Opinion: EU Bill is bad Tory policy

The European Union Bill is a Tory policy. The Liberal Democrats went into the last election arguing for a referendum on whether the UK should stay in or leave the EU. Thankfully, having lost the election, we were not in a position to test public opinion on that one.

The Conservative party wanted a referendum on the Lisbon treaty in order to repatriate powers and to entrench national sovereignty. On losing the election they discovered that Lisbon was already in force and could not be undone. So their new tactic was to undermine the Lisbon settlement whenever opportunity arose, and it is this policy that they have imposed on the coalition government.

Lib Dem ministers, like Jeremy Browne, should not pretend that the Tory policy is akin to Lib Dem policy. It is not. Nor should Lib Dem ministers be complicit in arguing that the EU Bill is a good policy. It is not. It is, indeed, a very bad Tory policy.

The effect of the Bill will be to change forever, and for the worse, the terms of Britain’s membership of the European Union. One might be forgiven for wondering, after all the red lines and opt-outs of the Blair-Brown era, if Britain’s relationship with the EU could become even more semi-detached without becoming entirely detached. One is about to find out.

The Bill will impose referenda, in each case preceded by an act of parliament, on any major change in the EU treaties, on the use of the seven Lisbon passerelle clauses (which bring some necessary flexibility into decision-making procedures), and on UK participation (albeit unlikely) in any form of ‘enhanced cooperation’ among a group of integrationist minded states. The imposition of a referendum will be automatic apart from a small room for discretion left to ministers on minor issues. Paradoxically, the only treaty changes which will not trigger a referendum are those relating to EU enlargement – precisely the issue on which France and other states are insisting on having a referendum. Such British particularism only serves to fuel the suspicion widespread in EU circles that the UK wants to expand the size of the Union only in order to weaken it.

The Bill also contains a ‘declaratory’ sovereignty clause which recalls that the UK is a member of the EU, and thereby recognises the primacy of EU law, only by virtue of its original Act of Accession in 1972. It is this aspect of the legislation which has induced Byzantine legal pedantry in the Commons’ EU scrutiny committee, chaired by the arch-nationalist Bill Cash MP. He and his colleagues treat sovereignty like the crown jewels, in safe-keeping. While no witness to the enquiry has supported that approach, very few have been able to substantiate the government’s arguments for the inclusion of the sovereignty clause. Indeed, as the Commons has continued to work away at the Bill, it is becoming apparent that the legislation is crafted not to address any real legal mischief but merely as a sop to Tory party prejudice against Europe. Unfortunately for the government, the Bill has failed even in that objective: in the second reading vote on 7 December, Mr Cash and his close associates abstained.

There is a delicious irony in seeing those MPs most vexed by the ceding of parliamentary sovereignty to the EU institutions perfectly happy to dish it out via binding referenda into the arms of a hapless electorate. Likewise, these same MPs continue to insist on the common law principle that no parliament can bind its successor as they busy themselves with ensuring that referenda will be entrenched in Britain’s rickety constitution for all time. David Lidington, Minister for Europe, crowed that the Bill if enacted would be ‘enduring’ because the ‘political cost’ to any government which sought to repeal it would be too high. How right he is.

Labour is voting against the Bill for reasons which are not altogether clear. One hopes for some sharper criticism when the draft law reaches the House of Lords. The Bill is causing great alarm in the EU institutions, where fears are raised that it is in conflict with EU and international law. The UK has always tended to over-elaborate the transposition of EU directives into domestic law, but this Bill presages something a lot more damaging. Lisbon designates ten cases where EU decisions have to be ratified by national constitutional requirements. This Bill imposes many more unilaterally.

The government puts undue weight on the similarity between what it is trying to achieve in Britain and what other states are doing post-Lisbon. Yet no other state is dreaming of imposing a referendum on a passerelle clause or enhanced cooperation. Although the Bundestag has legislated to increase its own powers over important EU decisions, including some passerelle clauses, Germany has a constitution in which the checks and balances between government and parliament are comprehensively laid down in any case, and a Basic Law which commits the Federal Republic to advancing European integration.

The proposed changes in British law, on the other hand, are taken in isolation from a broader constitutional review in the UK. They are clearly intended, and will be interpreted by the UK courts as having been intended, to stop further European integration. British ministers will be hard pushed in Council to fulfil their legal duty to commit their state to legal acts, and EU law making risks being much delayed. The UK is making itself an untrustworthy negotiating partner, particularly in matters of treaty amendment which has been and still is such a key driver of European integration.

