pragmatic ways to deal with minor proposals, without throwing the baby out with the bathwater).

On the crucial 2014 choice, the Government clearly commits to putting this to a vote in both Houses. This is encouraging, though again, they should put that into writing in the EU Bill, so that it would be beyond doubt. A political agreement/commitment can be altered, which we all know too well when it comes to EU matters. The statement reads:

Parliament should have the right to give its view on a decision of such importance. The Government therefore commits to a vote in both Houses of Parliament before it makes a formal decision on whether it wishes to opt-out. The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees and a further announcement will be made in due course.

In other words, there's much to play for here. Are MPs paying attention?

More on the referendum lock

Some more from us on the referendum lock...

On Conservative Home, Open Europe chairman Lord Leach argues in favour of tweaking the EU Bill to strengthen democratic controls over the key areas of EU law that we've highlighted.

We also have a piece on the Spectator Coffee House blog.

Just one quick additional thought: the "more or less EU" choice that the Coalition will face in 2014 potentially involves some 100 or more EU laws and measures. The Government must decide to either accept or reject these en bloc. 100 laws! Imagine if the government had to decide in one go whether to adopt 100 domestic laws, regulations and measures. And if we then were told that this was not going to be debated in Parliament...?

You can see why this choice matters and the EU Bill needs to be amended to allow for this to go through Parliament.

When will this register in Westminster?

Which MPs will stand up and be counted on the EU referendum lock?

The Government's EU Bill returns to Parliament next week, with MPs considering amendments to the 'referendum lock'.

At the moment there is no democratic control over which EU crime, justice and immigration laws apply to the UK – neither MPs nor the electorate have a say over these decisions, only the Government. With a new briefing published today, we have stepped up our campaign to see the Bill amended to give Parliament, and in some cases voters, a say over whether Ministers sign up to these laws.

The crux of the matter is that next week MPs have the chance to give themselves increased power over the Government, allowing them to debate and approve these hugely important EU laws that will have an impact on their voters.

And there is another hugely significant issue here.

Before 2014, the Government has to decide whether existing EU crime and policing laws (those introduced before the Lisbon Treaty came into force late 2009) continue to apply to the UK. If they continue to apply they fall under the full jurisdiction of EU judges at the ECJ.

This is a massive 'more or less EU' decision that should not be left entirely up to the Government, which it would be under the current Bill. This should be decided by the people or, failing that, Parliament.

Do MPs really want to explain to their constituents that they passed up on the opportunity to have a vote on EU crime or police laws such as the European Arrest Warrant agreed in 2002, which has seen numerous Britons extradited to other European countries on spurious charges?

These are laws that have a direct, and sometimes costly, impact on people's lives - this is no time for MPs to duck the question.

How should MPs vote on the EU bill today?

MPs will today vote on the first part of the EU Bill - the so-called sovereignty clause, which stipulates that EU law exists only by virtue of an Act of Parliament. Some Tory MPs have opposed this clause on grounds that the explanatory notes of the Bill states that it reinforces the “common law principle” that EU law takes effect through the will of Parliament – which implies that judges could at some point take it away (since common law is effectively decided by judges).

As we've noted in previous posts, the clause itself, however, clarifies - and arguably strengthens - the notion that Parliament holds sovereignty over EU law. If allowed to stand alone, this can be no bad thing. So much of the fuss is in fact about the explanatory note, which can easily be changed (MPs may of course feel that the Government should do a lot more to address the current balance of power between the EU and UK - and they would be right - but let's take one battle at a time).

We now hear that Europe Minister David Lidington, sensibly, has written to backbench MPs saying that the Government will change the wording of the explanatory note to remove the confusing reference to 'common law'. There's therefore little reason to be nervous about the sovereignty clause.

With this change out of the way, MPs should now focus all their efforts on making the referendum lock - the second part of the Bill (to be discussed tonight, if there's time, and in more depth in a week or two) as strong as possible. As we've argued before, a strong referendum lock could substantially strengthen day-to-day control Parliamentary over EU laws.

Read more from us here and here.

How important is Clause 18?

Is Cameron facing defeat over the EU Bill tomorrow? Some have flagged up that prospect though we suspect the Bill will see it through tomorrow's debate in the Commons unscathed (backbench Tory MPs have differing priorities, Labour MPs are a bit all over the place and Lib Dems are not flip-flopping for a change - you work out the odds).

The so-called ‘sovereignty clause’ within the Government’s EU Bill is currently the subject of some criticism and debate, and this is the part that will come up for discussion in Parliament tomorrow (the rest of the Bill will be left for the following week or later).

