Tag Archives: European Union Act 2011

Cormac Mac Amhlaigh: W(h)ither Sovereignty?

Harbingers of the demise of sovereignty are not new.  At least since Karl Marx prophesized the withering away of the state, the heralding of the end of sovereignty has been an almost recurrent theme in political theory.  In recent times, however, these prophecies have become increasingly insistent and have, perhaps for the first time, emanated predominately from the field of public law.  In the European context, the debate about whether and to what extent EU membership compromises state sovereignty has been a central preoccupation of scholars of European integration for a generation, a debate which has intensified in the aftermath of the Euro crisis. In the U.K., a host of developments, both European and domestic, continue to fuel the discussion as to whether Parliament is indeed still sovereign, a notable recent catalyst being the ECtHR’s role in clipping Parliament’s wings over issues such as immigration and prisoner voting.

The concept of sovereignty, including its institutional expression in parliament in the UK constitution, provides part of the deep grammar of public law.  Thus for public lawyers, the question of the fate of sovereignty is of central concern to our discipline.  However, if it is a commonplace that sovereignty is somehow affected by recent political developments, what is less clear, is how.  Logically speaking there are three possible answers to this question:  sovereignty hasn’t changed, is undergoing a slow and steady demise or is evolving and adapting to new realities.  Holders of the no-change position have disputed that sovereignty has changed at all.  They rely on Schmittian scenarios of unilateral Member state withdrawal from the EU, or repeal of the various ‘constitutional statutes’ of which a substantial part of the UK constitution is apparently made, if for no other reason than to allow Parliament to flex its sovereign muscle, to argue their case.  Others dispute the continuing relevance of sovereignty to the contemporary world, seeing demise as the only possibility.  Given the supposedly categorical nature of the concept – either you have it or your don’t – then the notion of sovereignty evolving rather than simply being surrendered doesn’t make sense, and so we must get used to our new post-sovereign realities, recalibrating our practices, including public law, accordingly.

An emerging more nuanced view is that sovereignty is indeed evolving but not to such an extent that it is no longer relevant.  This ‘late sovereignty’ position holds that the concept still retains its purchase on law and politics, both domestic and supranational, but that its has evolved from the Westphalian paradigm of hermetically sealed sovereign states to incorporate transnational actors such as the EU and ECtHR and their influence on domestic public law.  This evolution denotes a change in the nature of sovereignty claims from categorical to more relative claims of authority such that simultaneous sovereignty claims, both national and supranational, are not incommensurable.

This more nuanced account which views sovereignty in phases from early, high to late forms, implicitly relies on a conception of sovereignty which is flexible and context-specific, rather than immutable and rigid meaning the same thing in all times and places.

As the grammar of public law, the concept of sovereignty entails a series of rules governing the idea of ultimate authority in legal and political practice providing the ground rules of ‘sovereignty games’.  The constitutive rules of sovereignty games constitute the actors participating in the game, that is those agents which makes ultimate authority claims, as well as providing the primary indicator that a particular ‘game’ is being played – that a sovereignty game and not some other sort of game, such as post-sovereignty, is being played. The regulative rules provide standards against which to measure how well the game is played and as such provide criterion for what constitutes a ‘good’ or legitimate claim to ultimate authority.  It is the evolution of this grammar, the constitutive and regulative rules of sovereignty games, which mark the passage from high to late sovereignty.

The rules of sovereignty games played during the high sovereignty era, then, were played primarily by sovereign states, making claims to ultimate authority over a territory and people (the constitutive rules of high sovereignty), justified according to notions of constituent power, popular sovereignty, divine right or even mere convention (the regulative rules of high sovereignty).  In late sovereignty games, the grammar has evolved such that the constitutive rules of late sovereignty games relate not, or not exclusively, to territory and people, but to functional domains such as trade, the environment or human rights.   Furthermore the constitutive rules of late sovereignty games imply that the actors making such claims to ultimate authority no longer fit the mould of the sovereign state.  Thus, the EU makes claims to ultimate authority over certain sectorally defined functions without being, or claiming to be, a sovereign state.

The regulative rules of late sovereignty games, that is, the criteria for what constitutes a ‘good’ sovereignty claim, have also evolved.  First of all, the repertoire of reasons that count as ‘good’ or legitimate claims to ultimate authority has expanded beyond those of high sovereignty.  For example, the justification of ultimate authority claims by the EU over specific functional domains does not rely on constituent power or popular sovereignty, the reason of choice in the high sovereignty era, but rather on grounds of functional necessity.  Thus, the paradigmatic EU late sovereignty claim, the claim to the primacy of EU law by the ECJ, was justified, not according to the will of a European people(s) but with reference to the need to achieve the objectives and aims of the EU Treaties.   In this way, the reasons which justify and legitimate late sovereignty claims have expanded beyond popular sovereignty to include what Fritz Scharpf has called ‘output legitimacy’.

Moreover, conventional justifications of ultimate authority in particular contexts have also shifted in the era of late sovereignty.  Whereas the vestiges of high sovereignty are still traceable in the sovereignty claims of EU Member states, they are arguably not unaffected by the transition from high to late sovereignty in Europe.  This is because the conventional justification for sovereignty in a specific national context in the high sovereignty period no longer provides the justification for national sovereignty in late sovereignty.  Two examples of recent EU Member state sovereignty claims serve to illustrate this point; the German Federal Constitutional Courts (GFCC) Lisbon decision and the UK Parliament’s European Union Act 2011, both of which have received attention in previous posts on this blog.

