Below are our comments on the 26 allegations. Steve Peers, Professor of EU, Human Rights and World Trade Law at the University of Essex, has also responded to all 26 claims in a Tweet. I should add that the Lisbon Treaty is a set of EU Treaty amendments which amended the EU Treaties (now called theTreaty on European Union and Treaty on the Functioning of the EU). The Articles mentioned in the answers below are those in the present text of the EU Treaties, as amended by the Lisbon Treaty (which entered into force on 1 December 2009).
1. The UK along with all existing members of the EU lose their abstention veto in 2020 as laid down in the Lisbon Treaty when the system changes to that of majority acceptance with no abstentions or veto’s being allowed.
As is explained by the EU here, there is no such thing as an ‘abstention veto’ under the EU Treaties. In cases where the EU Treaties require unanimity in order to proceed, an abstention simply reduces the vote count, but does not count as a vote ‘against’ that will veto any proposals (see Art 235(1) TFEU) and 238(4) TFEU). Under qualified majority voting (QMV), abstention does count as a vote against, but no single Member State can oppose an EU action and prevent it from being adopted; a collective ‘veto’ (a blocking minority) is possible if there is substantial opposition (usually this must include at least four Council members representing more than 35% of the EU population).
The exception is the Common Foreign and Security Policy, where Article 31(1) TEU sets out the following:
- Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.
- When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.
There is no indication this will change in 2020. In general, unanimity remains required in many parts of the EU Treaties, including taxation, accession of new Member States, and Treaty amendments; the unanimity requirement acts as a ‘veto’.
Commission President Jean-Claude Juncker indicated in 2017 that the Commission will propose legislation to reduce the number of areas in which unanimity in the Council is required so that it can apply QMV to areas like taxation, which currently requires unanimity. However, these are merely proposals—unlikely to be supported by the Member States—and are not intended to commence before 2025.
2: All member nations will become states of the new federal nation of the EU by 2022 as clearly laid out in the Lisbon treaty with no exceptions or veto’s.
The EU Treaties do not mention 2020 or 2022 in all 750 or so of their pages. Furthermore, creating a ‘federal’ European ‘nation’ would require the adoption of new treaties to amend the EU Treaties, which any Member State would be able to veto.
3: All member states must adopt the Euro by 2022 and any new member state must do so within 2 years of joining the EU as laid down in the Lisbon treaty.
This allegation is incorrect. Protocol 15 to the Consolidated version of the Treaty on the Functioning of the European Union (TFEU - the EU Treaty as amended by the Lisbon Treaty) states the following:
Unless the United Kingdom notifies the Council that it intends to adopt the euro, it shall be under no obligation to do so. Protocol 15 is part of the Treaty and therefore the EU’s primary law. It cannot be amended or repealed without amendment of the Treaties, which needs the approval of all 28 Member States, so the UK, if it were to remain in the EU, would be able to block it. The UK could not be ‘forced’ to adopt the Euro and neither could any of the other Member States currently enjoying an exception to adoption of the Euro (such as Denmark, whose exception is set out in Protocol 16).
New Member States are indeed required to adopt the Euro and join the Eurozone, but there is no timeframe in which this needs to be accomplished. As set out in Articles 139-144 of the TFEU, the EU institutions evaluate whether or not a new Member State is ‘ready’ to adopt the Euro on a number of criteria on a biannual basis, but this does not mean that the Member State is forced to adopt the Euro at that date.
4: The EU Parliament and ECJ become supreme over all legislative bodies of the UK.
Under the long-standing principle of supremacy, as accepted by the UK in adopting the European Communities Act 1972 and in House of Lords judgments such as Factortame (No 2), the UK already accepts that EU law takes ‘primacy’ over UK law, meaning that in the cases of conflicts between the two, domestic law has to be set aside by courts. By this definition of ‘supremacy’, acts of the EU Parliament and decisions by the Court of Justice of the EU (CJEU) are already ‘supreme’.
