affiliated to the International Association of Constitutional Law
The issue of “Sovereignty” sits at the heart of Santos and M v Secretary of State for Exiting the European Union (CO/3281/2016 and CO/3809/2016) (the “Article 50 case”). In the Island of Palmas case (International Law by Vaughan Lowe at page 138 (2007)) the arbitrator described the concept of Sovereignty in the following terms:
“Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”
In the UK, the functions are that in the domestic sphere Parliament makes the laws, the Courts interpret the laws and the Executive implements the law; in the international sphere, the Executive conducts foreign affairs.
Membership of the EU has raised questions about a loss of Sovereignty by member states. To allay such concerns, the UK ensures it retains the overarching right: (a) to approve any change to the EU Treaties, including any changes which result in the alteration of powers (competences) conferred on the EU institutions; and (b) to approve the incorporation into the UK legal order of any changes to the EU treaties; and (c) to withdraw from the EU.
The UK’s membership of the EU (formerly the EEC) requires action being taken by the UK state both in the international sphere and the domestic sphere. Government and Parliament have to march in step whenever an EU Treaty is to be entered into or altered . The UK must meet the requirement of the EU and the other member states that: (a) the acquis communautaire and all changes to the acquis must apply uniformly throughout the EU and in all member states (save as regards agreed opt-outs); and (b) each member state confers agreed powers (competences) on the EU institutions. Neither the Executive nor Parliament, using their respective powers, can separately fulfil such requirements.
The pattern of joint action by the Executive and Parliament commenced when the UK joined the EEC and continued in relation to any Treaty revision. In respect of Treaty revisions, ratification had to occur after the ECA 1972 had been amended. If Parliament had ever decided not to amend this Act, ratification by the UK would not have occurred. In that case, the Treaty revision would not have come into effect.
Until 2008, express statutory restrictions existed in relation to conferring additional powers on the European Assembly and joining the Eurozone. The ECA Amendment Act 2008 (the Lisbon Treaty 2007) included a range of express statutory restrictions on the ratification of Treaty revisions. These restrictions were subsequently moved to and enlarged in the EU Act 2011. That Act also included restrictions on “decisions” taken under the TEU or TFEU which would result in the conferring of additional powers on the EU.
Based on the conduct of the Government and Parliament, one could conclude that the “fettering” of the prerogative derived from the fact that the Executive lacked the capacity to deliver on its own (and without the assistance of Parliament) the result that the EU and other member states required. Neither incorporation of the acquis into the UK legal order or the conferring of legislative powers on the EU institutions were ever “in the gift of the Executive”. They required an Act of Parliament.
If one employs the analogy of a joint venture in the sphere of private law, by forming a joint venture, a party accepts, expressly or implicitly, that it lacks the power to tachieve the jointly agreed purpose independently. Part of the price of teaming up with a “partner” who has the requisite resources and powers results in individual powers being “fettered”.
The path of accession to the EU and Treaty revision was well trodden in the UK. By contrast, withdrawal of a member state was largely unexplored territory. The prevailing view was that a voluntary withdrawal could only be obtained if such withdrawal was agreed by all the member states.
The legal question was never resolved as no member state ever withdrew. However, Greenland’s emergence from the EEC, which involved the exclusion of a part of Denmark’s territory, provides some guidance of the steps that might have been taken if there had been such a withdrawal. On 13 March 1984, an EU treaty (the “Greenland Treaty”) was signed by the member states which revised the EU Treaties. This was subject to ratification by each signatory. On the same day the EEC, the Government of Denmark and the local Government of Greenland signed an Agreement on fisheries. This was approved by the Council on behalf of the EEC on 29 January 1985. This only came into force when the Greenland Treaty came into effect so the Agreement’s commencement was indirectly subject to the member states ratifying the Greenland Treaty.
