UK Constitutional Law Association

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Aurelien Antoine: Brexit Seen by a French Professor in Public Law

I am a professor in Public in France devoting the major part of my research to the United Kingdom (author, among other books, of a “British constitutional Law” prefaced by Lord Mance, editions LGDJ, and director of the “Observatoire du Brexit”), I wished to submit to my British colleagues my general reflections on institutional and legal developments related to Brexit. This event aroused a new interest for constitutional arrangements on the other side of the Channel, in particular those relating to the referendum, the role of the Parliament, the procedure before the Supreme Court or the clear distinction between the legal and political spheres.

1. The recourse to the referendum

For a French professor in public law, the recent success of the referendum process in Britain draws attention. In French faculties of law, the United Kingdom is presented as the cradle of parliamentarism and parliamentary sovereignty. In the UK, popular sovereignty is historically not entrenched, contrary to France where the referendum and its plebiscitary drift are well established in our constitutional heritage. However, these last years, the British had recourse nationally or locally to the referendum more often than in France. However, in France as in the United Kingdom, the referendum is a tool of semi-direct democracy which must be handled with great precaution. Its recourse for demagogic reasons is a classical drift, as it arguably was for the UK Conservative party with the promise in 2013 of a referendum on Brexit. In France, for many candidates running in presidential elections the referendum is frequently a campaign argument to prove they are not isolated from the citizens. The nature of this election justifies the recourse to the referendum because the President of the French Republic is elected by the whole of the nation through universal direct suffrage. De Gaulle’s exercise of power engaged a form of political responsibility using a referendum device which was, in fact, a plebiscite. It has especially become a recurring proposal of the programmes of populist candidates who wish “to give the power back to the French people” (see in 2017 Marine Le Pen and Nicolas Dupont-Aignan to the far right, and Jean-Luc Mélenchon to the far left). The simplicity and even over-simplification of the referendum seduce more and more candidates. This is the case for candidates of traditional political parties, such as Benoît Hamon, the French Socialist party’s candidate. The example of the 2017-election campaign is not isolated. It is a recurrent campaign promise over several elections. Nevertheless, this promise has not been really observed since the failure of the referendum on the European Constitution in 2005. The major political parties are wary of the consequences of an electoral defeat. The French experiment shows, in any case, that in spite of the electoral commitments, governments don’t respect this way of expression of the people any more. They consider more rational methods for direct democracy (through, for example, “participatory democracy”). David Cameron should undoubtedly have been inspired to take into account the French example. He would have better understood that referendum results are never acquired and can quickly stop a political career.

Nevertheless, apart from the reaction of Boris Johnson or Nigel Farage, we can greet the sense of political responsibilities following the referendum of June 2016. This situation echoes the practice of de Gaulle who reconsidered his position in case of a referendum defeat. In 1969, General de Gaulle resigned following his defeat. This political precedent was not followed by Jacques Chirac in 2005, although he was a (remote) heir of Gaullism. The parallels between the British and the French institutional histories do not stop there: there are also close parallels with the parliament’s role.

2. Parliament’s role

British parliamentarism had a real influence in the drawing up of the Constitution of 1958 through Michel Debré. The rationalization of the relations between legislative and executive powers and the discipline within political groups in Parliament were an inspiration to the Fathers of the 5th Republic. So, we are not surprised by the similar evolution of the two political regimes.

During the debates on the bill authorizing the Government to trigger article 50 of the Lisbon Treaty, we can note the high quality of the debates and the considerable role played by the second chamber. As the House of Lords, the French Senate is, however, subject to recurrent criticisms because of its relative utility. The work produced by the Lords shows that expertise is useful in parliamentary democracies and shows that quality legislative work is provided not only by politicians elected by universal direct suffrage. Even if many reforms are still necessary to complete its modernization, the House of Lords as an expert chamber is an example for consideration in France.

In addition, it is striking to note that the Commons were subjected completely to the requirements of the Government during the debate on article 50 bill. The “complete fusion” between Parliament and Government does not exclude real parliamentary control. On this subject, the French commentators could be surprised to see that the legislative debates on the article 50 bill were fast tracked. According to me, the Government in charge of triggering article 50 would have done it on the basis of a clear mandate. In other words, the referendum only dealt with the decision to leave the EU, not with the ways to leave it. The referendum should have been followed by general elections so that a debate took place between the parties to specify these ways to leave the EU. Such was not the case and it is a cause for regret. The consequences are notable: rashness in the process, the Government’s lack of clarity on future talks with the EU, no alternative in the event of failure of negotiations, tensions and disputes within the parliamentary majority, and conflicts with the devolved administrations. The judgment given by the Supreme Court was, sadly, not sufficient to rebalance the powers between Parliament and Government.

