Finessing the coalition’s EU referendum lock

The Coalition Government’s proposal for a 'referendum lock' on future transfers of powers to the EU has already been branded “worthless” by some Tory backbenchers .

It’s easy to share their frustration at the Coalition’s lack of interest in EU reform so far. After all, the Government has chosen to opt in to the European Investigation Order; signed up for new EU financial supervisors; and chosen not to challenge the UK’s participation in the eurozone bailout (making British taxpayers potentially liable for up to £8 billion in loans to eurozone governments).

However, the referendum lock is still significant. New crises, situations and politicians’ egos will always drive the need for another treaty and further integration. For example, German Chancellor Angela Merkel has repeatedly called for a new treaty to fix the eurozone, likely to spill over to Britain in one way or another. The threat of the UK’s referendum lock could be an important strategic asset to argue that a repatriation of powers is the only way the British electorate would agree to the changes. If negotiated intelligently, the net effect would be more powers for Westminster and less for Brussels.  

The coalition’s pledge is also an important victory of principle over the EU elite, which turned its back on the people after the French, Dutch and Irish ‘No’ votes to the EU Constitution.

However, the temptation to slip into the habits of the Labour Government, simply calling transfers of powers something else, is obvious. 47 percent of Britons now want out of the EU altogether, and any more deception regarding the loss of sovereignty to the EU could see popular opinion blow up.

For example, under the Lisbon Treaty, the Coalition government needs to decide whether it wants to opt in to a series of measures or amendments to existing EU legislation in Justice and Home Affairs. Any new legislation or amendments to existing rules it opts into will fall under the jurisdiction of the European Court of Justice. By any definition, this involves a transfer of powers, as EU judges would have the final say over those laws.

The ‘referendum lock’ therefore needs to be strong enough to withstand any attempts to bury difficult questions like this, including:

-- The decision on what constitutes a ‘transfer of powers’ cannot be left to the discretion of ministers or ministers’ legal advisors. It must be independent.

  -- Absolutely key is that any decision to opt into measures in Justice and Home Affairs be subject to the referendum lock, or at the very least, an Act of Parliament. This would mean that the Coalition cannot opt in to, say, an amendment to the European Arrest Warrant, giving the ECJ the final say over this law, unless the people, or the Parliament, agree (if they don’t agree, the UK would automatically be required to opt out of the EAW altogether by 2014, which would effectively repatriate powers back to the UK).

-- Every use of the Lisbon Treaty’s ratchet clauses or other articles, which involve handing over control to Brussels - subject to a strict definition (for example abolishing vetoes in an existing area of competencies or misuse of Treaty articles to extend the EU’s powers) - should be covered by the referendum lock or an Act of Parliament. This would neutralise the “self-amendment” provisions in the Lisbon Treaty.

This is not an ideal solution. But, still, if it fulfils these three points the referendum lock would represent a far better attempt at putting a halt to ‘ever closer union’ than anything else proposed by a British government in a long time.

Mats Persson is director of Open Europe