There has been widespread coverage of the European Scrutiny report on the UK Government’s renegotiation of EU membership, published today. The Report particularly stresses that voters must know that legally binding and irreversible change to the EU requires Treaty amendment.

Bill Cash, the Chairman of the Committee, said:

“Our Report is clear that the only way in which the Prime Minister’s negotiations could be given the legally binding and irreversible effect which he himself has called for—even for minor reforms to the EU, let alone a fundamental change in the UK’s relationship with the EU—would be through Treaty amendment, or the equivalent agreement of a Protocol. These would be lengthy processes, and each Member State would have to agree using its own constitutional procedures including, in some countries, referendums. Whatever the promises made in the negotiations, there is no certainty that they will be delivered to the British people. Voters in the forthcoming referendum must be aware of this when they make their choice as to whether to vote to remain in the EU or to leave the EU.”

The European Scrutiny Committee reached the following conclusions:

Engagement with Parliament and others

1. We share the House of Lords’ EU Committee’s concern that presenting Parliament with a ‘fait accompli’ could give rise to legitimate concerns about the accountability and transparency of both the process itself, and its outcome. We consider the approach adopted by the Government to be reactive and opaque. It places the onus on Parliament to guess when to request information and evidence, without information about the progress of the negotiations.

2. We asked for an analysis of the reaction from other Member States to the Prime Minister’s letter, with particular reference to immigration and availability of benefits. The Foreign and Commonwealth Office refused our request on the grounds that this fell under the category of “providing a running commentary of the renegotiation”, which the Minister of Europe had said the Government would avoid. We note that Mr Tusk made reference to these matters in his assessment of Member States’ reactions. This episode has served only to reinforce our frustration about the transparency of the process and the lack of meaningful Parliamentary engagement.

3. Parliament has a legitimate role in influencing the negotiation. It is disappointing that Parliament was not given the chance to debate the four main “asks” before the Prime Minister sent his letter of 10 November to the President of the European Council. Allowing it to debate only the “final offer” would be unacceptable. We consider it paradoxical that such an approach is being advocated by a Government professing to negotiate for a greater role for national Parliaments at EU level.

4. A negotiated settlement could well relate to powers which have been devolved, and so might require a Legislative Consent Motion from the Scottish Parliament and the other devolved assemblies. It is disappointing that none of the Devolved Administrations were consulted about the terms of the Prime Minister’s letter of 10 November. We are not convinced that the Government has yet taken the need for genuine engagement with the Devolved Administrations seriously. (Paragraph 24)

5. During the remaining course of the negotiations, we expect the Government to:

a) Provide a detailed update on the outcome of the European Council on 17 and 18 December, first in written form (as the House rises for the Christmas recess on 17 December), as well as a statement by the Prime Minister on the Council on 5 January 2016. This should be followed by regular debates on amendable motions, including some of the outstanding debates we have recommended, for the remainder of the process.

b) Respond fully to this Report in the context of the outcome of the December Summit as soon as the House returns after the Christmas recess.

c) Consult and engage meaningfully with the Devolved Administrations, the Commission and the European Parliament.

d) Consider carefully within the context of the negotiations the conclusions and recommendations of this Report and further Reports produced in the course of this inquiry.

6. We note the Minister for Europe’s commitment in the Commons debate on the EU Referendum Bill of 8 December, that when the Government provides the information envisaged by the Lords amendments (see para 19), it will do so with accuracy and impartiality.

The need for Treaty amendment

7. The requirement or otherwise to amend the Treaty will be a key factor in the negotiability of any particular UK renegotiation objective. We have therefore taken evidence from a broad range of legal experts which have informed our conclusions. (Paragraph 30)

Commitment to Treaty amendment

8. The process of ratification of Treaty amendment is unlikely to be completed by other Member States before the referendum takes place. Furthermore, there are substantial difficulties in both (a) an immediately effective interim alternative to Treaty amendment (such as a “Decision of the Heads of State and Government Meeting within the European Council”) and (b) a legally binding and irreversible agreement to ratify Treaty amendment sometime in the future. It will be necessary for the Government to set out which elements of the renegotiation package require Treaty amendment.

