A report is doing the rounds via Twitter and various blogs (e.g. Inquiringminds and pjcjournal) about changes in the European Union in November 2014 that will mean the end of British sovereignty. They also claim that the Prime Minister’s promise to hold an in/out referendum by 2017 is spurious because it would be “illegal” under EU law. Many constituents have contacted their MP about the report, wanting to know if it is true.
The report points to 43 or so areas of EU policy areas that are subject to a system of voting called Qualified Majority Voting or QMV in the EU’s legislative body, the Council, which comprises government ministers from the 28 EU Member States. The report accuses David Cameron of being determined “to delay our referendum beyond that date, tying Britain for ever within the non-democratic, totalitarian and now clearly despotic EU”.
What is Qualified Majority Voting?
The Council can adopt proposals, together with the European Parliament, if it can muster around 74% of the votes that Member States are allocated under a weighted voting system. The Treaty of Nice in 2001 introduced a “demographic verification” element. The number of votes allocated to each Member State was re-weighted, particularly for those with larger populations – such as the UK – to make Council decision-making fairer. In 2007, when the EU reached 27 Members, the qualified majority needed to adopt legislation increased to 255 votes out of a total of 345, representing a majority of Member States (i.e.14). In addition, a Member State could ask for verification that the QM represented at least 62% of the total population of the Union. If not, the decision was not adopted. Since Croatia joined the EU in July 2013, at least 260 votes out of a new total of 352 (approx. 74%) have been required for legislation to be adopted by qualified majority.
QMV has been a feature of EU decision-making since the birth of the EEC in 1957. With various EU Treaty amendments, more EU policy areas have moved from governments agreeing by unanimity to agreeing by QMV, largely so that decisions can be made more easily in an expanding EU and not be held up by a need for consensus. QMV has been particularly useful i adopting laws to establish the single market.
The decision-making procedures in the EU Council are often criticised for lacking transparency (see Library Note 6646, Voting Behaviour in the EU Council, 23 May 2013) and the increased use of QMV does have implications for national sovereignty, because it means individual governments can’t veto proposals they disagree with. However, they do not mean the end of the UK Government or Parliament, as claimed on blogs.
What is happening in November 2014?
Under changes agreed in the Treaty of Lisbon (which came into force in December 2009), the voting powers of Member State governments will include a greater ‘population element’. From 1 November 2014, a double majority will be needed to adopt proposals: decisions in the Council will need the support of 55% of Member States (15 out of 28 EU States) representing a minimum of 65% of the EU’s population.
Most analysts calculate that the large and small Member States (the UK is a large Member State) gain from the Lisbon changes, while the medium-sized States, such as Poland and Spain, lose out in comparison to the Nice Treaty rules. For this reason, and on Poland’s insistence, between 2014 and 2017 there will be a transitional phase where the new QMV rules will apply, but where the old voting weights can be applied if a Member State requests it for particular reasons.
In practice, governments adopt most legislative decisions by consensus; things rarely come to a formal vote in the Council and negotiations usually continue until a compromise is agreed.
Have rights been taken away from the UK?
Individual States’ powers of veto have been removed in some of the 43 areas, where unanimous agreement has been replaced with agreement by a qualified majority. This means governments have to work harder to form coalitions, find allies and negotiate compromises.
In many of these areas the UK is not affected by any changes to voting because it has an opt-out from that policy area. So the list of items (as reported on blogs) over which it is claimed the UK will have no control is misleading and in some cases wrong:
- The UK has an opt-in or opt-out option to EU measures concerning asylum, border controls, crime prevention, criminal justice cooperation, criminal law, Eurojust, Europol, freedom security and justice evaluation, immigration and police cooperation. This means the UK can choose whether or not to participate in decisions on these matters (but if we choose to participate, then we have to abide by the QMV rule).
This arrangement applies to 11 of the items in the list.
- The UK has an opt-out from the Euro and Eurozone representation.
- In two cases – concerning freedom of movement for workers and social security – there is an ‘emergency brake’, which means that if a Member State objects to a proposal on grounds of important national concerns, the decision is taken by unanimity.
- Common defence policy: any move towards achieving a common defence policy will be by unanimity. QMV can be used only to establish ‘structured cooperation’ in defence, whereby a group of like-minded Member States choose to cooperate in a defence-related matter. If the UK does not want to participate, it does not have to.
- European Court of Justice: QMV is used only to amend the Court Statute.
- Culture: QMV is used for incentive measures only.
- Freedom to establish a business: QMV was used before the Lisbon Treaty.
- The EU Armaments Agency was not in the Nice Treaty as stated in the blogs. The reference is to the European Defence Agency, which was established in 2004. The European Council (heads of state and government) decided unanimously in June 2003 to ask the “appropriate bodies of the Council to undertake the necessary actions towards creating, in the course of 2004, an intergovernmental agency in the field of defence capabilities development, research, acquisition and armaments”.
- Funding the Common Foreign and Security Policy: only urgent start-up funds for emergency situations are subject to QMV.
- Sport was not covered by the EU Treaty before Lisbon so the reference to the Nice Treaty is wrong.
An in-out EU referendum in 2017
A UK referendum vote on EU membership will not be ‘illegal’ and the UK will not be prevented from leaving the EU in the event of a negative vote in 2017.
Article 50 of the Treaty on European Union (TEU) provides for a Member State to leave the EU if it wishes, without needing the permission of the other Member States. QMV would be used by the other Member States to agree the terms of exit for the withdrawing State. Article 50 TEU states:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.