Using the Greenland exit as a benchmark, one can analyse the likely steps of a pre-Lisbon exit by the UK, had the UK decided to leave the EU. These steps would have involved consulting the UK electorate in a referendum; negotiating the terms of an Exit treaty, which would have been subject to ratification; setting out the terms of the future trading relations with the EU; and repealing or amending the ECA 1972 and other legislation. The sequencing of these steps would have meant that, before the UK irrevocably committed itself to a Leave Decision, the terms of the withdrawal and the Parliamentary legislative process would have occurred. Parliament would have been centrally involved in the process, in particular so as to avoid there being a large hole in the UK’s laws when the acquis fell away. The “pattern” of the co-operation between the Government and Parliament as regards accession to the EU and Treaty revisions would have broadly applied to the UK’s exit process. All the proverbial ducks could have been lined up in a row before the UK withdrew. The ultimate decision to leave would have been taken at the end of the process, with Parliament’s blessing. (Just as, in the case of a Treaty revision, Parliament’s decision to amend the ECA 1972 is taken when the only outstanding step is ratification of the Treaty revision.)
If Parliament had disapproved of the Exit Treaty and related agreements and refused to repeal the ECA 1972 and related EU legislation and pass legislation to compensate, so far as possible, for the loss of the acquis and the Government had nevertheless decided to ratify the Exit Treaty, there would have been a constitutional uproar and litigation. Similar claims to those raised in the current Article 50 case would have been made.
Article 50 TEU was introduced by the Lisbon Treaty in order to clarify the position regarding the withdrawal by a member state from the EU. The rationale for its introduction addressed concerns about the sovereignty of member states. In court cases its inclusion was particularly focused upon by several constitutional courts and tribunals of Member States – for example Germany, Poland, the Czech Republic and Latvia.
In the Shindler case (Shindler v Chancellor of the Duchy of Lancaster  EWCA Civ 469 at point 7) the Master of the Rolls referred to the scrutiny of the Lisbon Treaty by the German Constitutional Court: He said
‘Article 50 has …. been analysed by the German Constitutional Court in Re Ratification of the Treaty of Lisbon  3 CMLR 13.
The principal issue in that case was whether the Treaty of Lisbon represented an unacceptable infringement of Member State sovereignty. In arguing that it did not, the German Government submitted that the “free right of withdrawal” conferred by Article 50 TEU confirmed the “continued existence of state sovereignty” and that Member States “would remain the ‘masters of the Treaties’ and would not have granted the European Union Kompetenz-Kompetenz”: see para 126(2). The court accepted this submission.
Later in the judgment (at point 16), he also said:
“16. […] a decision by a Member State to withdraw from the EU is an exercise of national sovereignty of a special kind for which the TEU has made the express provision that this may be done in accordance with a Member State’s own constitutional requirements.”
The effect of Article 50 is that the “sovereignty” of the member state is preserved. But, there are costs. The “exit risk” is primarily borne by the withdrawing member state. It bears the risk that at the end of the two-year period it will exit the EU with no withdrawal agreement in place and no agreement governing any future trading relationship between itself and the EU. Its negotiating position is weakened. Instead, it has to rely on the hope that its own interests and the interests of the other member states will be sufficiently aligned to produce a new deal which is acceptable to it. The reality is that the “base case” is a Hard Brexit. Any deal better than that will depend upon the relative bargaining power of the parties and negotiation skills and, of course, political considerations.
The arguments raised in the Article 50 case has enabled one to focus on the “costs” which will arise in the domestic sphere, particularly in relation to the constitution and the statutory rights of UK citizens. The extent of such costs will depend upon the eventual outcome of the Article 50 case.
In the post-Lisbon withdrawal scenario, there are two critical differences to a pre-Lisbon withdrawal scenario. The “decision” to leave (the “Leave Decision”) is shifted from the end of the process to the commencement of the process, when the Article 50(2) notification is given. And, a direct and inevitable link of the Article 50(2) notification and the falling away of the EU Treaties at the end of the two-year period (unless altered in the way set out in Article 50) is created. That turns the Executive which gives the notification into an unauthorised law-maker as the loss of the acquis on exit negates the ECA 1972 and other EU connected legislation. Parliament’s exclusive role as law-maker is usurped.
In addition, placing the Leave Decision at the commencement of the process as opposed to the end of the process, turns the decision to withdraw from an informed decision with regard to UK plc and the national interest (all the proverbial ducks being in a row) into a decision which can be described as an act of faith (with a multitude of the ducks not being in a row).
