Mike Gordon: After the General Election: An EU Referendum and the EU Act?

mike-gordon-pictureWhile we await publication of the political parties’ manifestos, there can be no doubt that the UK’s membership of the EU will be a key issue in the fast-approaching (if not already underway) 2015 general election campaign. Much of the debate will focus on the question of whether a referendum ought to be held on the UK’s continuing membership of the EU, and if so, when such an ‘in-out’ referendum ought to be held.

The position of the Conservative party is well established: an ‘in-out’ referendum should be held in 2017, following (attempted) renegotiation of the EU treaties, to provide an alternative vision of the UK’s future (scaled-back) relationship with its European partners. Yet given all indications are that the forthcoming election will produce a second consecutive hung Parliament, with no party likely to emerge with a majority of seats in the House Commons, some post-election wrangling as to the composition of the next government can be expected. And whether the goal is to negotiate a substantive legislative agenda around which a coalition government might be formed, or a confidence and supply deal to sustain a minority administration in office, it is easy to imagine that discussions between a number of parties might be animated by the prospect and timing of an ‘in-out’ EU referendum (see e.g. the recent posturing of UKIP, indicating that the price of its support will be an ‘in-out’ referendum held on an expedited timetabled, later this year).

Yet what seems largely lost in such discussion is a product of post-election wrangling between prospective coalition partners following the previous general election in 2010: the European Union Act 2011. This post will briefly map the relationship between the EU Act 2011 and a potential ‘in-out’ referendum on the UK’s EU membership, highlighting some key choices which may arise in this context after the 2015 general election, the necessity of engaging with these choices, and how such an exercise could prove beneficial.

The Basic Relationship

The EU Act 2011 makes detailed provision requiring referendums to be held to approve a range of specified changes to the UK-EU relationship, seeking to cover, in very broad terms, transfers of power or competence from the UK to the EU. Given the breadth of the ‘referendum locks’ imposed by the EU Act, the creation of which in and of itself is an unprecedented constitutional experiment, it might be thought surprising that the legislation does not make provision as to the necessity of a referendum prior to any decision to leave the EU. While there can be little doubt that a referendum would politically be essential to approve any government decision to withdraw from the EU (with the 1975 referendum on continuing EU membership setting a crucial precedent in this respect), there is no legislative mechanism presently in existence requiring, or perhaps more importantly, allowing for, this possibility.

As such, new legislation would be required to make provision for an ‘in-out’ referendum on EU membership to be held at some stage in the next Parliament, in line with the established constitutional practice that the holding of a referendum in the UK will be authorised by statute (for example, the Referendum Act 1975 for the EU membership referendum, the Referendums (Scotland and Wales) Act 1997 and Northern Ireland (Entry to Negotiations, etc) Act 1996 for the New Labour devolution referendums, the Parliamentary Voting System and Constituencies Act 2011 for the AV referendum, and the Scottish Independence Referendum Act 2013 for the recent independence referendum).

A number of significant issues would need to be confronted in the process of reaching substantive agreement as to the content of such legislation. Such headline grabbing questions would include those relating to timing (a ‘snap’ referendum, or one following a period of negotiation with European stakeholders?), the definition of the electorate (has the Scottish independence referendum set a precedent for the inclusion of voters aged between 16 and 18? Would EU citizens resident in the UK be permitted to vote?), and the framing of the question (simply ‘in’ or ‘out’, or something more elaborate?). But a further question would be of underlying constitutional significance: how would this new legislation fit with the existing, and extensive, statutory scheme? What approach – if any – would new legislation providing for an ‘in-out’ referendum to be held take to the EU Act?

Engaging with the EU Act: Some Options and Issues…

Perhaps the most obvious option for engaging with the EU Act would be superficially straightforward: legislation providing for an ‘in-out’ referendum might simply ignore the existing statutory framework entirely. There would be no legal barrier to so doing, for, as made clear above, the EU Act does not purport directly to cover this territory. And if the result of the referendum was to withdraw from the EU, the 2011 Act would effectively become null (and no doubt be repealed explicitly as part of the legislative arrangements subsequently made to effect the UK’s departure from the EU), because there would be no prospect of the transfers of power or competence from the UK to the EU which it seeks to control actually occurring.

Yet if the result of the referendum was to remain in the EU, the position would be more complex, and open to debate. The status of the EU Act in such circumstances would depend to a significant extent on what the purpose of the legislation was taken to be. If the EU Act is seen as an enduring scheme designed to condition the UK-EU relationship, and in particular establishing in law a set of expectations about the democratic character of the decisions taken to authorise changes to that relationship, then there is a credible argument that the 2011 Act could and should persist unaffected. The EU Act would remain on the statute book, and the referendum requirements which it imposes would continue to be applicable to changes to the future UK-EU relationship which fall within its scope.

However, if the EU Act is instead seen as a legislative proxy for an ‘in-out’ referendum, it might alternatively be argued that the 2011 Act would have outlived its primary purpose. Such an interpretation of the EU Act would explain the extensive scope of its legislative ‘referendums locks’, and the absence of a specific provision dealing with withdrawal from the EU – any referendum envisaged by the EU Act, even one designed to be triggered to approve esoteric changes to EU voting arrangements concerning relatively narrow subject matters, would be considered to be an ‘in-out’ referendum, with broader debate about the advantages and disadvantages of the UK’s continuing membership displacing more targeted discussion of the merits and demerits of the specific change(s) directly in issue. Yet had the UK’s continuing membership of the EU been explicitly approved in a national referendum, the appropriateness of repeating (potentially repeatedly) this exercise implicitly would be open to challenge.