In June 2009, the GFCC handed down its decision on a challenge to German ratification of the Lisbon Treaty of 2008 finding that such ratification would not per se violate the German constitution.  Significantly, the Court found that, notwithstanding the constitution’s ‘openess’ to European integration, that there were absolute limits on the level of integration possible under the German constitution.  The rationale for this conclusion was based on a strong assertion of German sovereignty, references to which were littered throughout the judgment.  In particular the court justified German sovereignty according to the principles of constituent power, popular sovereignty and the self-determination of the German people which created a particularly robust constitutional identity reflected in the provisions of the German constitution.  This identity set absolute limits to the level of integration possible under the constitution.  Nothing, not even the constitutions ‘openess’ to European integration, could undermine this identity.

Similarly, the European Union Act of 2011, can be read to entail sovereignty claims on behalf of the UK vis-à-vis European integration. In particular two features stand out in this regard, the s. 18 ‘sovereignty clause’  which states that EU law falls to be recognised and available in law in the United Kingdom only by virtue of Acts of Parliament as well as the various ‘referendum locks’ triggering a referendum inter alia whenever further powers are transferred to Brussels.  In terms of justifications of these claims to UK sovereignty, the sovereignty clause has been justified according to nebulous references to the common law’s recognition of Parliamentary sovereignty, whereas the referendum locks are implicitly invoking the will of the people and theories of popular sovereignty and constituent power.

On an initial reading, these assertions of national sovereignty by Germany and the U.K. are unremarkable.  They seem to be rather typical assertions of national state sovereignty according to the classic tropes of high sovereignty games.  A closer reading, however, shows that given the context within which they were made, are better understood as forms of late sovereignty claims prompted by the process of European integration.

Firstly, with respect to the GFCC’s Lisbon decision, the assertion of German sovereignty based on the people and a German constituent power marks a shift from the conventional justifications of German state sovereignty in the post-war era.  In the reconstruction of post-war Germany, and particularly in the drafting of the new constitution, the previously unhappy experiences with popular sovereignty based on a constituent power were suppressed in favour of a strong assertion of the rule of law and the supremacy of the constitution over the political process, which was instrumentalized by a powerful Constitutional Court which frequently undid the will of Parliament.  As Christoph Mollers has argued, this was copper-fastened in the basic law itself through an absolute prohibition on the holding of referendums or plebiscites. It was also explicitly recognized by the GFCC itself in the Lisbon decision where it found that:

‘The [post-war constitution] … breaks with all forms of political Machiavellianism and with a rigid concept of sovereignty which until the beginning of the 20th century regarded the right to wage war – even a war of aggression – as a right due to sovereign state as a matter of course’ (para. 199).

Thus, the post-war German constitutional landscape was marked by a ‘constitutional patriotism’ crystallizing around the constitution and the rule of law rather than strong assertions of popular sovereignty or constituent power.  Against this background the justificatory claims of German sovereignty in the Lisbon decision, mark a shift from the constitutional patriotism which has underpinned and justified German sovereignty in the post-war era in the light of the integration experience to an assertion of constituent power and popular sovereignty in the late sovereign period.  Similarly in the UK, the sovereignty clause and the referendum locks in the European Union Act 2011 mark a shift in conventional justifications of UK sovereignty.  Conventionally, UK Parliamentary sovereignty was, as Wade argued, justified according to its social ‘facticity’ rather than by references to the common law as the Ministerial statements surrounding the sovereignty clause seem to suggest (and the Courts have recently supported with gusto).  More strikingly, perhaps, however is the novel justification of UK sovereignty, not based on Parliamentary sovereignty, but by reference to popular sovereignty based on a constituent power as evidenced in the referendum locks.  As Martin Loughlin has argued, the idea of a constituent power is almost completely alien to modern British constitutional practice.  Thus, this shift in the justifications of national sovereignty in Germany and the UK in the face of European integration qualify these claims as ‘late’ rather than ‘high’ sovereignty claims.

Sovereignty is still prevalent in our political vocabulary and is still providing the grammar of the practices of public law.  However, if we scrape beneath the surface, we can see how the grammar of this constitutive concept is itself subtly evolving.  This evolution is essential for understanding constitutional change in the contemporary world.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.   

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Jeffrey Goldsworthy: Parliamentary Sovereignty’s Premature Obituary

At the end of a long review of my book Parliamentary Sovereignty, Contemporary Debates (CUP, 2010, hereafter PS), Vernon Bogdanor concludes that I have “suffered one of the worst fates that can befall a philosopher”: I have “become the prisoner of a doctrine” – that of parliamentary sovereignty (“Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty” (2011) Oxford Journal of Legal Studies 179, hereinafter Bogdanor ). Apparently, self-imposed mental barriers prevent me from perceiving how the British constitution has changed.

What are Bogdanor’s reasons for this conclusion?

First, he puzzles over my claim that at present Parliament “cannot” limit its own substantive powers: is the impossibility a logical or contingent one? Since it cannot be a logical impossibility, he infers that I must mean that “it would be perfectly possible for Parliament to pass immutable laws but there are very good reasons why, as a matter of fact, it has never done so.” On this view, my “conception is a utilitarian one”, and is open to refutation “were it to be shown that the consequences would not necessarily be undesirable.” (Bogdanor,183) But this rests on a misunderstanding of my position. It is true that I believe there are good reasons of political morality for Parliament not being able to limit its own substantive powers, which I discuss in my book (PS, 7, 53-5, 116, 125-9).  But I maintain that Parliament cannot lawfully limit its own substantive powers, because there is currently a fundamental legal rule (a rule of recognition) to that effect, whose existence is constituted by its being generally accepted by legal officialdom. That rule can be changed, but only by a change in official consensus, and not by Parliament acting unilaterally (116, 137-8). That is what I mean by “cannot”.

