David Lidington MP: Why every Conservative can be proud of the European Union Bill

David Lidington is Minister for Europe.

This week the new European Union Bill will go through intense scrutiny by MPs as its details are debated, and rightly so. The EU bill is the most radical piece of legislation on how we handle the EU since Britain joined the then EEC in 1973.

That organisation has changed a very great deal since then. In the past twenty years we have had treaty after treaty: Maastricht, Amsterdam, Nice, the failed EU Constitution and its substantially similar successor Lisbon. These treaties have given the EU such a wide-ranging role that it can no longer be right that the EU’s powers should grow still further without the explicit permission of the British people.

The way the EU has developed has not been wholly without democratic legitimacy: with the crucial exception of the EU Constitution and Lisbon, it is true that all of those treaties had their place in the general election manifestos of the party that went on to win the general election. That great exception proves, however, that we can no longer simply trust governments to let voters in on the most important decisions made in their name in the EU: decisions on where power ultimately lies.

The anger felt by so many on how Labour MPs, with a few honourable exceptions, denied the British people a referendum on the Lisbon Treaty will not disappear quickly. I dearly wish we could undo what Labour did. Unfortunately, that is no longer possible now that the Lisbon Treaty is in force. But what we can do is to stop that shameful episode ever happening again. That is what this Bill does.

When William Hague and I first began our work on this Bill we were given a choice on how to set up the referendum lock. It could be a simple piece of legislation setting out a broad test on whether a treaty change transferred power or we could go into the nuts and bolts of the Treaties and pick out individually each way power could be shifted from the UK to the EU. We chose the latter.

It must be admitted that while the result is legally elegant and comprehensive it does not make for light reading. The alternative, however, would have given too much wriggle room for a Government hoping to avoid a referendum and would have left too much open to interpretation by the courts.

So the Bill sets out in great detail the various ways powers might be handed from Britain to the EU by changing the EU’s Treaties – the EU’s basic rule book – and creates a legal requirement for a referendum before such a change can become law.

The Bill sets out binding requirements for a referendum on the removal of any of 44 national vetoes and any use of 12 decisions, including joining the euro, joining up to a European Public Prosecutor or giving up our border controls, as well as eight different ways of increasing the EU’s ‘competences’ – the technical EU term for a power in an area of policy – and the removal of any limitation on the EU’s exercise of power.

The Bill also gives Parliament more control over changes to the EU Treaties that, while important, do not amount to a transfer of power as well as the use of what is known as the EU’s flexibility clause: article 352. The Lisbon Treaty added extensive self-amending provisions to the EU Treaties. Vitally, those are also covered.

Some of those potential treaty changes are simple to capture in law: for instance, either you have a national veto or you do not. Others need to be subject to a broader test, for instance, whether a treaty change extends one of the EU’s existing competences. The Bill puts a double lock on a Government that wanted to ignore those tests.

First, like any other ministerial decision, any British citizen can take the Government to court if they think ministers are acting unlawfully. To make it as easy as possible for the courts to judge whether the Government is abiding by the terms of the bill we have made it a requirement that ministers must give a reasoned statement on any treaty change, saying how it matches up against the referendum tests. Second, an Act of Parliament will also be needed before any such treaty change can come into force.

It is true that, because under our constitution no Parliament can bind its successors, a future Parliament could repeal this law, but I do not think it likely. The political spirit of our age is, rightly, of power moving from the centre outwards. A future Parliament could revoke Scottish devolution or abolish the post of Mayor of London but it is almost unimaginable that any would: power given away is hard to take back. A Government that wanted to revoke rights given to voters and Parliament itself would pay a very high political price indeed.

The Bill is a complex piece of legislation; it is not surprising that one or two misunderstandings have arisen on how it works. One is that the decision on holding a referendum is subject to ministerial discretion. As I have explained above, that is not the case: the referendum tests are legally enforceable and Parliament also has the final say.

Another is that there is a wide-ranging significance test which will allow transfers of power to slip through the lock. There is a significance test, only applying in the narrowest circumstances, and there needs to be one.

As Martin Howe QC has powerfully argued on Conservative Home, we need to deny a future government any reason to claim that the Bill would mean referendums on absurdly small matters. If this Bill is going to stand the test of time we have to avoid discrediting the idea of referendums on EU treaty changes, and holding a national referendum on an issue of no great significance could do exactly that.

Most of the ways the EU might be given new powers to act will almost always be significant, such as giving the EU the power to make laws over a new area of policy or extending its remit. That is why I think it would be wrong to have any significance test on an issue like that.

But there are two specific kinds of legal change – creating new requirements or penalties – where I can think of ways that, in the future, the EU’s Treaties might change in a way that would not greatly matter and on which the average vote would not think it sensible to have a referendum.

Take one example – not one that anyone is proposing, but something of the kind that one day could happen. There is a European Maritime Safety Agency which advises national regulators in EU countries on the safety of ships and preventing pollution at sea. If there were a treaty change that allowed such agencies actually to tell national regulators what to do that would obviously be significant and there would have to be a referendum. But say the treaties were changed so that national regulators had to provide such an agency with statistics: I think such a change would not be significant and most voters would not understand why the provision of statistics should be a matter for a national referendum.

Of course, a question like that has to be subject to the fullest scrutiny by Parliament, which is why we are making any such treaty change subject to an act of Parliament. And, of course, people must be able to question a Government’s decision in the courts.

I want this Bill to be a law for the long term, one that becomes a natural part of our constitution. If we are achieve that we cannot end up with referendums that do not make sense to the British people.

As a proud Tory the only revolution I wholly approve of is the Bloodless and Glorious of 1688, so I have mixed feelings about the evidence given to Parliament by one academic constitutional expert that ‘the Bill has a whiff of revolution about it. It is a Boston Tea Party gesture against creeping integration’. As another has said, ‘if the Bill were enacted in its current form, there would simply be no comparison between the position of the UK and that of any other Member State (including Ireland, France and Denmark) so far as concerns the obligation to hold a referendum on EU matters’.

This Bill does not solve all of the EU’s many problems: its spendthrift ways or the fact that it interferes too much into the nooks and crannies of daily life. It needs to go hand in hand with active engagement with other EU countries to advance our national interest, promoting free trade and using our collective weight in the world more effectively. But it does massively strengthen our democracy, shifting power from ministers to Parliament and voters. It is a piece of legislation every Conservative can be proud of.