UK Constitutional Law Association

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Sionaidh Douglas-Scott: Constitutional Implications of a UK Exit from the EU: Some Questions That Really Must Be Asked

Sionaidh-Douglas-ScottThe issue of a UK withdrawal from the EU is highly topical at present, and several aspects of a UK exit – such as its impact on the devolved nations, or the relationship of an exit referendum with the EU Act 2011, have already been discussed on this blog. This post mainly addresses other constitutional aspects of a UK exit – for example, the impact on domestic law of the repeal of vast swathes of EU law currently in force in the UK, and the impact of an EU exit on the acquired rights of EU citizens – but it also starts by highlighting some issues concerning a referendum on continued EU membership that are too critical to be ignored.

 1. A referendum on continued UK membership of the EU

It is assumed that a UK exit would be preceded by a referendum. Although referenda are becoming more established features of our constitutional landscape, the issue of a referendum on EU membership prompts a swathe of questions.

First, it is essential that an unbiased question be put to the electorate. Recently proposed texts, in Private Members’ Bills on the subject of an EU referendum, do not appear to satisfy this requirement, in apparently loading the question toward a particular response. For example, the Electoral Commission suggested replacement of the question ‘Do you think that the United Kingdom should be a member of the European Union?’ with ‘Should the UK remain within the EU?’ in the latest Private Members Bill to deal with this issue.

It is also essential that both sides adequately define their position – particularly those who advocate an alternative to the status quo – so the electorate can be clear about what they are actually voting for. If Britain is to leave the EU, is EFTA (European Free Trade Association) or EEA (European Economic Area) membership proposed – i.e. a relationship with the EU like that of Norway, or Switzerland? If not that, then what? How is EU spending on the UK in matters such as agriculture, the regions and research to be replaced?

Further, there is the question of the franchise. Would 16 and 17 year olds be able to vote, as in the Scottish independence referendum? Would EU and Commonwealth citizens living in the UK be included in the franchise? And what of the great number of British citizens living elsewhere in the EU who would lose EU citizenship if the UK withdrew – should they have a vote in the referendum?

What threshold should be required for a referendum result to be decisive – and should this threshold apply in each of the devolved nations, as Nicola Sturgeon has argued, so a vote in favour of exit in England only would not be decisive? Should the threshold be that of a majority of votes cast, as in the Scottish independence referendum, or should it require attainment of the tougher target of a certain percentage of the actual electorate eligible to vote, as was the case in the 1979 UK Devolution referenda?

What if the House of Lords refused to pass a Referendum Bill? It seems there is unlikely to be a majority government after the next election, so the Salisbury convention, whereby the House of Lords will not vote down a Bill resulting from a party’s election manifesto (a referendum on continued membership of the EU is currently a manifesto commitment only of the conservative party and UKIP) may not apply. Therefore if the House of Lords voted down such a Bill (which they have done in the case of the 2013-2014 Private Members’ EU referendum Bill) the Parliament Acts would have to be used, so the Bill could be adopted without their consent. But there is authority to suggest that the Parliament Acts cannot be used for constitutionally significant matters (although the 1911 Parliament Act was employed to adopt the Government of Ireland Act 1914 in order to bring Home Rule to Ireland). In the 2005 Jackson case in the Court of Appeal (heard by the Lord Chief Justice, Lord Woolf; the Master of the Rolls, Lord Phillips; and Lord Justice May), that court held that ‘the greater the scale of the constitutional change proposed … the more likely it is that it will fall outside the powers contained in the 1911 Act.’

This is just a quick round up of some of the most important issues surrounding a referendum on EU membership. If there is pressure to hold an exit referendum as quickly as possible, as some politicians wish, these issues are unlikely to be given the time and thought that they require.

2. Constitutional mechanisms of withdrawal

So much for the Referendum itself – that would just be the first step to a UK withdrawal.