Secondly, Bogdanor believes that Parliament’s sovereignty has been limited by the European Communities Act 1972 (“EC Act”) (Bogdanor, 182).  He acknowledges my suggested interpretation of the somewhat cryptic Factortame judgment, as construing the EC Act as imposing a kind of “manner and form” requirement that Parliament must use explicit language in order to legislate inconsistently with applicable EC law and with that Act (184). (He does not mention that I also offer two other, alternative interpretations of the judgment that are equally consistent with parliamentary sovereignty as I define it. (PS, 289-90, 296-8)) But he prefers the alternative view put forward by counsel in the Thoburn case, which he says “deserves more consideration than it has so far received.”(Bogdanor, 184)  According to this view, the EC Act altered Britain’s fundamental rule of recognition with the effect that Parliament cannot unilaterally derogate from EC law. Consequently, “national courts would have to apply EC law in preference to inconsistent national law”(185).  “If that is so”, he says, the EC Act limits Parliament’s substantive power. (186)

I freely acknowledge that this is a possible interpretation of the Factortame judgment, as I did in my book where I attributed it to Paul Craig (PS 287).  There, I said that if Parliament can legislate inconsistently with applicable EC laws only if it first enacts legislation withdrawing Britain from the EC, “then the EC Act would have subjected Parliament’s lawmaking power to a limitation of substance”, which “could not be explained in terms of a mere requirement as to the form of British legislation.” (287-8) However, I argued that this interpretation was implausible because “it is the business of the government and Parliament, not the courts, to decide whether or not Britain should abide by its treaty commitments.” (287) In other words, if Parliament were to pass a law that explicitly contradicts applicable EC law, but without withdrawing Britain from the EC, and therefore violates Britain’s treaty commitments, that would be its business, not the courts’. They do not have legal authority to enforce treaty commitments in the face of a statute to the contrary. Nor is there much evidence that, on this point, there has been the requisite change in official consensus for the rule of recognition to have changed, as Bogdanor suggests it has (Bogdanor, 184).  My argument then proceeded on that basis.

It is, of course, possible that the courts would take the opposite view, preferred by Bogdanor. But the fact that I offer reasons for disagreeing with a view that he thinks “deserves more consideration than it has so far received” (184) hardly suggests that I am imprisoned by a doctrine in the sense that I am unable to see beyond it. Nor does the fact that it is a possible view prove that it is the correct one, or that if Parliament’s substantive power have been limited in this respect they must be limitable in other respects as well (186). That is precisely what is in contention.

Thirdly, Bogdanor suggests that Parliament has also succeeded in limiting its substantive powers by enacting what he calls “binding” referendum requirements in s.1 of the Northern Ireland Act 1998 and ss.2-4 of the European Union Act  (‘EU Act’) (187-8). But neither of these referendum requirements strikes me as “binding” Parliament in the requisite sense. This is because they are not self-entrenched: they can be repealed or amended by ordinary legislation, without any referendum being held (PS, 144). I emphasized the importance of self-entrenchment in PS (at 144), and in my written evidence to the House of Commons European Scrutiny Committee, which Bogdanor refers to (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 10; Bogdanor, n38).  It might be argued that they are binding on Parliament until it repeals or amends them (Bogdanor, 189).  But that argument would invite two responses. First, if Parliament were to legislate inconsistently with these requirements – for example, by legislating for the ratification of a treaty covered by s. 2 EU Act without any referendum first being held as required by that section – it is very likely that the referendum requirement would be regarded as repealed pro tanto by implication. That conclusion follows from the principle established in McCawley v R [1920] AC 691 (PC). But say I am wrong about this, and the courts were to hold that Parliament must follow a two-step rather than a one-step procedure, and expressly amend or repeal such requirements before legislating inconsistently with them. My second response is that this would amount to a requirement that Parliament must expressly amend or repeal such requirements, rather than doing so by implication (through the enactment of inconsistent legislation). According to my theory, a requirement that Parliament must expressly repeal or amend a provision is merely a requirement as to form, and not as to substance. This is not a minor, incidental aspect of my theory: it is central to it, and is discussed at length in my book (PS 179-82, 195, 289-90). It forms part of my argument that the EC Act, as construed in Factortame, is consistent with parliamentary sovereignty. Thus, a referendum requirement is perfectly consistent with my conception of parliamentary sovereignty, provided that it is not self-entrenched and can therefore be repealed or amended, whether impliedly or expressly, by ordinary legislation.

Bogdanor continues his discussion of referendum requirements by confusing (as many British writers do) two different arguments that attempt to justify them, which in my book I distinguish: the manner and form argument, and the reconstitution argument (Bogdanor, 189-190; see PS, 139, 155-60, 167, 171-73 and 198-99). The reconstitution argument construes referendum requirements as changing Parliament’s composition, by making the electorate part of Parliament for particular purposes. That is quite different from arguing that Parliament has subjected itself to a requirement governing the procedures or forms by which it must legislate. Bogdanor argues against the reconstitution argument (as I do), but then seems to assume that he has refuted the manner and form argument (Bogdanor, 189-90). Then follow sweeping claims: that Parliament in the EU Act has partially renounced its sovereign power to legislate; that since it has done so on that topic, it could do so on others as well; and therefore that it could gradually bind itself to a whole new constitution. But as I have shown, all this rests on a misunderstanding of the extent to which Parliament has already been able to bind itself. In statutes like the Northern Ireland Act and the EU Act it has not bound its substantive powers in any constitutionally significant sense.