3. The case before the Supreme Court

In many regards the judgment given by the UKSC in the Miller case was enthralling for French lawyers. First of all, it is interesting to note that the application for judicial review was easily allowed, as well before the high courts of London and Belfast as before the Supreme Court. Indeed, the Government’s written and oral declarations were sufficient grounds for applying for a judicial review. In French administrative law, it is possible to press judicial review only if an administrative decision causes a grievance, i.e. directly affects the legal rights and the legal situation of citizens. It is improbable that the administrative judge in France could admit a judicial review against a governmental position, particularly in international relations. The procedure relating to Brexit clearly reveals the importance of the principle of the rule of law (see para. 5 of the High Court of England and Wales judgment, and para. 15 of the Northern Ireland High Court judgment).

In the second place, the proceedings before the Supreme Court revealed high level debates which were both long and detailed. The jurisdiction even greeted the quality of the exchanges and contributions of lawyers and legal doctrine (§ 11). This recognition testifies to a judicial tradition characterized by dialogue and the commitment to the adversarial principle.

In third and last place, I was rather impressed by the richness of the decision which comes to reinforce a form of constitutionalism which has arisen from the Factortame n° 2 case. The Supreme Court’s decision demonstrating the supremacy of Parliament over royal prerogative in order to preserve the rule of law is undoubtedly long for French lawyers accustomed to the concision of French courts’ decisions. But it is a very interesting lesson from British constitutional law. This lesson is particularly clear to establish a valuable distinction between law and politics.

4. The separation between law and politics

The Supreme Court clearly explains the distinction between law and politics. Even if the eleven judges recognize the obligation for the Executive to go through Parliament to trigger article 50, they refuse to specify the terms of the legislative agreement. The significance of the referendum and the contents of the article 50 bill depends on debates of a political nature during the legislative procedure which the UKSC is not prepared to judge with the risk of encroaching upon legislative and executive powers. Analysing the application of the Sewel convention to determine if the Government must have the consent of devolved parliaments before triggering article 50, the judges point out that they “are therefore neither the parents nor the guardians of political conventions; they are merely observers » (§ 146).

So, the clear distinction between law and politics made by the UKSC meant that Parliament had the power to obtain more from the Government on crucial issues: talk conditions, consequences of no deal, EU citizens legal status, etc. Nonetheless, the Commons were unable to impose their views and to contribute to the framework of the Brexit negotiations. The Parliament, and particularly the Commons, didn’t seize the opportunity given by the UKSC to play a real role in this first step to Brexit. We must hope it will be different when Parliament comes to  discuss the outcome of negotiations with the EU.

Finally, the study of the legal aspects of Brexit is a very interesting opportunity for French lawyers to understand the UK’s constitutional framework. Despite its imperfections due to the excessive dominance of the Executive branch, this system ensures substantive discussions and promotes the adversarial principle which are essential in a democratic society.

Aurélien Antoine, Professor of Public Law, University of Saint-Étienne/University of Lyon, Center for Critical Legal Studies

(Suggested citation: A. Antoine, ‘Brexit Seen by a French Professor in Public Law’, U.K. Const. L. Blog (3rd Apr 2017) (available at https://ukconstitutionallaw.org/))

4 comments on “Aurelien Antoine: Brexit Seen by a French Professor in Public Law

  1. John
    April 3, 2017

    I am not sure why Aurélien Antoine referenced the Factortame Case in his article.
    That case involved a judicial review overturning the Merchant Shipping Act 1988.
    Also, the Merchant Shipping (Registration of Fishing Vessels) Regulations.
    The case was decided by the UK House of Lords after referral from the ECJ.
    The Act and Regulations had been passed by the then Thatcher Government to stop Spanish trawler operators fishing in UK waters.
    They lost the case and had to pay £55 millions in compensation to the Spanish companies involved.
    It – of course – established a precedent that EU Law was supreme over UK Law.
    Once the UK leaves the EU, then UK Law will once again become supreme.

  2. Lawrence
    April 4, 2017

    I think the Factortame case is cited because of its importance to the progress of constitutionalism in the UK : this decision limited the parliamentary sovereignty and assigned a special status to the EU law. In the Miller Case, this special status is confirmed (see also Thoburn or HS2).

    • Mr. Wayne Ramwell
      April 4, 2017

      Precisely, that is the reason why Factortame is rightfully mentioned. Moreover, in that case there was obiter dicta of the judges referring to when judges might be willing to override the express will of Parliament, such as if legislation undermines the “building blocks of the constitution” or tries to oust the role of the courts. This makes reference to the fundamental Rule of Law principles in our uncodified constitution.

  3. John
    April 16, 2017

    Very interesting points, gentlemen, especially the reference to the obiter dicta in the Factortame case.
    Assuming the UK withdraws from the jurisdiction of the ECJ – and possibly the ECHR – would this not imply full restoration of UK sovereignty in these matters?
    Would the obiter dicta then still apply or would the UK Parliament be able to claim that judge-made law would have to accept the supreme sovereignty of Parliament?
    We may yet see a tussle between these two constituent parts of the UK unwritten constitution looming large in just a few short years – may we not?
    Did anyone mention this during the Brexit referendum?

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