affiliated to the International Association of Constitutional Law
So, we have the result of the Referendum, and a majority of voters have voted to leave the EU. A mantra of Leave campaigners seems to have been the desire to ‘take back control’. There has been much talk of sovereignty, although less clarity on what it actually means. However, at its most basic, there are at least three notions of sovereignty that are relevant in the context of Brexit, and they are often confused. The first is parliamentary sovereignty, which is said to have particular resonance in the UK because, due to the vagaries of the uncodified UK Constitution, the Westminster Parliament has been recognised as a body with unlimited legislative power. Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition claims that sovereignty resides in the Scottish people, in spite of the alternative claims of Diceyan parliamentary sovereignty. Thirdly, there is external sovereignty: whereby a country may be sovereign and recognised as independent by the international community. But states recognise that international agreements such NATO, or EU treaties, curb sovereignty in practice. However, these constraints are willingly accepted by states because of the benefits that pooling or ceding some sovereignty can bring – indeed it can even enhance sovereignty in another sense of a state’s power or ability to deal with certain issues.
These are three different concepts of sovereignty, but they have become very confused in the context of Brexit and the UK’s relations with the EU. Now we have the results of the Referendum vote, what are the implications of ‘taking back control’ for sovereignty? This blog examines three specific issues arising in the immediate aftermath of the Brexit vote which reveal the extent of confusion over sovereignty.
The referendum result is not binding
The Referendum vote is an expression of popular sovereignty. But referenda have not been a highly significant feature of UK Constitutional law in the past and there is still uncertainty as to their place in our Constitution. Labour MP David Lammy has called on Parliament to ‘stop this madness’ and to vote in Parliament against the referendum decision to leave the EU. A large majority of MPs are in favour of remaining within the EU, so Parliament would not pass legislation to leave the EU unless it felt compelled to do so by popular demand expressed through a referendum. Could Parliament actually vote against Brexit? According to classic, Diceyan notions of sovereignty, if Parliament is actually sovereign it can legislate to do anything, including to ignore a non-binding referendum. The EU in-out Referendum is a creature of the European Union Referendum Act 2015. There is no requirement in the Act that the UK Government implement its results, nor does the statute set any time limit for implementing a vote to leave the EU. It is a pre-legislative, or consultative, referendum, enabling the electorate to express its opinion before any legislation is introduced. The 1975 referendum on the UK’s continued membership of the EEC was also an example of this type. In contrast, the legislation setting up the Alternative Vote (AV) referendum held in May 2011 (Parliamentary Voting System and Constituencies Act 2011) would have introduced a new system of voting without further legislation, although this did not happen because there was a large majority against change.
So whether a referendum is legally binding depends on the structure of the legislation which enables it. Parliament decides that. The UK does not have a codified constitution with provisions requiring referendum results to be implemented, unlike, for example, Ireland, where the circumstances in which a binding referendum is held are set out in its Article 47 of its Constitution. Indeed, even those UK referenda that appear to dictate consequences, such as the AV referendum, are not completely binding, in the sense that Parliament (due to parliamentary sovereignty) could in any case repeal the legislation creating the obligation.
However, although there may be no legal obligation to abide by the result of the referendum that is not the same as saying there is no political commitment to do so, and MPs may feel a strong obligation to act on the results of the vote, especially if they fear reprisals from their electorate in the form of being voted out of office at a future election. So popular sovereignty and parliamentary sovereignty appear to be at odds. Which, if either, ought to predominate?
A major constitutional change
If implemented, the result of the EU referendum vote institutes major constitutional change on the basis of a fairly small majority of voters. Again, because of an uncodified constitution, the UK lacks specific mechanisms for constitutional change. However, many jurisdictions require a clear constitutional majority for major constitutional change. The US federal Constitution is well known for making constitutional amendment extremely hard to achieve.
In the context of referenda, it is sometimes suggested that some sort of threshold vote is appropriate to ensure both the legitimacy and acceptance of the outcome of a referendum exercise. For example, Lord Lisvane, former clerk of the House of Commons suggested that a very small margin on a very low turnout could lead to claims it was ‘not sufficiently decisive’ for Britain to leave without a second vote on the terms of exit. This would imply that a vote for major constitutional change, such as leaving the EU, is significantly different from voting in ordinary elections, and so it should be the result of something more than merely a bare majority of the votes. Indeed, in the UK, referenda have sometimes instituted forms of special majority, such as a specified level of support in terms of votes, or a specific turnout, as was the case in the Devolution referenda of 1979 (which failed to achieve these requirements). It has also been suggested that a ‘double referendum’ could be necessary in some cases, namely an issue should be put to the voters twice before it is enacted into law. At time of writing, there have been calls for a second referendum on EU membership, requiring a specific percentage of votes and turnout, and a petition to achieve this had resulted in a considerable number of signatures (although the authenticity of some had been doubted). Bruce Ackerman, writing in 2011, suggested in the London Review of Books that major constitutional issues should be put to the voters twice before enacted into law, and that this would help the thoughtfulness of voters’ decisions. Ackerman also warned of the dangers of referenda systems: ‘a poorly designed system could serve as a platform for pandering to the worst instincts of the public, as countless demagogues have shown since Napoleon first demonstrated the abusive potential of referendums in the aftermath of the French Revolution. At present, Britain is drifting down this path.’