Fourthly, Bogdanor argues that the judges have limited Parliament’s powers: it cannot protect Ministers or public authorities from judicial review, by conferring unfettered discretions or enacting ouster clauses (191).  He asserts that Padfield and Anisminic make this “clear”, although he later says that “there is no case which allows one to confirm this interpretation.” (191, 192) I discuss Anisminic in my book, in a passage that Bogdanor does not mention (PS 285-6). All I can do is repeat what I said there: the House of Lords justified its decision on the orthodox ground of presumed legislative intention, and even if this was a “noble lie”, “the fact that a lie is felt to be required indicates that the judges themselves realise that their disobedience is, legally speaking, illicit” (PS, 286).

Fifthly, Bogdanor argues that if Parliament were to enact a statute subverting the foundations of the rule of law, it is possible that the judges would refuse to obey it. He refers to recent events and judicial statements (such as in the Jackson case) as possibly portending that outcome. It would shatter the official consensus on which (he and I both agree) the doctrine of parliamentary sovereignty has rested, and could lead to a constitutional crisis in which Parliament and the judges disagree about ultimate legal authority (Bogdanor, 193).  His conclusion is that, since the question of what Parliament “can” do depends on the reaction of the courts, and we cannot predict what their reaction would be, it is impossible to say that Parliament “can” enact such a statute (193, 194).

Here again, Bogdanor is confusing what Parliament “can” or “cannot” do in a practical sense, with what it can or cannot do in a legal sense. I would say the following, to any judges who think that if Parliament were to enact a statute subverting the rule of law, they should hold the statute to be invalid.

“There is no basis in the constitution as it currently stands for you to do this: the long accepted rule of recognition gives Parliament sovereign lawmaking power. Therefore, you would be attempting to bring about constitutional change, so that what Parliament can legally do today, it could no longer legally do.

You can attempt such a change, but you cannot plausibly claim legal authority to do so by invoking the theory of “common law constitutionalism” – the theory that parliamentary sovereignty is a doctrine of the common law, which the judges created and can therefore unilaterally modify or repudiate. I have refuted that theory, and judicial support for it in Jackson’s case (such as in the judgment of Lord Steyn) is therefore based on demonstrable falsehoods. Obiter dicta that can be shown to be false should be accorded no authority.

There is no other basis in the constitution for your claiming authority unilaterally to change the constitution in this way. That does not mean you cannot successfully initiate such a change, but it does mean that the political branches of government must be persuaded, inveigled, bamboozled, or bluffed into acquiescing in it. But what if they are not? What if they resent and resist your efforts to change the constitutional rules that were previously accepted, and take strong action to defeat it, possibly including the impeachment of ‘over-mighty judges’? That might be regrettable, but if you tear up the consensus that currently supports the fundamental rules of the system, you are hardly well placed to complain if it is replaced by a power struggle you are ill-equipped to win. In the absence of consensus, your own legal authority as well as Parliament’s would be up for grabs. (This passage is adapted from PS, 55)

 It might nevertheless be a good idea, before such a statute is enacted, for you to hint that you might refuse to obey it. The political branches may be just as concerned as you about the dangers of a constitutional crisis, and they might back down and decide not to enact it (as they did in 2003 when a sweeping ouster clause was withdrawn after protests by senior judges). But no matter how you couch such a threat, do not confuse in your own minds what would amount to judicial disobedience of the law, with the judicial exercise of constitutional authority. One of the practical restraints on Parliament’s exercise of lawmaking power is the possibility that it might not be obeyed. In an extraordinary case judges, like ordinary citizens, might be justified in disobeying a valid statute – and a fortiori, in hinting that they might disobey it. But it simply does not follow that it would be a good idea to abandon the doctrine of parliamentary sovereignty. What would replace it? A rule that the judges can subject Parliament’s authority to whatever limits they see fit (perhaps under the vague label “the rule of law”)? Remember that hard cases make bad laws. It would be better to retain the doctrine of parliamentary sovereignty, subject to the possibility of civil or even official disobedience in extraordinary situations, than to attempt to replace it with a rule of judicial supremacy capable of imposing fundamental constitutional changes on the nation.” (See also J. Goldsworthy, The Sovereignty of Parliament, History and Philosophy (OUP, 1999), 267-71)

Sixthly, Bogdanor argues that the concept of parliamentary sovereignty is of little value in analysing what Parliament can or cannot do. Indeed, the concept creates puzzles that would dissolve if it were abandoned (Bogdanor, 193-4).  He recommends that we simply ask what rules govern Parliament’s composition, powers and procedures; whether they impose formal or substantive limits on legislation; how they are determined; and how they can be changed. The concept of sovereignty, he claims, plays no constructive role in answering these questions (194).

It was one of the purposes of my book to answer most of these questions. It is not clear to me whether Bogdanor disagrees with my answers, or with the way I use the concept of parliamentary sovereignty in arriving at or expressing them. For example, I reject the theory of “common law constitutionalism”, and in his book The New British Constitution (Hart, 2009) he seems to agree with me (at 82-3).

I am extremely sceptical about Bogdanor’s claim that the doctrine of parliamentary sovereignty is now useless for theoretical or practical purposes. For centuries, it has been generally understood that Parliament has sovereign lawmaking authority. This meant that there were no substantive limits to its authority, and it could not subject itself to such limits except by abdicating its authority with respect to territories capable of being excised from its jurisdiction. On the other hand, there was some uncertainty about its ability to subject itself to binding rules as to the procedure for or the form of legislation. A crucial question is: to what extent have recent developments changed these understandings?