Since the 2009 Lisbon Treaty, there has existed a formal procedure whereby member states may voluntarily exit the EU, and it is set out in Article 50 of the Treaty on European Union (TEU). This procedure requires negotiations between the EU and the state concerned, and a formal agreement for withdrawal. The exiting state is released from EU obligations either on entry into force of the withdrawal agreement, or two years after its notification to the European Council.

Although such a mechanism exists, this does not mean negotiations between the EU and UK would be uncomplicated, but the problems and pitfalls of such negotiating is a matter for another post. What, however, should also be made clear is that the process of domestic disentanglement from EU law would by no means be straightforward, nor would it mean a direct return to the status quo existing before the UK joined the then European Economic Community (EEC) in 1973. EU law is part of UK law and its adoption has given UK citizens, companies and public authorities rights and duties – repealing or amending them would be a complex and demanding process.

There are various steps to this. Art 50 TEU provides that on withdrawal, the Treaties ‘shall cease to apply to the State in question’. But in order to ensure this domestically, any UK-EU withdrawal agreement would need to be implemented by Act of Parliament. The European Communities Act 1972 (ECA) would have to be repealed or amended, and other primary legislation implementing EU law would have to be repealed if the Government did not want it to form part of national law.

A pressing issue is how the Government would manage the thousands of EU provisions that have become part of UK law. It would not be desirable to repeal it all, and indeed to do so would leave large gaps in UK law. EU law derives from various sources – from EU treaties, and from regulations and decisions, as well as judgements of the European Court of Justice. But in short, there are three different types of law to consider.

First, there are directly applicable EU laws – namely, EU regulations and certain provisions in the EU treaties. These have automatically become part of UK domestic law by virtue of section 2(1) ECA 1972, which requires that directly applicable EU law is ‘without further enactment’ incorporated and binding in national law without the need for a further Act of Parliament. Should the ECA be repealed, these would all automatically expire and no longer be part of UK law. This could lead to unfortunate consequences and undesirable gaps in domestic law, especially in areas in which the EU has exclusive competence (for example, licensing of medicines or anti-dumping mechanisms) and it would be essential to introduce domestic law to replace EU law to fill these gaps.

Secondly, there exist many Acts of Parliament implementing EU directives or other EU obligations, which are not directly applicable. Decisions would have to be taken on an individual basis as to which of these statutes should be retained, repealed, or amended.

Thirdly, many UK statutory instruments – rather than primary legislation – have also been adopted under section 2(2) of the ECA in order to implement directives. If the Government wished some or all of these to remain in force, it would need to introduce a new enabling power in parent legislation, as they would lose their legal effect on repeal of section 2(2) of the ECA.

As is evident, overseeing and managing all of this legislation at the time of transition would be complex in the extreme. Perhaps unsurprisingly therefore, suggestions have been made as to how the process might be simplified. For example, Martin Howe QC, who helped draft the Conservative Party’s Bill for a UK Referendum on the Lisbon Treaty, has suggested:

The best solution would be simply to press into service the existing regulation-making power under section 2(2) of the 1972 Act and extend it so that it can be used to allow existing Acts and regulations which implement EU obligations to be repealed . . . or replaced as appropriate with or without changes after exit. (M. Howe QC, Zero Plus: The Principles of EU Renegotiation (Politeia, 2014) at 7.)

Let us be clear what is being suggested here. This is the approach taken by the successive EU Withdrawal Bills introduced by Lord Pearson of Rannoch from 1997 to the present. It requires the use of a ‘Henry VIII’ clause, namely the achievement of a major objective through statutory instrument, i.e. a provision in a Bill that enables primary legislation to be amended or repealed by subordinate legislation, with minimum Parliamentary scrutiny.