If this is not what is being referred to, I am unclear on what this means. The European Parliament participates in EU legislative processes and has no role in UK legislative processes. The CJEU does not deal with questions of national law, so beyond the supremacy of its judgments when there is conflict between EU law and national law, also does not touch upon national legislative processes.
5: The UK will adopt 100% of whatever the EU Parliament and ECJ lays down without any means of abstention or veto, negating the need for the UK to have the Lords or even the Commons as we know it today.
As discussed above, abstentions remain possible in the area of Common Foreign and Security Policy and vetoes through unanimity requirements remain possible in various other areas in the Treaties. Beyond that, the European Parliament only ‘lays down’ laws in collaboration with the Council of Ministers, on which the UK is represented by its Cabinet (and thus by MPs).
It is already not possible to abstain from or veto CJEU judgments. However, the Lords or Commons do not deal exclusively with EU law, and as the EU is a body of limited competences, there is ample domestic law for the Commons and the Lords to construct outside EU law. Even certain types of EU laws, such as directives, require national decision-making by national legislatures on how to achieve a given EU goal, and this too is a role the Commons will continue to carry out.
6: The UK will NOT be able to make its own trade deals.
The UK is already not able to make its own trade deals. This is a core condition of the EU’s Common Commercial Policy, to which the UK signed up when it joined the EU.
7: The UK will NOT be able to set its own trade tariffs.
The UK is already not able to set its own trade tariffs. This is a core condition of the EU laws pertaining to the EU Customs Union, to which the UK signed up when it joined the EU.
8: The UK will NOT be able to set its own trade quotas.
The UK is already not able to set its own trade quotas. This is a core condition of the EU laws pertaining to the EU Customs Union, to which the UK signed up when it joined the EU.
9: The UK loses control of its fishing rights
As an EU Member State, the UK is subject to the Common Fisheries Policy, and has effectively already lost control over the determination of its fishing rights; the CFP treats all coastal areas of Member States as a single ‘economic zone’ for fishing purposes and spreads quotas for fishing across the Member States. This would not be a new policy in 2020.
10: The UK loses control of its oil and gas rights
As with fishing rights, there is existing EU law in this area. The UK determines where oil and gas can be searched for and produced within UK territory and this will not change (as set out in Article 194 TFEU); EU law on the other hand has common rules for determining what companies can search for and produce gas from within the EU to ensure fair competition.
11: The UK loses control of its borders and enters the Schengen region by 2022 as clearly laid down in the Lisbon treaty
Protocol 19 to the EU Treaties makes clear that the UK and Ireland may join Schengen, but are not obliged to. This will not change without the UK’s agreement if the UK remains a Member State.
12: The UK loses control of its planning legislation
Planning legislation is not an exclusive EU competence under the Treaties; nor is it a shared EU competence unless it can somehow be linked to the Single Market, but even then unanimity requirements apply per Article 192(2) TFEU. Beyond currently applicable health and safety and environmental law, which does originate in the EU, there is little in UK planning law that is based in EU law. For more detail, see this.
13: The UK loses control of its armed forces including its nuclear deterrent
As discussed in detail here, the EU has no competences to create an army (or adopt similar policies in the field of national security) under the current Treaty. Treaty change is not possible without Member State unanimity; the UK could veto this. The EU also has no competence over the UK’s nuclear deterrent. Where the EU pursues activity under the Common Security and Defence Policy, it is by unanimity, thus giving the UK a veto (under Article 42 TEU).
14: The UK loses full control of its taxation policy
As noted above, while the Commission appears to be proposing that more areas of taxation move to QMV in the next six years, this has not happened yet, may not happen at all, and perhaps should not be described as a ‘full’ loss of control when collective vetoes remain possible under QMV.
15: The UK loses the ability to create its own laws and to implement them
As noted above, the EU is an organisation of limited competences, with the current competences set out in Articles 4-6 of the TFEU. Without Treaty change there is no possibility for the UK to ‘lose’ any law-making ability or law-implementing powers that have not already been conferred to the EU in previous Treaties. Treaty change is also not possible without the consent of all Member States with regard to changing the powers of the EU.