A minimalist approach to answering that question, which I favour, construes somewhat cryptic developments, such as the effect of the EC Act as interpreted in Factortame, as altering previous understandings only to the minimum extent that is necessary to accommodate those developments. Factortame can be construed as using the EC Act as a very strong rule for interpreting later statutes, or alternatively, as imposing a binding rule as to the form of later statutes (PS 287-98). The minimalist approach leaves intact as much of the previous understanding as possible, for a number of reasons. An established rule of recognition is constituted by a consensus among legal officials, which it would be dangerous to construe as having radically changed unless there is reasonably clear evidence of the change. To the extent that an established rule of recognition remains unchanged, there is greater certainty about the allocation of constitutional authority, compared with a fluid situation in which it is regarded as having been repudiated but not yet replaced by any clear alternative. Uncertainty about such matters is more likely to cause conflicts between the branches of government. In addition, both of the major theoretical alternatives to orthodox (“continuing”) parliamentary sovereignty (“self-embracing” parliamentary sovereignty, and common law constitutionalism), which authorise either Parliament or the Supreme Court unilaterally to limit Parliament’s substantive powers, could in principle lead to very undemocratic constitutional change (116, 137-140).

Alternatively, a maximalist approach of recent developments can be taken, according to which the doctrine of parliamentary sovereignty is now dead, if not yet buried. But if so, what has replaced it? The problem is that if Parliament is no longer sovereign, almost everything is up for grabs. Bogdanor’s suggestion that we simply ask what Parliament can and cannot now do strikes me as naive. There is no strong evidence that orthodox parliamentary sovereignty has been supplanted by either of the usual alternative theories. As previously noted, Bogdanor does not seem to embrace common law constitutionalism, the theory that it is up to the courts in developing “the common law” to decide what limits Parliament’s powers. Does he, then, embrace the theory of self-embracing sovereignty, the idea that Parliament can limit its own powers in any way it chooses? He would not, of course, approve of the term “sovereignty”, which he does not find useful. But he might still endorse the idea that Parliament has the power to limit its own powers (Bogdanor, 183), notwithstanding the dangers of that idea (PS, 116, 137-138).

Can Parliament – in the legal sense of “can” – limit its substantive powers, such as by enacting a fully binding, self-entrenched, referendum requirement? I say it cannot – unless the rule of recognition is changed. This is a possibility I discuss: indeed, I suggest that if a binding referendum requirement were enacted only after being itself approved in a referendum, this would help to justify and fortify a change in the rule of recognition (PS 139-140). As I put the point in my written evidence to the House of Commons European Scrutiny Committee (to which Bogdanor refers),

“To make it more likely that, in this scenario, the judges would enforce the earlier statute prohibiting the future enactment of legislation without a referendum first being held, that statute should itself be put to a referendum. The support of a majority of voters for such a referendum requirement would greatly add to the strength of the case in favour of its future enforcement notwithstanding Parliament’s later change of mind, indicated by its attempt to legislate without complying with that requirement. This is because obtaining the support of the voters for a requirement that their support be required in the future overcomes a principled objection to the imposition of a referendum requirement by ordinary legislation. The objection is this: if an earlier Parliament can use ordinary legislation to implement its preferred policies, why should a future Parliament not have the same liberty? To put it another way, why should the later Parliament be bound by the expression of a will that has no higher authority than its own will? This is the main justification of the orthodox view that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of a majority of voters in a referendum, the objection is overcome. A future Parliament could then be said to be bound, not by an earlier will of no higher authority than its own will, but by an earlier will that does have such a higher authority – the expressed will of the people.” (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 11; Bogdanor, n38.)

 I am surprised to be accused of having argued myself into a blind alley – becoming imprisoned by the doctrine of parliamentary sovereignty – when I have suggested how, in this way, the doctrine could most legitimately and effectively be superseded. But, until a new constitutional settlement is clearly endorsed by the people, it would in my opinion be dangerously destabilizing to declare that parliamentary sovereignty is dead.

Jeffrey Goldsworthy is a Professor of Law at Monash University 

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Paul Yowell: EU Act 2011: Law and Politics

The European Union Act 2011, which received royal assent in July of last year, could have important implications for several aspects of the UK constitution, including the UK’s relationship with the EU, the understanding of parliamentary sovereignty, the question of ‘manner and form’ restraints on Parliament, and the role of public referenda in the UK. The Act and some of these questions were discussed on this site recently by Mike Gordon. My post will not address parliamentary sovereignty but will focus on precisely what triggers the Act’s requirement that certain changes to EU treaties must be approved by referendum in order to be ratified, and speculate on whether the Act played a role in David Cameron’s decision to veto proposed treaty changes at the EU summit in December.

The main purpose of the EU Act 2011 is to place a ‘referendum lock’ on any further transfers of power from the UK to the European Union. This is how the Conservative Party manifesto in the last election described the proposal that led to the Act. The Liberal Democrats acquiesced to this pledge in the coalition agreement, which promised ‘no further transfer of sovereignty or powers over the course of the next Parliament’, and to ‘amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty’. The EU Act 2011, however, is worded not in terms of transfers of power but in terms of extension of the competence or objectives of the European Union and decrease in the voting power of the UK in certain situations, with an exception for treaty changes that do not apply to the UK. Section 2 of the Act provides generally that treaties amending or replacing existing EU treaties may not be ratified unless the public approves proposed changes in a referendum, and section 3 applies the same rule to ministerial approval under the simplified treaty revision procedure under TEU art. 48(6).  Section 4 describes several situations which trigger the referendum requirements of sections 2 and 3, including:

(a) the extension of the objectives of the EU as set out in Article 3 of TEU;

(b) the conferring on the EU of a new exclusive competence;

(c) the extension of an exclusive competence of the EU;

(d) the conferring on the EU of a new competence shared with the member States;

(e) the extension of any competence of the EU that is shared with the member States;

(f)  the extension of the competence of the EU in relation to—(i) the co-ordination of economic and employment policies, or (ii) common foreign and security policy;

(g) the conferring on the EU of a new competence to carry out actions to support, co-ordinate or supplement the actions of member States;

(h) the extension of a supporting, co-ordinating or supplementing competence of the EU;

(i)  the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body;

(j)  the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom;

(k) any amendment of a provision listed in Schedule 1 that removes a requirement that anything should be done unanimously, by consensus or by common accord …

Describing the Act as applying to transfer of power suggests a simultaneous increase of EU power and removal of UK power; but according to the terms of the Act itself, almost any extension of EU competence, including in areas of competence shared with the member states, is caught by section 4. The areas of shared competence include the internal market, economic and social cohesion, consumer protection, the environment, and other areas listed in TFEU art. 4.

