What theTreaty of Lisbon means to Britain, in 300 pages that just give the facts

Within and outside parliament the public debate on the Lisbon Treaty has been generating more heat than light. This is not surprising, given the political row over whether or not to call a national referendum on its ratification.

On 13 March 2008 the House of Lords Select Committee on the European Union published The Treaty of Lisbon: an Impact Assessment, a 300-page rigorous and entirely objective analysis of the treaty, assessing its impact on the EU’s institutions, the member states and in particular the United Kingdom.

It makes no comparison with the now defunct Constitutional Treaty, judging it more useful for parliament to compare it with the status quo. Nor does it express opinions on either the referendum question or on whether the treaty should be ratified; these are matters for parliament.

Member states may differ on what they think significantly changes the status quo, depending on how they see themselves affected. In certain areas the effect on the United Kingdom is different from that on most of its partner states due to the protection of so-called ‘red lines’ and to the opt-in rights negotiated in the area of freedom, security and justice.

We did not treat the ‘red lines’ as subjects for separate analysis, merely noting them where treaty articles relevant to them were being examined. On the other hand we examined the opt-in provisions in detail.

Regarding the Charter of Fundamental Rights, we were not persuaded by suggestions that the charter itself creates or contains new rights which differ from those in the underlying national and international instruments and documents from which the charter indicates its provisions are derived. The scope of its rights will ultimately be a matter for the courts.

However, these broad rights and the language in which they are expressed in the charter reflect existing national, EU and international obligations. Furthermore, the charter does not apply to situations involving purely domestic law. For the charter to be directly relevant, there must be a link to Union law. The UK’s concern, which led to the drawing of a ‘red line’, was to ensure that its existing labour and social legislation was protected.

We are satisfied that the charter does not create a free-standing right to strike; it is clear that within the Community framework the right to collective action, including the right to strike, is already recognised as a general principle of law.

The relevant charter article stipulates that workers and employers have the right to collective bargaining ‘in accordance with Union law and national law and practices,’ and the European Court of Justice has, in recent judgments, indicated the significance of these limitations.

The UK/Polish protocol, which has the same legal value as the treaties, is not an opt-out from the charter, which will apply in both countries even if its interpretation may be affected by the protocol’s terms.

In addition to reflecting the fact that the charter creates no new rights, the protocol appears to put beyond all doubt the fact that nothing in the charter’s Title IV (Solidarity Rights) creates justiciable rights applicable to either the UK or Poland except insofar as such rights are provided for in their national laws.

In the area of freedom, security and justice (FSJ), the treaty’s merger of the First and Third Pillars brings criminal law and policing within the new Title V TFEU framework in which, for the most part, measures will be adopted by the ordinary legislative procedure, i.e. by qualified majority voting (QMV) and co-decision with the European Parliament.

Family law, however, will continue to be decided by unanimity. The veto’s removal in respect of criminal law and policing means that one member state, or a small group, can no longer block measures supported by the UK. The corollary is that, in some cases, the UK could be bound by a measure against its will.

However, the likelihood of this will be greatly reduced by the general right the UK will have not to opt in to any proposed measure in the entire FSJ area — a second ‘red line’. The opt-in provisions will apply also to amending measures, but other States are permitted to eject the UK from an existing measure where it declines to participate in an amending measure, though with one important restriction: UK non-participation must render the system demonstrably ‘inoperable’. Such cases should be rare.  

Significant in the field of EU foreign, defence and development policies is the creation of a High Representative for Foreign and Security Policy and Commission Vice President, supported by an External Action Service. This brings together the separate functions of the Foreign Affairs Council Presidency, the External Relations Commissioner and the High Representative. Chairing the Foreign Affairs Council will give the incumbent a further degree of influence over decision-making and should improve coherence.

That said, we are satisfied that the treaty will not change the CFSP’s scope nor transfer additional new powers to the EU in this area. The new provisions could lead to a more active EU role, but much will depend on the degree of consensus among Member States. For example, the treaty allows for decisions defining an EU action or position on a proposal from the High Representative to be adopted by QMV, but the European Council must unanimously agree to request such a proposal.

The evidence is that the treaty preserves the independence of the UK’s foreign and defence policy, subject to the constraints arising when unanimous agreement proves possible — the third ‘red line’. The fundamental principles of the CFSP won’t change.

In particular, the unanimity principle and the search for consensus in decision-making still apply. Further, the treaty changes nothing in the UK’s right to retain its seat on the UN Security Council, its role as a permanent member, its right to speak, and its individual vote and veto.

 Where the EU has a unanimous common position, the UK will be required to request that the High Representative present that position to the Security Council, but that possibility does not displace the UK’s right to speak and vote.

The fourth ‘red line’ concerns the protection of the UK’s tax and social security system. Measures in the field of social security for migrant workers and their dependents are currently adopted by unanimity but would move to QMV.

To maintain member states’ financial autonomy, the UK negotiated an ‘emergency brake’ whereby any member state can request that a proposed measure be referred to the European Council should the state believe that it would affect important aspects of its social security system. In evidence the Department of Work and Pensions said it believed the mechanism maintained the UK’s ultimate control over any changes in this specific field.

Not surprisingly witnesses at our inquiry differed on whether the treaty’s new provisions involve any significant transfer of sovereignty. We drew up no balance sheet but came to some conclusions, a number of which are set out above, that might help members of the House to take a view.

I conclude with three more examples. First, the Committee found it significant that the principle that the Union may only exercise such competences (powers) as are conferred on it by member states and that all other competences remain with the member states — always implicit in the treaties — is articulated for the first time.

Also for the first time the treaty sets out the categories of competences: exclusive, shared and supporting. It also formally specifies new or extended competences: the government counted 17 and told us that in almost all of these areas the EU alrady takes action under other legal bases.

Secondly, the extension of QMV to over 40 new areas is significant, but in some cases this may help advance UK interests; the veto is a double-edged sword.  On the other hand, to block legislation in the absence of a veto the UK will need to construct a blocking minority. Meanwhile under the new ‘double majority’ system for calculating a qualified majority, the UK’s voting weight increases from eight per cent to 12 per cent.

Thirdly, some have raised concerns that the treaty’s simplified revision procedures and passerelles could be used to alter significantly provisions on the face of the treaties. But any treaty revision through simplified procedures, and any changes to decision procedures by means of passerelles, will be subject to government veto, and under the EU (Amendment) Bill government approval to any such move would need the approval of both Houses.

Our report has sought to set out the facts about the Lisbon Treaty. The House of Lords will now make up its own mind about it.

Lord Grenfell is Chairman of the European Union Select Committee.

The Treaty of Lisbon: an impact assessment,

13 March 2008 (House of Lords, HL Paper 62-I).