Some important questions have been raised about the sovereignty clause but, arguably, they relate more to domestic concerns about the constitutional role of Parliament than the UK's relationship with the EU (though a link clearly exists). Irrespective of the merits of arguments on either side, the sovereignty clause should not be confused with the 'referendum lock' (which the vast majority of the Bill is concerned with) that seeks to identify areas where EU power can be extended and introduce some national controls on them.

These are two discussions that should have always remained separate.

The Government, and William Hague specifically, argues that Clause 18 of the Bill “confirms and affirms the position that EU law in this country is only recognised by virtue of the authority of acts of Parliament.” The Government says that it is attempting to “address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decision of the courts”.

But some backbench Tory MPs have noted that the Government’s assertion, in the explanatory notes, that the Bill reinforces the “common law principle that EU law takes effect in the UK through the will of Parliament and by virtue of an Act of Parliament” contradicts this very aim. As Bernard Jenkin MP argued yesterday, “The common law is judge-made law. The judges are its authors and its guardians. They may change it whenever they see fit.”

The argument goes like this: by legally rooting Parliamentary sovereignty in common law, the Government would in fact be inviting judges to become more involved, leading to the logical extension that, if Parliament is sovereign because of a decision of the courts, the courts can just as easily change their minds. As Jenkin notes, Parliament is sovereign because Parliament is sovereign. This is the principle of the UK’s constitutional settlement.

A valid question is also whether Clause 18 was necessary at all? Did anyone really dispute whether Parliament could choose to repeal the 1972 European Communities Act at any point in time should it want to? (the Commons EU Scrutiny Committee's report and evidence on the topic is pretty interesting if anyone should have the appetite to trawl through it).

It is no accident that it is the EU that has sparked this debate. The lack of a formal written constitution leaves the UK hugely exposed to the EU’s centralising instincts.

But confusing this discussion with the other, in our view, more important aspect of the Bill, the referendum lock (we wouldn't rule out that the Government may have done this intentionally) runs the risk that MPs do not focus enough of their energies on closing the loopholes in the Bill that deal with transfers of power to the EU. We have identified several relating to justice and home affairs but there are also other areas where the Bill needs tightening up, and Tory MPs have done a good job in tabling sensible amendments. These amendments would strengthen Parliament's de facto powers the second the Bill came into force. That would be a step forward for parliamentary democracy, and a very practical one at that.

Constitutional debates about the role of Parliament are of course important but they will also no doubt roll on. However, this may be the only chance to get the practical measures within the Bill right and in our view they should therefore be the primary focus for MPs.

That's an argument in favour, not against Mr. Foreign Secretary

Tuesday night saw the Coalition government's EU Bill sailing through a second reading in Parliament, without a vote. In truth, it wasn't all plain sailing as several MPs - from across the aisle - fired at the Bill with various degrees of ferociousness. "Legislative PR", "flawed", "smoke and mirrors" and "missing the point" were some of the comments.

Valid points were raised - though as we've argued before, the referendum lock is a meaningful measure that will make it more difficult for ministers to transfer power to Brussels in future (true, it doesn't deal with the mission creep of the ECJ, or with cases when EU law is blatantly broken i.e. the eurozone bail-out, or with the existing balance of power between the UK and the EU, which many feel is unacceptable).

The Foreign Secretary did disappoint on one point, however. Conservative MP James Clappison asked whether the Foreign Secretary would give "serious consideration" to the question of requiring a vote in Parliament before the Government opts in to new EU laws in the Justice and Home Affairs area - which Open Europe has argued strongly in favour of, as it would in effect roll back some of the powers given away to EU judges and MEPs under the Lisbon Treaty.

However, the Foreign Secretary answered that the decision to opt-in belongs to a "different category" and argued that

given the strict time limits which apply to the UK's decision to exercise an opt-in - which is within three months of the receipt of a proposal - and the fact that there are 30 to 40 proposals per annum, it is not possible to place a primary legislative lock or parliamentary resolution requirement on the exercise of the opt in.

This isn't a strong justification at all for leaving out such a provision. William Hague seems to argue that ‘there is so much being agreed in the EU and as a government we need time to consider it all’. But this isn't an argument against giving Parliament ex ante control over this area - on the contrary, it's a strong argument in favour of it! Precisely because that is the case, we need more democratic control.

Also, a resolution of approval is not a time-consuming measure in Parliament. Motions can be agreed after a relatively short, single debate. In fact, the Irish Parliament must pass a resolution before its Government can opt in to anything, so it seems strange that this wouldn't be possible in the UK.

What puzzles us is why not more MPs aren't passionately pushing this line?

Parliament needs to get a grip on EU justice and home affairs laws

At a time when MEPs are trying to grasp every possible opportunity to extend their own powers (and give themselves more cash), it’s about time that national parliamentarians showed some assertiveness over EU decision-making – or they risk becoming even more marginalised in EU affairs. The Lisbon Treaty shifted substantial control away from national parliaments to MEPs (hardly credible protectors of democracy in Europe), the Commission and EU judges. As a result, the UK Parliament was weakened (and the Lisbon Treaty’s yellow card procedure did not make up for this, as now is becoming increasingly clear).