Section 4(4) of the EU Act 2011 provides further that a treaty change ‘does not fall within this section merely because it involves one or more of the following—(a) the codification of practice under TEU or TFEU in relation to the previous exercise of an existing competence; (b) the making of any provision that applies only to member States other than the United Kingdom; (c) in the case of a treaty, the accession of a new member State’ (italics added). If any of the three conditions obtain, the treaty change is not sufficient to trigger the referendum requirement; however, a referendum would not necessarily be excluded in such a situation. Thus the government is not obliged to hold a referendum if it agrees to a change to the EU treaties that does not apply to the UK.

At the summit to deal with the crisis in the eurozone that was held December 7th-9th, EU leaders agreed to proposals to amend the treaties to adopt new rules and procedures promoting fiscal stability and discipline. These included more stringent limitations on sovereign debt and enhanced oversight and enforcement mechanisms, which give greater control over national budgets to Brussels; the fiscal discipline rules are obligatory for eurozone members and optional for other member states. But fiscal discipline is not all that was on the table. At the start of the summit on 7 December, Angela Merkel and Nicholas Sarkozy sent a joint letter to Herman von Rompuy, President of the European Council, outlining a plan that included new financial regulation and taxes. Calling for a ‘new common legal framework’ they stated:

‘We need to foster growth through greater competitiveness as well as greater convergence of economic policies at least amongst Euro Area Member States. To these aims, building on Article 136 and/or on enhanced cooperation, a new common legal framework, fully consistent with the internal market, should be established to allow for faster progress in specific areas such as:

• Financial regulation;

• Labor markets;

• Convergence and harmonization of corporate tax base and creation of a financial transaction tax …’

The agreement that EU leaders signed on 9 December did not explicitly mention regulation or taxes but referred to ‘enhanced governance’ to foster a ‘deeper integration in the internal market’:

‘The stability and integrity of the Economic and Monetary Union and of the European Union as a whole require the swift and vigorous implementation of the measures already agreed as well as further qualitative moves towards a genuine ‘fiscal stability union’ in the euro area. Alongside the single currency, a strong economic pillar is indispensable. It will rest on an enhanced governance to foster fiscal discipline and deeper integration in the internal market as well as stronger growth, enhanced competitiveness and social cohesion.’

It was reported that David Cameron’s chief demand at the summit negotiations was to protect Britain from new financial regulations and restore certain points of regulation to a unanimous voting rule. Under current rules, the financial transaction tax championed by Merkel and Sarkozy is subject to a unanimity rule, giving the UK a veto. Regulation, however, comes under the rule of qualified majority voting.

When his demand was not met, Cameron refused to agree to the treaties, exercising an effective veto, meaning that the proposed changes on fiscal discipline would have to proceed, at least for now, as an inter-governmental agreement rather than as part of the EU treaties. Eurosceptics hailed the veto as bold and prudent and rewarded Cameron with a bump in the polls. (The British public is in a sceptical mood; a recent YouGov survey found that 43% would vote to leave the EU and 36% would vote to stay.) Critics claimed that British diplomatic efforts at the summit lacked preparation and skill, and that Cameron’s veto will prove counter-productive. Under current voting rules Britain has had strong clout and has generally been able to prevent new regulations it opposed. Cameron’s move may usher in a new era in which Britain finds itself in a weakened bargaining position or frozen out of key discussions, as the result of anger at the veto of the treaty in a time of crisis. Sarkozy claimed that Cameron was trying to ‘create an offshore zone in the heart of Europe’. The Economist is broadly sympathetic with Cameron’s aim; a leader titled ‘Save the City’ and accompanying article argue that the greatest threat the City faces is from new regulation (both from Brussels and homegrown). But the magazine concludes that because of the self-defeating nature of the British veto, Cameron’s aim was not so much to protect the City as ‘to avoid having to sell a more integrated Europe to Tory Eurosceptics’.

I would like to venture a somewhat different explanation of Cameron’s veto that figures in the dynamics of the EU Act 2011. Let us suppose that The Economist’s diagnosis is correct: the best way to safeguard British interests with regard to regulation would have been to maintain its clout at the negotiating table; hence it would have been in Britain’s national interest to sign the treaty agreement at the summit’s end, and to reserve that possibility as part of a sound negotiating strategy. The treaty change may well have been a hard sell to Tory Eursceptics; 81 of them rebelled in a backbench motion in December calling for a referendum on Britain’s position in the EU.  But because of the EU Act 2011, Cameron may have been faced not only with persuading his backbench but with the prospect of a mandatory referendum. While the treaty changes regarding fiscal discipline did not apply to Britain, signing the summit agreement would have set in motion a process that could result in extension of EU regulatory power as called for by Merkel and Sarkozy. The documents reflecting Britain’s position at the summit are not public, so we do not know precisely what aspects of financial regulation Cameron was seeking to safeguard with his demand for unanimous voting, or exactly how he proposed to do so. But it seems possible that his demands would have been formulated with a view to avoid triggering the referendum requirement in the EU Act 2011. Such a referendum might well have ended in an embarrassing defeat for Cameron, given the public’s eurosceptic mood. Perhaps Cameron vetoed the treaty in part to avoid the possibility of a referendum under the Act.