In the Article 50 scenario, the Executive’s power to operate unilaterally is dramatically increased. The Executive can side-line Parliament. It is the Executive which has its finger on the Article 50 trigger. Parliament is deprived of any say over the Leave Decision. Parliament – and UK nationals – just have to live with the constitutional and legal consequences of the Government sending the Article 50(2) notification. That, at any rate, is the Government’s assertion in the Article 50 case.
However, a counter argument is that the side-lining of Parliament in relation to the Leave Decision is contrary to the scheme of mutual co-operation (if one likes, the “rules of the game”) which was followed by Parliament and the Government on the accession of the UK to the EEC and on subsequent Treaty changes. As demonstrated above, the UK’s membership of the EU and all that this entailed in the international and domestic spheres required that the Government and Parliament join forces and act in conjunction. Each lacked the powers to achieve the desired objective independently. That created a situation where each agreed explicitly or implicitly that, in relation to EU membership, they must act jointly. Those were the “rules of the game”. Such rules are of course expressed in the terms of public law and the concepts and rules which form part of this area of law.
But the Government deny that the “rules of the game” apply or, in the alternative, that there were no such rules. , Also, it claims that it alone is the decision maker; it alone can decide to embark on a path where everything is uncertain and none of the proverbial ducks have been lined up in a row including, in particular: (a) the terms on which the UK will re-calibrate its relationship with the EU (Hard Brexit or Soft Brexit); (b) the laws which will apply in the UK when the EU treaties fall away; and (c) proper and constitutionally correct treatment of the statutory rights of UK citizens.
In his submissions, Counsel for the Government sought to paint the picture of the Executive conducting a “sole venture” in the international sphere. According to this view, the Executive would summon Parliament’s assistance as and when needed. But this picture ignores the fact that, from the outset, the Executive (Government) lacked the power to consummate the UK’s accession to the EU and its involvement in Treaty changes. The power to enact primary legislation is with the Crown in Parliament and not with the “Crown in 10 Downing Street”. The “bargain” that notionally occurred between the Executive and Parliament from the outset was that the Executive’s freedom to conduct the UK’s relationship with the other member states and the EU was shackled. In public law terms, the notional “bargain” reflected the fact that the prerogative was not only insufficient but was also “fettered”. To adapt the comments of the leaders of the other member states, it is not a case of the Executive being able to cherry-pick what it wants and ignore what it doesn’t want – of “having your cake and eating it”.
Article 50, which was designed to reflect and buttress the sovereignty of member states, will have the effect of enabling the UK to exit. But, subject to the outcome of the Article 50 case, this will be at the cost of creating deep fissures in the UK’s constitutional structure, undermining the “sovereignty” of Parliament and stripping UK citizens of important statutory rights. It will also mean that, to paraphrase Aneurin Bevan, it may well be a case of the UK going naked into the negotiating room and relying on a hoped-for alignment of interests to provide a few clothes to hide its nakedness. (“But if you carry this resolution and follow out all its implications — and do not run away from it — you will send a British Foreign Secretary, whoever he may be, naked into the conference chamber. … And you call that statesmanship? I call it an emotional spasm.” Speech at the Labour Party Conference, 4 October, 1957, on unilateral nuclear disarmament.)
In the pursuit of preserving the Sovereignty of member states a “certain and inevitable” exit mechanism was included in the EU Treaties. However, one must remind oneself that the concept of Sovereignty includes the need for a State to enjoy a “freedom of movement” in its international dealings which enables it to assess risk and make compromises and avoid being ‘boxed in’. The effect of Article 50 is to enshrine the “pure flame” of Sovereignty but at the expense of the pragmatism of Sovereignty which is practised in the smoky corridors of diplomacy, bargaining and compromise.
There are echoes here of August 1914 when diplomacy was undermined by mobilisation railway timetables. There are many faces to the concept of Sovereignty; there can be unfortunate and unwelcome “unintended consequences” when one face is advanced at the expense of another.
Simon Renton, solicitor
(Suggested citation: S. Renton, ‘An Unintended Consequence of Article 50?’, U.K. Const. L. Blog (1st Nov 2016) (available at https://ukconstitutionallaw.org/))