A key argument of Brexiteers has been the need to restore powers and sovereignty to Parliament, but referenda may actually sometimes be at odds with parliamentary sovereignty. All three main UK parties officially favour Remain. As former Cabinet secretary, Lord Butler has suggested, it seems paradoxical to give powers back to Parliament to do something it does not want to do.
So the Referendum, as an expression of popular sovereignty, is seen as sometimes to be mistrusted, especially where its results threaten major constitutional change. But perhaps the best antidote to that is not countervailing parliamentary sovereignty (which may also be subject to short-termism or particular bias) but instead considered constitutional principle, which many countries have set in written constitutions to control major constitutional change, whether instituted by referendum or other form. Without a codified or more substantive constitution, the UK lacks any clear such principles.
Art 50 TEU, previously little known and less discussed, is now a very hot topic. Its role in Brexit raises some further questions about sovereignty – although this time, the question is of Parliament’s role in an action that seems executive dominated.
Art 50 is the treaty provision that controls the UK’s exit from the EU. It was inserted into the EU treaty by the Lisbon Treaty amendments in 2009 and gives some details as to how withdrawal negotiations are to be conducted. For example it states how the EU will conduct its side of the negotiations, that there is a 2-year renewable deadline for the negotiations and provides the voting arrangements by which to reach an agreement (weighted majority) or to extend the deadline (unanimity). Art 50 decides the terms of separation, rather than setting out the details of any UK future trading relationship with the EU, which would be determined in a further agreement (and would require unanimity).
It appears the UK would now like some time before it gives formal notification under Art 50 TEU. There are advantages in waiting. It will provide time to a formulate a negotiating strategy, which at present does not appear to exist. The clock on withdrawal does not start to tick until such notification. Once notification has been given, then after 2 years the UK can be ejected from the EU if no withdrawal agreement has been concluded and there is no unanimity for extending the time period. On the face of things, the timing of notification seems to be up to UK, although the EU has been urging the UK to act swiftly.
What about the UK? How is it to conduct its side of the negotiations? The starting point is that Article 50 states that
‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention.’
What is meant by this reference to the ‘constitutional requirements’ of the member state concerned? As domestic constitutional matters, these are rightly not dictated by the EU and we need to look at UK constitutional law to see what they are. However, UK Constitutional law is unclear on this matter, partly because there is no codified constitution in the UK specifically dealing with the matter. The assumption so far seems to be that it is the Prime Minister, using prerogative powers, who will give the formal notice to withdraw under Art 50, and that negotiations on the UK’s withdrawal would be conducted by Ministers (or civil servants, diplomats, or possibly others – opposition ministers, and members of the devolved administrations, given the constitutional importance of the talks?) Negotiations to enter into Treaties are usually seen as the province of Government Ministers acting under their prerogative powers (see Ministry of Justice Consultation Paper 26/2007). But does the UK Parliament have a role? Parliament is involved in the ratification of treaties under Part 2 of the Constitutional Reform and Governance Act 2010. Parliament would in any case inevitably become involved since the European Communities Act (ECA) 1972 would have to be repealed (and replaced with appropriate new legislation).
But could Parliament actually insist that its consent is required before the Prime Minister can trigger Art 50? If leaving the EU is about taking back control and regaining parliamentary sovereignty, should not Parliament play a key role in this process? As there is a large majority of MPs who wish to remain in the EU, the question of who determines whether/when Art 50 should be triggered is certainly relevant.
A couple of factors suggest that Parliament may need to be involved at an early stage. First, we can see a growing constitutional convention that prerogative powers are subject to parliamentary approval, as was evidenced by the Commons vote on Syria in August 2013 (see here). Second, given that a Parliamentary majority will be needed to repeal/amend the ECA in any case, and that it may be some time until formal negotiations are opened, by which time there may be a new government, there will at the very least be a political requirement for parliamentary approval – a resolution, or preferably a majority vote. A parliamentary committee such as the European Scrutiny committee might also wish to take evidence on the matter, thus delaying formal notification.