For example, when Lord Pearson first introduced such an EU Withdrawal Bill in the House of Lords in January 1997, he stated that:

I am aware that many … will regard this as a fairly massive Henry VIII clause, and I share your Lordships’ well-known dislike of Henry VIII clauses. But I do not see [this] as a Henry VIII clause so much as what I would prefer to call a “Moses” clause. I call it that because it would allow the Government to lead our people out of the captivity of the Treaty of Rome and to regain the sovereignty of this Parliament, that priceless right to self-governance for which the British people have sacrificed so much over the centuries … (European Communities (Amendment) Bill, HL Deb 31 January 1997 vol. 577 cc. 1329-428 (italics added)).

In the same 1997 House of Lords debate, Baroness Shirley Williams said that she found this aspect of the Bill ‘disturbing’, declaring it ‘a profoundly unparliamentary and undemocratic way to bring about changes in legislation.’

This is indeed disturbing. EU law has created vast networks of rights and obligations, not only between Member States, but also for nationals of those States. There exist vested rights for EU citizens in the UK and for UK citizens in the EU. The subject matter of these rights – e.g. social policy, discrimination law, or fundamental rights – covers many matters central to individual liberty, and their repeal or amendment, even by means of primary legislation, would be highly controversial. The proposed use of a Henry VIII clause to abolish many of these rights en bloc, with minimal or no parliamentary scrutiny, undermines fundamental rights, but is also undemocratic and detrimental to the parliamentary sovereignty that those who wish to leave the EU are so fond of proclaiming (because repeal, retention or amendment by statutory instrument removes chances for parliamentary debate, limiting action instead to the Executive).

As if this were not enough, the need, were the UK to withdraw from the EU, to manage the vast swathes of EU law currently part of UK law also prompts further questions. For example, if some EU law is retained in domestic law post-withdrawal, what would be the mechanisms used to interpret it? Would UK courts revert to pre-1972 understandings of UK law, or would they continue to look at EU law and decisions of the European Court of Justice to interpret British law? Would there be a desire to remove the last vestiges or ‘taint’ of Europeanness from UK domestic law, and if so how?

3. Further questions regarding rights and values

A. Vested rights

However, further investigation suggests that it would not be so easy to dispense with EU rights – whether by Act of the UK Parliament, or statutory instrument. The presence of Article 50 TEU acknowledges that the EU treaties have established vast systems and structures of rights and obligations, and thus the need for an orderly process for state withdrawal from the EU. These rights and obligations exist between member states, but also with regard to the nationals and companies of those States. The European Court of Justice (ECJ) stated as long ago as 1963 in the van Gend case that such rights are part of individuals’ ‘legal heritage.’ Such acquired rights and mutual dependencies cannot be immediately and directly extinguished.

For example, nationals of other EU member states currently have directly enforceable EU law rights in UK courts regarding matters such as free movement of workers, free movement of goods, and freedom of establishment. UK nationals possess corresponding rights in other Member States. If the UK’s EU membership were terminated it is undesirable that these individuals become illegal immigrants, or, for example, that Erasmus students should become ‘foreign’ students. Withdrawal from the Common Agricultural Policy would cause disturbance to UK farmers. Similar issues would be encountered regarding projects, or joint ventures, such as those in the field of research, which are funded by the EU’s long-term programmes.

A pragmatic solution suggests that the EU and UK would negotiate a transitional period, in order to manage issues such as these – and indeed such arrangements were made in the case of the only (to date) example of withdrawal from the EU – that of Greenland in 1985 (Status of Greenland: Commission opinion, COM (83) 66 final, 2 February 1983, at 12). On the other hand, it is questionable to what extent the Greenland example sets a precedent, given the very different circumstances and much smaller population of Greenland, and most importantly, the fact that Greenland was not itself a member state, but only part of Denmark, which remains an EU member state. Greenland’s exit did not dictate any changes of substance to the EU treaties. Further, Article 50 TEU itself is silent on the content of any future agreement between the EU and UK, nor does it suggest that the EU would be obliged to conclude an alternative trade relationship, such as those it has with Norway, or Switzerland.

