The European Union Act 2011

Why was it introduced (political sociological context)?

The European Union Act of 2011 [‘the Act’] introduces restrictions to the application and amendments in treaties relating to the European Union [‘EU’] as well as the means by which European Union law may have an effect in the United Kingdom’s [‘UK’] domestic laws. The Act pertains to the political tensions between the sovereignty of the UK Parliament and the EU. Following the UK Prime Minister’s signing of the Treaty of Lisbon in 2007, the UK Parliament passed the European Union (Amendment) Act of 2008, by which they gave effect to the Treaty of Lisbon in the laws of the UK. Parliamentary debates marginally dismissed the proposal for a UK-wide referendum prior to approval and incorporation of the Treaty. This spurred political and societal tensions that questioned the transfer of power to the EU in relation to UK sovereignty and the will of the people. It also raised questions pertaining to the authority of EU law over UK law. Thus, the 2011 Act emerged on this political backdrop and call from greater UK authority to restrict future transfers of sovereign powers to EU and affirm the authority of UK laws over that of the EU.

What was the aim of the Act (legal context)?

The aim of the Act is primarily to strengthen UK procedures and safeguards in the ratification of EU Treaty changes and to, accordingly, restrict EU powers in respect of UK sovereignty and the will of the people. Accordingly, the Act reaffirms UK sovereignty in relation to both EU Treaty amendments as well the direct effect of EU laws in the UK.

What main changes did it make to the law?

The primary change introduced by the Act is the requirement for a UK-wide referendum prior to any assents or amendments to an EU Treaty, thus restricting any future proposed transfers of powers from the UK to the EU. The Act introduces the requirement of a referendum to take place throughout the UK before any proposed assents or amendments to an EU Treaty that would pertain to the UK’s sovereign powers. The Act further provides an affirmation that directly applicable EU law would only take effect in the laws of the UK after an Act of Parliament to that effect is passed. This affirms the sovereignty of the UK Parliament over EU legislation. Overall, the Act alters the political power balances and extends UK control and scrutiny over EU decisions and laws.

In introducing these changes, the Act amends the previous European Communities Act of 1972, which allowed for the incorporation of EU treaties and into the domestic law of the UK. The 2011 Act imports the requirement to hold a referendum in relation to any future EU treaties. Further, the European Communities Act of 1972 had stipulated that EU law is to have direct effect and that all UK legislation is subject to all directly-applicable EU laws. The 2011 Act alters this by requiring that any directly-applicable UK law must be passed by an Act of Parliament prior to its effect in UK law, thus directly and expressly affirming the sovereignty of the UK legislative body over that of the EU.

Key Sections

The first key section in the Act prescribes restrictions relating to any amendments of the current Treaty on the European Union and Treaty on the Functioning of the European Union, stipulate that no amendments or replacements thereto shall be ratified unless (a) laid before Parliament, (b) approved by an Act of Parliament, and (c) the referendum condition or exemption is met (s2(1)). The referendum requirement by the Act requires that no treaty approval may come into force until a referendum concerning whether the treaty should be ratified is held throughout the UK and the majority voting are in favour of the ratification (s2(2)). The Act also imports these requirements with respect to EU Treaty revision procedures (s3) and another number of decisions. The Act provides procedures concerning the way in which a statement is to be laid before Parliament (s5), and, in respect of the referendum, prescribes procedures concerning an electoral commission, enlisting the persons eligible to vote in the referendum as those eligible to vote in other UK elections, and the role of Parliament thereto.

Another key section of the Act enables the UK to ratify a Protocol allowing an additional EU Parliament seat for a UK MEP (Part 2). The Act also introduces a clause that expressly recognises the status of EU law as being dependent on statutory Acts of Parliament, providing that any directly applicable or directly effective EU law shall only be recognised in the UK solely by virtue of a parliamentary Act (s18). Thus, this provision expressly restricts the effect of EU law and renders it subject to continuous statutory scrutiny.