Foreign Secretary William Hague is well-acquainted with the details of the Act. He proposed the idea behind it at the Conservative Party conference in 2010, and, when addressing the Commons at the time of the Eurosceptic rebellion, relied on the Act as the centerpiece in his argument against having a referendum on leaving the EU altogether. We can assume that Cameron’s team at the EU summit was monitoring negotiations and proposals for their potential to trigger the referendum requirement of the Act.

Whatever the accuracy of the above speculations about British national interests and Cameron’s motive for the veto, they serve to highlight a potential negative consequence of the EU Act 2011 raised during scrutiny by the House of Lords. Several Lords pointed out that the bill would tie British hands in treaty negotiations. The Act is very broadly phrased to catch virtually any extension of EU competence or objectives unless it applies only to states other than the UK. But the EU treaties already define EU competence and objectives in broad terms, and rely mainly on the principle of subsidiarity in TEU art. 5 to protect member state sovereignty. Given the complex institutional structure of the EU, and the detailed scheme of exclusive and shared competences, it might be in the British interest at a summit to agree to a treaty that nominally extends EU competence in a certain area but also includes restraints or institutional mechanisms that safeguard British concerns. The EU Act 2011, for better or worse, limits the power of leaders and diplomats in such a situation to make decisions and the promises that may be needed to secure concessions, and delegates authority to the people acting through a referendum.

    Paul Yowell is a Lecturer in Law at New College, Oxford. 

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Mike Gordon: The European Union Act 2011

The European Union Act 2011 (EUA) is an unprecedented constitutional experiment.  This post will outline the two main innovations of the Act: (1) the section 18 ‘sovereignty’ clause; and (2) the scheme of ‘referendum locks’ introduced in sections 2, 3 and 6.  Three key questions raised by the EUA for UK constitutional lawyers will then be identified, and some tentative responses to these questions sketched.  The post draws on an article written in collaboration with my colleague Michael Dougan, which is to be published in the February 2012 edition of the European Law Review.

(1)  The ‘sovereignty’ clause

The provision contained in section 18 of the EUA was originally projected to be a ‘sovereignty’ clause, intended to reaffirm the sovereign character of the legislative power of the UK Parliament.  Yet the final text of the provision enacted in the EUA is no ‘sovereignty’ clause at all; instead, section 18 simply confirms the narrower point that the status of EU law within the UK is ultimately dependant on its continuing statutory basis.  In other words, section 18 maintains that EU law is effective and supreme over other domestic norms because an Act of Parliament, the European Communities Act 1972, makes it so.

(2)  The ‘referendum locks’

The ‘referendum locks’ introduced in sections 2, 3 and 6 of the EUA form part of a broader system of control over the making of various decisions related to the EU.  While the Act provides that some categories of decision must be approved by Act of Parliament (see e.g. section 7), and others merely subject to Parliamentary Approval (see e.g. section 10), the ‘referendum locks’ are the EUA’s most demanding control mechanism.

The locks provide that certain decisions can only be lawfully authorised by an Act of Parliament which makes the subsequent effectiveness of the decision contingent on whether it has been approved by a majority of the electorate voting in a referendum.  The range of situations in which the EUA requires a referendum to be held to authorise action to be taken in relation to the EU is remarkably broad.

Section 2 covers any treaty amending or replacing the existing EU Treaties, although a treaty which does not transfer power or competence from the UK to the EU, in accordance with section 4 of the EUA, will be exempt from the requirement that a referendum be held.  Section 3 covers changes to the existing EU Treaties made using the ‘simplified revision procedure’ under Article 48(6) TEU, although again, a referendum may not be required if the treaty is exempt from the criteria set out in section 4, such that power or competence is not transferred from the UK to the EU.  In relation to section 3 only, a significance test may also be applied in relation to some specific types of transfer of power or competence, with those that are not significant to the UK failing to attract a referendum under the Act.

Section 6, in contrast, sets out a series of trigger events, which will automatically require approval by Act of Parliament and at a referendum.  Most of these trigger events relate to changes in the EU’s voting rules – in particular, certain extensions of QMV – but a number of specific decisions which would significantly affect the UK-EU relationship (such as joining the euro, the removal of border controls under the Schengen Protocol, or participation in a European Public Prosecutor’s Office) would also attract a referendum under section 6.

Three Key Questions Raised by the EUA

The two elements of the EUA highlighted above clearly raise a number of important constitutional issues, for section 18 seeks to clarify the status of EU law within the UK, while the scheme of referendum locks contained within the Act purports to ensure that future transfers of power or competence to the EU from the UK will take effect subject to approval at a national referendum.  Yet there are three key questions which are worthy of particular attention.

 (i)   What is the impact of the EUA on the sovereignty of Parliament?

When the changes incorporated in the EUA were first proposed, it might have been thought that section 18 would have been of greater importance to our understanding of the current status of the doctrine of parliamentary sovereignty.  After all, section 18 was to be a ‘sovereignty’ clause, and could have required a range of interesting problems to be confronted.  Could a sovereign Parliament legislate to confirm its own sovereignty?  What practical effect would such a clause have on the courts and other constitutional actors?

Yet in its ultimate incarnation, section 18 raises few such issues; indeed it tells us little we did not already know from the famous judgment of Lord Bridge in Factortame (No. 2) [1991] 1 A.C. 603.  Section 18 implies that Parliament remains sovereign, for the domestic supremacy of EU law fundamentally depends on an Act of Parliament.  If this is the case, section 18 seems to invite us to infer, the supremacy, and indeed effectiveness, of EU law within the UK could be withdrawn by an Act of Parliament.  This is, however, far from revolutionary, and section 18 arguably therefore emerges as a useful reminder at best, and somewhat of a distraction at worst.