In any event, even in the absence of transitional arrangements, EU law provisions on legality and legal certainty could be relevant and might require EU Institutions, member states and the UK to agree on the protection of acquired rights. Legal certainty has been recognised as a general principle of EU law by the ECJ. Legal certainty imposes various requirements, including that law should not have retroactive effects, that acquired rights be protected and that legitimate expectations should be preserved (D. Edward, R. Lane. Edward And Lane On European Union Law (Edward Elgar, 2013), at 397). Furthermore, more generally, international law demands that acquired rights should be respected (Arts. 65 to 72 of the Vienna Convention on the Law of Treaties). Sir Gerald Fitzmaurice has written that: ‘It is an accepted rule of treaty law that the termination of a treaty … cannot per se affect or prejudice any right already definitively and finally acquired under it, or undo or reverse anything effected by any clause of an executed character in the treaty.’ (G. Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge University Press, 1986)).

Therefore, if the UK exited the EU without making transitional arrangements, both EU law and international law more generally might be drawn on in order to protect executed, or acquired, rights that had become vested.

B. Rights, values and the UK Constitution

The EU has had an impact on UK law in other ways that would be hard to extinguish, even in the event of complete withdrawal. The economic nature of the EU and the importance of the Single Market should not eclipse the fundamental issues that inspired the original EEC in the post-war period, namely a search for peace and stability in Europe and the protection of democratic values. Already in 1974, Pierre Pescatore, then Luxembourg judge at the European Court of Justice, identified the essence of supranationality as located in an ‘idea of order determined by the existence of common values and interests’ (P. Pescatore, The Law of Integration (Leiden, Sijthoff, 1974), Preface). The European Court in the ground breaking case van Gend stressed the importance of rights over fifty years ago, and in 2008, in Kadi, the European Court stated that respect for fundamental rights is an integral part of the EU legal order. Article 2 TEU states that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.’

Arguments based on such values may not be compelling to eurosceptics, but it is undeniable that EU law has been a vehicle for important developments in national law that have been driven by European principles of freedom, equality and fundamental rights more generally. UK Constitutional law looks very different now from the way it did in 1973, and part of this is due to EU membership and its impact on UK law – whether on parliamentary sovereignty, judicial review (for example, through the incorporation of the proportionality principle) or the necessity to recognise and enforce individual rights in domestic law. The EU has been described as a process of integration and transformation through law (M. Cappelletti, M. Seccombe and J.H.H. Weiler, International Through Law: Europe and the American Federal Experience, 3 vols. (Berlin/New York: de Gruyter, 1985)), and it has in turn aided the transformation of the unwritten, political, British constitution toward something more legal in nature. Transformation through law is not (only) a bureaucracy of lawyers and legal rules, but also the recognition of the individual’s enforceable, fundamental rights, derived from the Charter of Fundamental Rights and EU treaties, many directly effective. These, along with the European Convention on Human Rights and its progeny the Human Rights Act (also under threat of course), have, despite the protests of the tabloids, empowered many individuals. In the absence of these important European sources of fundamental rights, what form would rights protection take in the UK? So far, attempts at specifically ‘British’ Bills of Rights have failed. Would British judges look instead to develop common law rights as some have suggested? But would the common law be able to fill in the gaps created by termination of EU membership?

So let us not forget that, were the UK to withdraw from the EU, this would have a definitive and tangible impact on individuals, and their rights, as well as on more technical areas of law. This post has argued that serious detriment and havoc will be caused to the British Constitution in the process. If such constitutional disarray is to be provoked, it is essential that the questions put in this post be given serious consideration.

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

(Suggested citation: S. Douglas-Scott, ‘Constitutional Implications of a UK Exit from the EU: Some Questions That Really Must Be Asked’ U.K. Const. L. Blog (17th Apr 2015) (available at http://ukconstitutionallaw.org))

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