At home, referenda will unleash the forces of populist nationalism. Facile coalitions of nay-sayers will form to block Britain’s progress in Europe. Low turnouts in regular referenda on issues of mind-boggling complexity will further sour the British people’s already febrile relationship with the Westminster parliament and its political parties, as well as stirring up anti-European sentiment.

Nobody need delude themselves that an EU referendum in Britain can be won, at least for a generation. The blunt truth is that if this Bill becomes law no future EU treaty revision will be possible as long as the UK remains a full member state of the Union. The rest of the European Union is getting ready to move on without us.

Andrew Duff is Lib Dem MEP for the East of England and spokesman on constitutional affairs for the Alliance of Liberals and Democrats for Europe (ALDE). His most recent book is Making the Difference: Essays in Honour of Shirley Williams

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This entry was posted in Europe / International and News.


  • patrick murray 15th Dec '10 - 10:28am

    glad to see one of our meps sticking their necks out on this. i totally agree with andrew.

    i also see that some are making some noise about the eu trafficking directive now as well, as it has been finalised and there is a second chance for the gvt to sign up. i hope they will.

  • Why are you so afraid of referendums Andrew? Because the public are “hapless”, “facile” and “populist”. Ah, well in that case I suppose you’re right – we shouldn’t ask their permission about changes to complex things like the EU. We are the Labour Party after all. Oh, hold on, what’s that? We’re what? “Liberal Democrats” you say? Which means “being both liberal and democratic” you say? Oh, gosh. That’s awkward then…

  • I would be interested to learn why Mr Duff argues from the unquestioned stand point that our EU membership is beneficial – perhaps he or those who support this claim could enlighten me. I can recognise that the political class see it as beneficial because the opportunities to benefit financially from a mass of ‘non jobs’ are almost limitless.

    No mention of the fact that more than 80% wanted a referendum on the Lisbon Treaty or that more than two thirds did not want political union with the EU. Only a politician who does not believe democracy is at heart ‘the will of the people’ or one that wanted to ensure the people could have little or no say on the laws which they were to be bound by and thoroughly approved of virtual dictatorships could write such a piece. Also, unsurprisingly, no mention of the tax free £91,000 which the MEPs can now claim in expenses without any proof of expenditure.


    The piece does not recognise that out of the EU the savings would significantly reduce the cuts required here as a result of the austerity budget or that by genuinely offering a in/out referendum on our membership [as previously promised] all of the losses suffered through trebling the tuition fees would probably be recovered. Nor that the Union cannot function without the Euro and this is almost impossible with such diverse nation states.

    For your pleasure Mr Duff – if you were not in attendance.


  • Honestly, I’m not sure that a referendum on issues which are so distorted by the media as the EU is are even worth it – you’d just get a decision made from tabloid bleating rather than any real sense or logical argument every time. Ditto any issue which requires some deep specialist knowledge.

    Much as I like the idea of direct democracy it’s almost totally useless without an exceptionally well educated population and an unbiased media.

  • “Thankfully, having lost the election, we were not in a position to test public opinion on that one.”

    Yes I suppose using a democratic process to decide how to govern would be like expecting MP’s to keep promises made in election campaigns. Let’s not allow those pesky voters too much control they may even get a say in how the Country is run !

    You work for the people, you represent the people, don’t be too afraid to listen to the people..

    I am pro EU and am sick of it being the elephant in the boardroom of UK politics. Let’s have the referendum, let’s make the case and let’s let the people decide.

    Very few people vote in European Parliament elections perhaps we should cancel those too and just send our MEP’s based upon Westminster numbers.

  • @ DunKhan

    I think you will find that the electorates political education rapidly increases as the austerity measures bite. The government have the finest financial specialist experts galore, yet we are a bankrupt nation. The Swiss in contrast, who have Direct Democracy which allows the people stop the politicians creating liabilities for many generations ahead, have a nation in rude financial health.

  • Andrew writes, “The Liberal Democrats went into the last election arguing for a referendum on whether the UK should stay in or leave the EU. Thankfully, having lost the election, we were not in a position to test public opinion on that one.”

    I am a Liberal Democrat, and a pro-European one, but this attitude, which many Lib Dems and pro-Europeans have, which can essentially be summarised as – let’s not let the plebs have their say on Europe – is something I find highly offensive. Europe will never work if it is a project pursued without genuine popular or democratic input.

    I’d happily see progress on European cooperation slow right down if, in exchange, it was done, step by step, with the endorsement of Europeans.

  • How odd that Andrew talks about our 2010 manifesto but not our 2005 one. The one which promised a referendum on the Lisbon Treaty – a promise which Nick Clegg broke ,ensuring that the country was not allowed to vote on the Treaty, leading to the resignation of some of our front bench spokesmen.