9. Simple clarification or supplementation of the existing Treaties could be achieved by an international agreement. This would be consistent with EU law but its limited nature is not compatible with realisation of “the opportunity to reform the EU and fundamentally change the UK’s relationship with it” envisaged by the Prime Minister in his statement to the House of 23 March 2015.

10. The deliberate distinction the Prime Minister made between EU reform and fundamental change to the UK’s relationship with the EU is important. The latter is a matter of constitutional significance such as to justify in itself the forthcoming referendum. However, this fundamental change is not now on the Government’s agenda. Therefore voters faced with the question whether to remain in or leave the EU will not have the choice of remaining in an EU with which the UK’s relationship is fundamentally changed.

Commitment to changes to EU secondary legislation

11. Any secondary EU legislation needed to implement the renegotiation outcome is unlikely to be fully in place before the referendum and, in any case, is unlikely to cover all the areas of renegotiation. Any general commitment to adopt such legislation may prove difficult to deliver in practice as the legislative procedures involve both the Commission and the European Parliament, and negotiation of the precise text could reveal differences not covered by a more general commitment.

Economic Governance

12. The Eurozone is not a legal entity and so the UK and other non-Eurozone Member States are directly affected—through our EU membership—by decisions that are made for Eurozone Member States. There are no certainties about how the Eurozone will integrate further and the extent to which that integration, through qualified majority voting, might affect UK national interests in the wider single market and other EU policies. It is politically and legally right that the Government negotiate to adopt safeguards against the risk that Eurozone Member States could caucus together against the interests of the European Union as a whole. This is a particular risk since the entry into force of revised Council voting arrangements that gives the 19 Eurozone Member States a qualified majority should they all agree.

13. We consider that the regulation of the relationship between Eurozone and non-Eurozone Member States is of such importance that it requires the security of Treaty amendment. In particular this is necessary to secure, in a manner that provides legal certainty, a double majority system in relation to economic governance.

14. We are reinforced in the view that Treaty amendment is necessary by the episode when the European Financial Stability Mechanism (to which non-Eurozone Member States contribute) was used to bail out Greece urgently in the face of an earlier agreement by the Council that this would not be done. In this case, associated guarantees were given that non-Eurozone Member States would not suffer financially, but the precedent is troubling.

15. It should be made absolutely clear that any safeguard measure to protect UK national interests must be made available across the broad range of EU legislation and not just for legislation adopted under an internal market or economic and monetary policy legal base.

Competitiveness

16. The Government’s priorities under the competitiveness agenda are closely aligned with the Work programme of the Juncker Commission, which has shown a significant and welcome change in emphasis towards the UK’s agenda on deregulation and competitiveness. The Committee expects this part of the renegotiations to be the easiest in which the Government can meet its aims. While there is merit in giving extra impetus to these efforts, this aspect of the renegotiation cannot be regarded as a fundamental change in the UK’s relationship with the EU.

17.Being work in progress and involving, at most, changes to EU secondary legislation, significant parts of this agenda are unlikely to be adopted before the referendum. This gives rise to the problem of uncertainty highlighted in chapter three.

Ever Closer Union

18. The concept of “ever closer union” as found in the Treaties is more nuanced than a simple aspiration for deeper EU integration as mentioned in the 2014 European Council Conclusions. It also embraces the idea of a closer union of “the peoples of Europe” and, in the TEU, is linked to the aspiration for transparent and local decision-making.