But MPs now have a chance to claim some of these powers back.

How? In a new briefing published today, we argue that by a series of simple amendments to the Government's proposed EU 'referendum lock', the UK Parliament could turn itself into one of the most powerful chambers in Europe, insofar as EU policy is concerned. These amendments would require Ministers to seek the approval of Parliament before signing up to any EU laws in justice and home affairs. If the answer is No, the government can’t opt in.

This may seem like a boring detail, but on the contrary – it’s absolutely vital.

For the first time, this would give Parliament, and voters, a real democratic check on the extension of the EU's powers – although it would still fall far short of repairing all the damage caused by the erosion of democracy through successive EU Treaties.

Policing, crime, immigration and asylum are issues are hugely politically sensitive and any decisions to sign up to new EU laws in these areas need to be thoroughly debated and democratically accountable. This should be Parliament's job. As the German Constitutional Court argued in its ruling on the Lisbon Treaty:

Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and criminal procedure, the corresponding basic powers in the treaties must be interpreted strictly - on no account extensively -, and their use requires particular justification.

As it currently stands, the Government's proposed Bill, although a significant step forward, fails to address the day-to-day transfer of crime, policing and immigration powers from the UK to the EU. So any decision to opt in to a proposal like the controversial European Arrest Warrant will not be covered by the lock.

And the thing is, justice and home affairs is the area in which the EU gains the most new powers under the Lisbon Treaty. The EU now has two Commissioners rather than one, 17 databases and a rapidly expanding budget to fulfil its ambitions here.

Most importantly, European judges will have the final say over any law that the UK Government decides to opt in to. By definition, this is a transfer of powers.

In other words, it's a zero-sum game: every new justice or policing law the Government signs up to gives more power to the EU institutions at the expense of MPs, Parliament and the British courts. This is a big decision, which currently rests solely on Government Ministers' discretion.

The EU's growing ambitions in justice and home affairs deserve Parliament's undivided attention. It is perfectly reasonable for MPs to demand the power to vote on these crucial decisions that the Government makes in the name of their constituents. In fact, it would be a dereliction of duty not to.

Power to the Parliament

Open Europe has just hosted a debate on the Coalition Government's proposed 'referendum lock' with Europe Minister David Lidington. A write-up and recording of the event will be put on our events page shortly. But in the meantime, two thoughts:

A point raised - echoing what was argued in the Economist's Bagehot column last week - is that the referendum lock amounts to an effective "UK Veto Bill" over new EU treaties. This, so the reasoning goes, is de facto locking in a two-speed Europe, with Britain in the 'slow lane', as it would never be able to sign up to new Treaties under the Bill (assuming that any referendum on a new EU Treaty in the UK would result in a No vote).

This logic contains some truth but is also dated. In today's more fluid, interesting but also more perilous, Europe what matters is one thing: the health of your economy.

Europe is already a multi-speed beast, fuelled by the ongoing eurozone crisis. The slow lane is reserved for the countries which don't have enough cash to carry them over until tomorrow - not those which choose to stay out of the European Public Prosecutor (for example). Which lane the UK occupies in the future will depend on its economic fundamentals - not the referendum lock.

Secondly, some commentators really should read the actual Bill before ranting. Philip Stephens, who every week recycles columns in the FT, for instance. Today he argues,

It is likewise curious that a Tory party so wedded to parliamentary sovereignty should be so keen to subordinate its authority to a plebiscite. Margaret Thatcher got it right when she criticised the last popular vote on Europe in 1975. The referendum, the then Tory leader observed, sacrificed parliamentary sovereignty to political expediency.

This is wide of the mark. In fact, the biggest winner from this Bill is not the British people - a referendum is unlikely to be called for a long-time (which Stephens also acknowledges) - but the UK Parliament. Every decision outlined in the referendum lock will ultimately rest with Parliament, including whether a power shift is significant enough to warrant a referendum under the so-called significance criteria in the Bill.

In this sense, the proposal is actually more of a Parliamentary lock, than a referendum lock. What the Bill will do is restore some control to Parliament - which has been handed over to the government (and then onto MEPs, EU judges and eurocrats) through various EU treaties.

Now it's up to Parliament to decide what to do with these powers.

Ps. Stephens also argues that the EU Bill is "a piece of legislation so dense and unintelligible that it makes the Maastricht treaty seem like an easy read." He clearly has limited experience with EU treaties and texts. In fact, the EU Bill is a Stieg Larsson novel compared to much coming out of Brussels, such as the unconsolidated version of the Lisbon Treaty for example (which we were the first to decodify).