    Perhaps like Clegg, Andrew beleieves that we should not have referenda on EU matters becuase they they would be influenced by ‘Facile coalitions of nay-sayers will form to block Britain’s progress in Europe’.
    What the artcile fails to recongise is that it is possible to be a very strong suporter of the EU – the Common Market as it was originally called but not of a Federal Europe, partuclalry one which the British voters would reject if they were ever given an opportunity to do so. Andrew wishes to ensure they never have the choice.

  • Agree with a lot of the above. The attitude that the public can’t be trusted as they would make the ‘wrong’ decision on Europe is a part of what causes people to be against further european integration.

    It doesn’t surprise me, but the only ‘delicious irony’ in this article is Mr Duff’s lack of awareness that he seems to be going around driving support away from a cause he supports through his lack of faith in the voting populace. Or ‘his employers’ if you will.

  • @John Roffey

    That EU membership is beneficial is quite clear if you look at the figures. Firstly, it costs very little on the scale of the UK economy – UKIP’s figures for the direct cost are gross rather than net and therefore exclude the rebate and EU development money that we receive. It’s also guilty of the sin of putting big-sounding numbers out of context – to put it in context, in 2007, the net cost of EU membership was around 1/8th to 1/7th of the cost of the interest on the national debt. As far as the treasury goes, it’s not a big expenditure.

    Secondly, and more importantly, over 60% of our international trade is with other EU countries, if we weren’t in the EU or EFTA (EEA + CH) we would have to pay duties on that, which would be crippling. This is without factoring in capital flight from companies that set up regional headquarters here with the intention of using it as access to the broader European market. In short – economic disaster.

    The usual response to this is to say “join the EEA” or to advocate the Swiss model. What isn’t said is that in the EEA you still adopt most of the legislation we adopt now, minus farms and fisheries, and that you don’t have an official of the national government and MEPs scrutinising, amending or vetoing any of this legislation as we do now. Given that eurosceptic rhetoric usually focuses on laws being “imposed on us by Brussels” or the idea of an EU democratic deficit it seems an odd thing for so many of them to advocate.

    The Swiss model is de facto the same as EEA membership but with every single point subject to individual ratification, producing a huge amount of red tape and waste as well as the potential for the immediate loss of access to European markets if and when something is not ratified. There’s a reason why the Swiss government spent most of the 90s and 00s stating that EU membership was an aim for it. So, long story short, I don’t see how on earth anything could be gained from leaving the EU, it just doesn’t stack up.

    I think that I’m going to have to call you out to prove your statement that people would be come more politically aware as austerity bites. That just sounds unfounded to me and my first instinct would be that they’d be more likely to become more reactionary and scared rather than more informed. If you can prove me wrong that would be great.

    I’m also going to have to call you out on the supposed link between direct democracy and economic strength – do you have anything to back this up? I’m just saying this because plenty of countries without direct democracy have weathered the crisis relatively well. For instance, Germany’s economic recovery this year is pretty comparable with that of Switzerland.


    Outside of Belgium and Luxembourg actual advocates of a federal Europe are very thin on the ground. You’re both creating a straw man with the idea of a federal Europe – which I highly doubt any significant politician in the UK (or indeed in most other EU countries) is pushing for.

    I’m not sure if you actually intended this, but to me your post implies a false dichotomy of everyone pro-Europe advocating either a reversal back to the common market of previous decades and a hypothetical federal Europe and there being no middle ground. The majority of politicians fall somewhere between these extremes so there clearly is one.

  • This (in particular) is completely contradictory and makes no sense Andrew:
    “The blunt truth is that if this Bill becomes law no future EU treaty revision will be possible as long as the UK remains a full member state of the Union. The rest of the European Union is getting ready to move on without us. ”

    Having no future EU treaty revision might not be a bad thing. They seem to come along more and more often and I can’t recall any that have taken powers from a European tier and moved them to a national, regional or local level of decision making.

    “British ministers will be hard pushed in Council to fulfil their legal duty to commit their state to legal acts, and EU law making risks being much delayed.”

    MInisters legal duties are those that are defined and granted by Parliament. I think it is open to Parliament to pass a piece of legislation which contravenes our treaty obligations. In any case, if ministers decision making powers are so constrained by their legal duties to not allow them to vote for things then the EU shouldn’t be bothering dragging all the ministers across Europe for a meeting.

  • John Roffey 15th Dec '10 - 7:00pm

    @ DunKhan

    The deficit with EU countries narrowed to £3.5 billion in October, compared with a deficit of £3.8 billion in September. Exports rose by £1.4 billion and imports rose by £1.1 billion.