However, in the absence of a codified constitution, and given the application of Art 50, a treaty provision which has never been used before, the constitutional requirements are unclear. The UK government will be accountable for the outcome of the negotiations to the UK Parliament, although not directly to the public. For example, it was in this way that negotiations with Ireland leading to the Anglo-Irish treaty and Irish Free State were handled in 1921/22, and indeed all other independence negotiations conducted by British governments since then have followed the same principle of parliamentary accountability. But can Parliament require more? After all, it is a statute – the ECA 1972 – that sets out in domestic law the UK’s relationship with the EU, and EU law’s binding effect in the UK, and on withdrawal, Parliament will have to repeal this statute and institute new legislation. Must it authorise the executive to start the unravelling of a process that will lead to the ECA’s repeal? Once again, we see a lack of certainty as to what sovereignty means in this context.
A final example illustrates another conundrum of sovereignty. The possibility of ignoring Art 50 has been canvassed by some Brexit campaigners. For example, John Redwood, MP was reported in the Financial Times as suggesting that ‘a lot of us don’t think there is any need to trigger Article 50 any time at all.’ He has advocated changing UK law by, for example, repealing the ECA 1972 (without triggering Art 50 TEU) and so unilaterally ending the application of EU law in the UK. Similar variations have been mentioned by other pro-Leave campaigners, such as the adoption of UK legislation declaring that the UK will leave the EU on a certain date, as well as legislation addressing particular aspects of EU law, such as curtailing the power of EU judges and changing rules on EU migration. This suggests that Parliament can take control of the withdrawal process, enacting its own legislation, and short-circuiting the need to follow Art 50 treaty procedures and EU law. Domestic law rather than EU, or international law, is seen as governing withdrawal. This suggests a strong parliamentary sovereignty, governing all things, including our relations with other states, and the ability to unilaterally ignore our treaty obligations.
We should be very clear that, if taken prior to (or in the absence of) formal withdrawal from the EU treaties under Art 50 (likely to take a minimum of 2 years) such actions would clearly violate both EU law and international law. To take EU law first – adopting national primary legislation in breach of EU law would have repercussions. Although there is no mechanism in the EU treaty whereby a member state may be ejected from the EU against its will, Art 7 TEU permits the EU to suspend the membership of a state, where it is found to breach EU values in Art 2 TEU (which include non-discrimination, which would certainly be at issue if the UK suspended EU citizens’ rights in the UK). Art 7 TEU, like Art 50, has never been used, and its procedures are quite involved (votes must be taken from the other member states and the European Parliament must give its consent) and in any case, it might be said, that if the UK is withdrawing anyway, what objection could it make to suspension of its membership? Nevertheless, if the very first activation of Art 7 TEU (a procedure that was introduced by the EU to deal with the perceived threat of Jorg Haider’s far-right Freedom party in Austria) were against the UK, this would be an uncomfortable message for the UK to bear, suggesting that it deliberately violated values such as freedom, democracy and the rule of law. Aside from Art 7 TEU, violation of EU law by the UK would open it to enforcement actions being brought against it by the European Commission under Art 258 TFEU (or indeed by another member state which felt that its citizens had been discriminated against under Art 259 TFEU). There is provision for financial sanctions to be imposed in such a case, which could be considerable.
Further, any national legislation deliberately violating EU treaties would be unlawful in international law and harmful to the UK’s reputation. All treaties involve some voluntary restriction on our freedom of sovereign action (which states have accepted). That includes particular stipulations for renunciation and withdrawal from treaties. As former UK Attorney-General, Dominic Grieve wrote in The Times Legal Brief:
‘So in arguing that the UK should simply tear up our EU treaty obligations by using parliament to enact legislation in breach of them, the Brexiteers, including our Lord Chancellor, who takes a special oath to uphold the rule of law, are proposing something revolutionary and lawless. It would send the clearest message to the world that our long stated policy of observing the terms of international treaties is finished. No reliance could henceforth be placed on our honouring any international obligation.
No Attorney General could sanction it.’
The attempt to use national legislation to revoke EU membership also confuses sovereignty. It conflates parliamentary sovereignty with external sovereignty, suggesting that the UK can use Parliament and domestic law to govern its relationships with other states and international organisations under treaties, because of some misplaced idea of parliamentary sovereignty. That is not how national sovereignty functions in the international arena. States observe treaties and join international organisations because they know that in ceding some freedom in certain areas, they are actually gaining a greater benefit from pooling sovereignty or accepting certain obligations. There are rules set out in international law, and in treaties, as to how these obligations function and states cannot simply assert parliamentary sovereignty to circumlocute them.
Therefore, the immediate aftermath of Brexit shows the notion of ‘taking back control’ and the concept of sovereignty to be contested and multiple in the UK’s ‘unsettled constitution’ (see further here and here). Taking back control may ultimately lead to losing it.
Sionaidh Douglas-Scott, Anniversary Chair in Law, Queen Mary University of London
(Suggested citation: S. Douglas-Scott, ‘Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty’, U.K. Const. L. Blog (28th Jun 2016) (available at https://ukconstitutionallaw.org/))