19. Some of the experts we consulted said that the concept is of limited legal importance, is largely symbolic and that UK disengagement would fall short of the fundamental change in the existing relationship of the UK to the EU to which the Prime Minister aspires. This is particularly so given that UK disengagement would not, strictly, apply retrospectively to the existing EU acquis of Treaties and legislation. Its importance could be enhanced if combined with a successful outcome on Eurozone safeguards if that could be achieved or if deployed politically in future Treaty negotiations or to help interpret any UK opt-out. (Paragraph 115)

20. Given that the concept of “ever closer union” is embedded in Article 1 TEU, Treaty amendment will be required for UK disengagement from the concept to be legally robust. Care will need to be taken with drafting to ensure the reform does not undermine other concepts associated with “ever closer union” such as democratic accountability of the EU and citizens’ rights. The scope of the concept, and the fact that it will remain applicable for all or some other Member States, require clear explanation to the electorate. (Paragraph 116)

21. Some of the key considerations in assessing the effect of the UK withdrawing from a commitment to “ever closer union” are as follows:

a) There is already substantial legal and political recognition that different levels of integration are permissible;

b) There are other drivers for integration in the Treaties which the Court of Justice and other EU institutions may invoke, should they wish to do so;

c) The Court, if it were seeking to use the concept as an aid to interpretation of other provisions of the Treaties or EU secondary legislation, would be faced with the problem that—although the Treaty provision or legislation applied to all Member States—the concept of “ever closer union” did not; and

d) The UK risks being marginalised.

National Parliaments and Subsidiarity

22. The question before the voters will be whether to remain in or to leave the EU. There will be those with fixed views one way or another, irrespective of the renegotiation. For the others, the option of remaining in the EU will focus on the adequacy or otherwise of the package negotiated on the basis of the Prime Minister’s letter to Mr Tusk of 10 November. However that letter does not address the question of a fundamental change in the UK’s relationship with the EU, which must be distinguished from reform of the EU because it concerns national sovereignty. We are disturbed that the stark alternative presented to the voter, of staying in or leaving the EU, does not adequately address this issue. (Paragraph 130)

23. The Committee recalls that the European Communities Act 1972 (which remains the UK enactment which governs the voluntary acceptance by the UK of the European Union) was based on a preceding White paper highlighting, first, that, “All the countries concerned recognise that an attempt to impose a majority view in a case where one or more members considered their vital interests to be at stake would imperil the very fabric of the Community”; and, second, that in the absence of unanimity in the Council, “where member states’ vital interests are at stake, it is Community practice to proceed only by unanimity.”

24. The Prime Minister correctly asserted in his Bloomberg speech that “It is national parliaments which are and will remain the true source of democratic legitimacy and accountability in the EU.” The red card as it is proposed represents a practical threat to the exercise of UK parliamentary sovereignty as it makes the will of the UK parliament in a particular case subordinate to the differing collective view of a group of parliaments.

25. In any event lessons must be learnt from the current subsidiarity reasoned opinion procedure in respect of the yellow card, as with the Commission’s dismissal of concerns about the proposal for a European Public Prosecutor Office, even though the yellow card threshold was passed. Furthermore, any red card procedure must not be limited in its scope to subsidiarity alone and must have thresholds and deadlines that would enable it to become an effective tool.

Immigration

26. We note that there is a gap between the Government’s objective of reducing net migration of over 300,000 people per year and the proposals now on the table. There is little evidence to suggest that the proposals—focused on reducing the magnetism of the UK’s benefits system—will fully address the concerns highlighted relating to the levels of net migration, though they could address concerns about the benefits being paid to those who are not entitled to them.

27. The question of whether Treaty amendment is necessary to implement the UK’s renegotiating objectives in the field of immigration is difficult to resolve in the absence of sufficient detail as to the outcome of the renegotiation. Even then, uncertainty may remain in some areas due to the deep involvement of the Court of Justice. That in itself suggests that some Treaty amendment will be necessary in order to make the outcome of the renegotiation “judge-proof”.

28. Even if Treaty amendment is not necessary in this area, changes to secondary EU legislation will be. As we outline below, this will be difficult to negotiate and it will be difficult to secure binding commitments to achieve such legislation for the reasons outlined in chapter 3.

29. Limited though the promised changes to immigration and the availability of benefits are, the political and legal challenges of negotiating them—with or without affecting the rights of UK citizens—are formidable. Our ability to assess the Government’s likely success in its negotiations would be improved by greater access to information available to the Government while the process is underway. Read the report here.