16: The UK loses its standing in the Commonwealth
The EU has no competence that affects the UK’s standing in the Commonwealth.
17: The UK loses control of any provinces or affiliated nations e.g. Falklands, Cayman Islands, Gibraltar etc
The EU does not control whether the UK has overseas territories or affiliated nations; this is a matter of public international law and/or domestic law. The EU Treaties apply to these overseas territories only insofar as the UK has negotiated on their behalf; see here for more information.
18: The UK loses control of its judicial system
EU law has no competence regarding the organisation of national judicial systems. Insofar as EU law has an influence over how UK courts interpret domestic legislation in light of EU law, there are no ‘changes’ on the horizon here, as CJEU case law established relevant principles such as direct effect, indirect effect and supremacy between the 1950s and the 1980s. Direct effect and supremacy are both reflected in the European Communities Act 1972.
19: The UK loses control of its international policy
Common Foreign and Security Policy remains the one area of EU law where Member States retain the ability to abstain, ‘veto’ and ‘opt out’ of EU policies. This will not change without Treaty change.
20: The UK loses full control of its national policy
‘National policy’ is not an EU competence.
21: The UK loses its right to call itself a nation in its own right.
The law of statehood stands fully separate from EU law and is not affected by EU law.
22: The UK loses control of its space exploration program
Article 189 of the Treaty on the Functioning of the EU states:
- 1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
- 2. To contribute to attaining the objectives referred to in paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, excluding any harmonisation of the laws and regulations of the Member States.
Paragraph 2 is the key one here: as the EU does not have the competence to ‘harmonise’ Member State law in the area of space exploration or policy, it cannot overrule existing Member State ‘space policy’. Again, this cannot change without Treaty amendment, which would need UK approval.
23: The UK loses control of its Aviation and Sea lane jurisdiction
I am not entirely clear what is meant by ‘aviation jurisdiction’ or ‘sea lane jurisdiction’; if what is meant by this is the airspace and sea waters that fall under UK control, these are matters settled by public international law conventions like the United Nations Convention on the Laws of the Sea (UNCLOS), to which both the EU and its Member States are parties. The main reason the EU is a party to UNCLOS is because of its competence in fisheries and the fact that all Member States can fish in each other’s territorial waters. However, the determination of what sea is considered ‘UK sea’ is not an EU competence.
Aviation is subject to the Convention on International Civil Aviation (Chicago Convention), which coordinates international air space; the UK is a signatory of this Convention in its own right and the UK’s Civil Aviation Act 1982 contains powers to give effect to the Chicago Convention in section 60. The EU has since 1999 been working on treating airspace above the EU as a ‘single area’ for civil purposes. This system, known as Single European Sky, is again not new, and operates by treating national air space of the Member States as a single territory that can be coordinated at EU level.
In short: the determination of sea lanes and aviation space belonging to the UK is not a matter of EU law, but as an EU Member State, the UK’s sea lanes and air space have been opened up to other Member States’ civil actors and regulated in part at the EU level for some time now.
24: The UK loses its rebate in 2020 as laid down in the Lisbon treaty
This is untrue; there is no change to the ‘rebate’ if the UK remains a Member State. This was confirmed as being the case even now that Article 50 has been notified by the UK, should Article 50 be revoked; see the CJEU in its Wightman judgment in paragraph 75.
25: The UK’s contribution to the EU is set to increase by an average of 1.2 bn pa and by 2.3 bn pa by 2020
The table below, copied from the October 2018 OBR Forecast on Expenditure, suggests that over the course of the next few years, EU budget contributions are forecast to hit a ‘peak’ in 2019-2020 (at 11.6 billion), but after that will remain fairly level at 10.8, 11, 10.8 and 10.9 billion a year (see second to last line, and tab 2.25 in the above linked spreadsheet). This is not an average increase of 1.2 billion per annum or 2.3 billion per annum. More ‘accurate’ forecasts, based on the proposed new EU budget, are not possible, as the EU’s next Multiannual Financial Framework (from 2021 onwards) has been drafted by the Commission on the presumption that the UK is no longer going to be a Member State.