More controversial by far are the EUA’s referendum locks.  For here, it seems, is a Parliament moving away from Dicey’s constitutional orthodoxy, and attempting to bind its successors as to the manner and form of future legislation.  Whether the referendum locks will be viewed as legally binding ultimately depends on what perspective is taken:  those who follow Wade’s line that Parliament cannot alter the political fact of its sovereignty will believe such statutory conditions to be unenforceable, whereas those who are persuaded by Jennings and Heuston’s alternative understanding of legally unlimited legislative power may be convinced that Parliament has made a valid alteration to the future law-making process.

It is not easy to predict which view will prevail.  Nevertheless, the rhetoric surrounding the Act – in particular the very language of ‘locks’ – coupled with the failed attempt to insert a sunset clause into the legislation as it passed through the House of Lords (which implies that such a clause would have be needed to cause the referendum requirements to lapse) provides some evidence that the government may have induced Parliament to bind its successors to an altered future manner and form, even if this was not explicitly acknowledged.  Perhaps, then, the EUA can be seen as building on the decision of the House of Lords in Jackson [2005] UKHL 56, and confirming a modern shift to the manner and form understanding of parliamentary sovereignty.

Of course, even if this is accepted, it is crucial to note that the EUA’s referendum locks will only bind future Parliament’s for as long as they remain on the statute book.  These locks are in no sense entrenched, and could doubtlessly be expressly repealed in a future Act.  Nonetheless, the political cost of so doing may be high, due, for example, to the difficulties inherent in justifying to citizens the removal of legal rights to popular participation.  And it is for this reason that it will still be important to establish whether or not the EUA’s referendum locks can be reconciled with the sovereignty of Parliament; if they cannot, and the manner and form conception of the doctrine is rejected, the locks can be readily disregarded by future governments, as they will be impliedly repealed by any Act of Parliament authorising action in relation to the EU that the EUA would otherwise purport to control.  For a government to adopt such a strategy would be risky, creating considerable uncertainty pending the outcome of any legal challenge, while potentially appearing disingenuous to the public, and as such, it might be prudent for a manner and form understanding of the EUA to be embraced on pragmatic grounds.

(ii) What will be the impact of the EUA on the UK-EU relationship?

It is difficult to predict what impact the EUA will have on the relationship between the UK and the EU, but a number of factors suggest that this impact is not likely to be positive.  The system of referendum locks introduced by the EUA goes much further than any equivalent regime in any other Member State.  To some extent, then, the UK has set itself up as an exception in comparison to its fellow EU members, a fact which is unlikely to win the UK friends in Brussels if the effect of the locks is to obstruct future reform.  Such obstruction could occur through a failure to win a required referendum in relation to a specified revision of the EU Treaties, or a government simply refusing to agree to proposed changes to avoid even holding a referendum in the first place.

Indeed, while potentially disruptive to the EU, it is not hard to see why a future government would adopt such an attitude.  The EUA might require the holding of referendums on a range of esoteric issues (a referendum would need to be held, to give one example, to allow the Council to act by qualified majority, rather than unanimously, when making changes to the list of military products exempt from internal market provisions pursuant to Art 346 TFEU).  It would be very difficult even for well informed citizens to engage with such issues, and it is therefore possible that the outcome of the referendums would be determined by a smaller number of groups and individuals with strong preordained views about the EU.  Perhaps any such referendum would essentially morph into an ‘in-or-out’ referendum on the EU – a matter which, surprisingly, the Act does not provide for.

It thus remains to be seen whether the EUA will contribute to the UK becoming sidelined within the EU.  Yet with the government seemingly willing to veto revision of the EU Treaties even where the Act’s referendum locks would not have been legally engaged – as would appear to be the case in relation to the UK’s refusal to agree at the negotiations in Brussels in December 2011 to a revision of the EU Treaties to incorporate a ‘fiscal compact’ among other things – the EUA could well exacerbate the UK’s increasing isolation.

(iii)        What does the EUA tell us about the place of referendums in the UK constitution?

The EUA offers further evidence of the growing importance of referendums in the UK constitution.  Referendums are clearly a versatile democratic tool, having recently been used to give citizens an opportunity to determine whether to adopt the AV voting system for elections to the House of Commons (and simultaneously enabling a political disagreement between coalition partners to be bypassed), while a referendum of some kind on Scottish independence, effecting the right to self-determination, looms on the horizon.  In the EUA, in contrast, referendums are used as a ‘lock’, to inhibit the freedom of action of the government of the day in particular, but also to block the extension of the power and competence of the EU with respect to the UK (and perhaps even the expansion of the EU more generally).

The value and importance of the referendum as a constitutional device can thus be recognised, while nevertheless acknowledging genuine concerns about the use made of the mechanism in the EUA.  The scope of the EUA’s referendum locks can be criticised as excessive:  this could produce voter fatigue if frequent referendums are held on marginal issues.  If turnout to vote in such referendums is low, the legitimacy both of the actual decisions reached, and direct democracy more broadly, could be questioned.

Further, it is not altogether clear why the UK’s relationship with the EU is singled out for special treatment –  if referendums are to be guaranteed here, should they not also be guaranteed in relation to fundamental changes to the UK’s own internal constitutional arrangements?  While the focus on the UK-EU relationship can be explained by party political preoccupations, this does not mean it is justified.  Ultimately – as with all matters discussed in this post – it will take time to discern the impact of the EUA on UK constitutional practice relating to referendums.  Yet the fact that the EUA does not make good use of referendums should be seen as a flaw of the Act, and not of direct democracy itself.

 

Mike Gordon is a Lecturer in Law at Liverpool Law School, University of Liverpool

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