    We would be better off finding new trading partner, the Commonwealth an obvious choice, rather than with a group of countries whose strengths are primarily the same as our own.

    Switzerland is one of the most stable economies in the world. Public debt 38.8% of GDP – UK 68.8% of GDP, compare and contrast:


    Employment of UK citizens in the EU compared to EU citizens in UK has a ratio of 1to 4 – if these workers were sent back the record number of young people unemployed would certainly fall.

    ‘The Office for National Statistics also reported that the number of 16 to 24-year-olds out of work increased by 28,000 to 943,000, one of the highest figures since records began in 1992, giving a jobless rate of 19.8%’:


    Also we would have no responsibility for the cost of supporting the Euro which is likely to cost many billions of pounds – a cost that could easily wipe out all the savings made by the austerity measures.

    The global corporations based here gobble up most of the business opportunities in the UK – if they were not here there would be many opportunities for British entrepreneurs to flourish – many of them are little more than over blown grocers.

  • To be honest,I find I wonder why the EU has as much support as it does, in a party known for its commitment to local government democracy. It is not as if the EU is famous for its support of local or democratic government.

  • @John Roffey: “The global corporations based here gobble up most of the business opportunities in the UK – if they were not here there would be many opportunities for British entrepreneurs to flourish – many of them are little more than over blown grocers.”

    Coming from the famous ‘nation of shopkeepers’, I’m not sure whether that is intended as an insult or a compliment. Some of this country’s most successful companies are “over blown grocers”

  • John Roffey 15th Dec '10 - 9:08pm

    @ Thomas

    The point I am making is that they do not offer any specialty which could not be found here already, apart from the discounts achieved through massive bulk buying. However, the savings made are mostly through buying from overseas sources which worsens our already stricken balance of trade and removes opportunities for UK suppliers. It is true they provide tax revenues, but this would be provided by their UK replacements – the difference is that the profit is likely to stay in the UK to be recycled to provide opportunities for more UK businesses not spent by multi billionaires on 160 foot yachts moored at Monaco and touring the celebrity playgrounds of the world – few in the UK!

  • @John Roffey: I’m not totally confident that Nigeria can replace Germany as a trading partner any time soon, or that Canada and Australia are going to give up their lucrative trading relationships with other nations. Nor do I have any belief in the idea that UK born companies will contribute more to our tax reserves; one only has to look at the example of Vodafone for that.

  • @ Thomas

    If we continue to trade with a adverse trading balance, all that will happen is there will be large funds of sterling sloshing around in foreign nationals and nations hands. If our goods were sufficiently attractive to them they would exchange this for our goods and services – since they are not all that can be done is to sell national assets [already being planed by Osborne] – which brings another set of problems. Better to restrict imports and balance trade even if this means we have to make do with lesser consumer products [made in the UK] – it is what China does.

  • @John Roffey – What makes me most thankful for the EU is the fact that it has embedded in Europe (a continent that has warred with itself for centuries) the idea that we negotiate our problems away, we don’t enter into bitter disputes that ultimately descend into violence, war and bloodshed.

    Sure, running the EU does cost money and maybe it’s inefficient. However it costs a lot less money and it a lot more efficient that settling disputes not in the debating chamber but on the battlefield. Vive l’Europe!

  • @ Stuart

    In truth, this was the noble cause which started off the whole process, however it has descended into quite a different animal – essentially a way for the political elite and global corporations to run Europe for their advantage and remove any real democratic accountability.

    Personally, I don’t think that war between Western European nations is any longer a realistic option, even with conventional weapons the horrendous damage inflicted to the nations involved would not be worth any gains made through ‘winning’.

    If this were still seen as a problem, then a joint defence arrangement would virtually eliminate this prospect and would be a very practical option in the modern world.

  • john stevens 17th Dec '10 - 2:01pm

    I agree with some of Andrew’s sentiments in this piece, but I think a referendum on our EU membership is now inevitable. It is the only thing that can arrest the inexorable drive towards detaching the UK progressively from the EU. I is also now the only thing that can prevent the Tory Party, abetted by Labour, from destroying the Lib Dems, as it is the only issue that can still tear both main parties apart. As the financial crisis, eurozone and global, advances towards a climax which resolves the future shape of the EU and the new balance of power between the West and Asia, Britain’s unresolved position both politically and economically will become untenable and fundamental choices will have to be made. Unfortunately, our leaders seem incapable of commanding the agenda and lack the trust of the electorate necessary to pursue the sort of coherent strategy which might deliver success. Increasingly grim events, I suspect, are now in the driving seat.

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