As such, if the 2011 Act was indeed intended to serve as a proxy for a then unobtainable ‘in-out’ referendum, rather than ignoring the EU Act in future legislation making direct provision for a referendum on continuing EU membership, it might be preferable for the Act there to be repealed. After all, the objective of deciding at a referendum whether the UK should remain in the EU would then have been achieved, and this having been democratically settled, it might be thought right for the potentially disruptive effect of the EU Act to be removed, providing a greater level of stability as to the future UK-EU relationship.

The Status of the EU Act: Legally Futile?

Yet in reviewing this range of potential options, are we assuming too much? To discuss how the EU Act might best be engaged with if an ‘in-out’ referendum is to be held following the general election is of course to presume that the 2011 Act must be engaged with at all. This is, however, likely to be a matter for debate among constitutional lawyers, with defenders of Dicey’s orthodox mantra that a sovereign Parliament cannot ‘bind its successors’ liable to suggest that the EU Act’s referendum requirements are, in any event, legally invalid and entirely susceptible to being disregarded. I have argued at length elsewhere that this view cannot be sustained, and, instead, that the enactment of the EU Act is the culmination of a pattern of constitutional activity which confirms a shift in our understanding of the legislative power of the UK Parliament. Parliament remains sovereign – in the sense that it is capable of enacting legislation on any subject whatsoever as a matter of law – but this legally unlimited law-making authority should be understood to include the power lawfully to alter the future law-making process (or the ‘manner and form’ in which legislation must be enacted to be legally valid) itself. On this approach, the EU Act can be viewed as the result of the exercise of such law-making power, rather than a form of legislative wishful thinking, the legal and constitutional effects of which have no bearing on future statutory engagement with the issue of EU membership.

Yet if the EU Act were to be ignored in making provision for an ‘in-out’ referendum to be held – which is clearly possible, even if a potential source of subsequent complexity, depending on the outcome of such a referendum – would the force of such claims as to the contemporary salience of the ‘manner and form’ understanding of parliamentary sovereignty in the UK constitution be diminished? Could it be taken as reaffirmation of the constitutional orthodoxy that Parliament simply cannot bind its successors?

While some may be tempted to draw such a conclusion, this would not be well founded. For even if the EU Act were ultimately to be rendered moot by a decision taken to leave the EU at a future ‘in-out’ referendum, this would not mean the referendum locks were inherently legally ineffective. Indeed, while a range of evidence can be used to sustain a manner and form analysis of the EU Act – from the attitudes of the various political parties, to the way the Act has subsequently been complied with, alongside issues of constitutional principle – a recent decision of the Administrative Court seems clearly to illustrate this point. For in Wheeler v Office of the Prime Minister [2014] EWHC 3815 (Admin), a challenge to the legality of the government’s decision to rejoin the European Arrest Warrant scheme, claims that a referendum was required to approve such action in accordance with section 6 of the EU Act 2011 were rejected by the court, and permission to apply for judicial review refused.

Crucially, though, the entire judgment of Sir Brian Leveson, the President of the Queen’s Bench Division, is premised on the implicit notion that the EU Act 2011 has established a scheme of referendum locks that are legally effective, with the argument advanced for Wheeler failing because it fell outside the scope of the Act as literally construed. While the court made no comment as to the broader constitutional issues potentially raised by such an approach to the 2011 Act, it was clear that ‘[i]n our judgment, [the EU Act] provides, by section 6, for a detailed series of circumstances which, on the occurrence of any of them, the requirement for both primary legislation and the fulfilment of the referendum condition will be triggered’ (at [29]). In this context, the express provisions of the Act were to be applied, and if satisfied, would produce a legal consequence: ‘[t]he issue is not whether a ‘transfer of sovereignty’ is involved in some imprecise and general sense; rather, the issue is whether what is proposed falls within section 6(3), section 6(5)(c) or section 6(5)(d) of the 2011 Act. If it does, the referendum condition must be fulfilled; if it does not, there is no requirement under this statute to hold a referendum’ (at [30]).

As such, we can – and indeed should – view this Act as legally effective, and therefore recognise that any attempt to sidestep the potentially difficult issues raised by the interaction between the EU Act and subsequent ‘in-out’ referendum legislation by simply ignoring the problem would be short sighted. It may be the case that, on one potential outcome of such a referendum on continuing membership of the EU, to seek to anticipate the future place of the EU Act in the statutory arrangements regulating the UK’s relationship with Europe would be ultimately unnecessary. But given the outcome of any ‘in-out’ referendum would be inherently unknowable at the time of the enactment of legislation enabling such a vote to be held, and the potential complexity which might result, it would surely be preferable to try to address the future position of this existing statutory scheme in advance.

This is not to prescribe what form that engagement should take – whether through determining consciously to leave the EU Act unamended, or choosing to repeal it (or elements of it) – but simply to suggest that attention should be given to the question of how this statutory scheme of standing referendum requirements might be (re)constructed, in the event that an ‘in-out’ referendum is to be held after the general election, and in the event that the outcome of that referendum is to remain in the EU.

And in so doing, we might be forced more clearly to establish what the purpose of the EU Act 2011 actually is – or indeed, perhaps to learn what it was.

Dr Mike Gordon is Senior Lecturer in Law at Liverpool Law School, University of Liverpool.

(Suggested citation: M. Gordon, ‘After the General Election: An EU Referendum and the EU Act?’ UK Const. L. Blog (2nd Apr 2015) (available at http://ukconstitutionallaw.org))