The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written Evidence from Professor Paul Craig, St John's College, University of Oxford


The committee poses a number of questions concerning the impact of Clause 18 of the Bill. The answers to these questions depend, however, on more precise consideration of the purpose and wording of Clause 18. This is important because the Explanatory Memorandum, EM, and the wording of Clause 18, raise three issues that are related but distinct.

(1)  Issue 1: An Act of Parliament is a necessary condition for the UK's entry into the EU and is therefore a necessary pre-condition for the application of any EU law in the UK. The legal premise is that in a dualist country such as the UK there must be an Act of Parliament that adopts or transforms the EU Treaty into UK law. Viewed from this perspective there is nothing novel about Clause 18 insofar as it stipulates that "it is only by virtue of an Act of Parliament that directly applicable or directly effective EU law … falls to be recognised and available in law in the United Kingdom". The 1972 Act, and in particular s 2(1), is the gateway in the preceding sense for EU law becoming part of UK law. There is in general no "legal fight" with the EU vis-à-vis this issue. The application of EU law within a national legal order is predicated on that legal order being part of the EU, as determined by the constitutional requirements of that state. Clause 18 could nonetheless potentially be relevant in two unlikely scenarios.

(a)  The UK expressly repeals the 1972 ECA, but has not yet exited from the EU as it is allowed to do under the Lisbon Treaty, Article 50 TEU. On this scenario there would be no Act of Parliament through which EU law fell to be recognized in the UK. However until the UK left the EU it might be argued that it remained bound by EU law as an international Treaty obligation. It might further be contended from the perspective of the EU/ECJ that EU law could continue to apply in the UK as an autonomous legal order even in the absence of a domestic statute. Clause 18 if enacted would operate to block or at the very least impede this line of reasoning within the UK courts.

(b)  The alternative scenario is one in which the ECA 1972 remains, but a UK statute expressly derogates from a provision of EU law in a particular instance, with appropriate statutory words expressly excluding application of the principles in the ECA 1972. There has been no such case thus far. If it were to arise it might be argued in the light of Clause 18 that if an Act of Parliament expressly derogated from EU law and expressly excluded application of the ECA 1972, there would to that extent be no Act of Parliament by virtue of which EU law was recognized and available in the relevant area in the UK. Clause 18 could then be used to counter any argument that the relevant provision of EU law could apply within the UK because EU law constituted an autonomous legal order. Needless to say such an Act of Parliament would constitute breach of EU law. It would be for the UK courts to determine whether such an Act of Parliament was compatible with the UK's continued membership of the EU. The Supreme Court might decide that the UK statute could be given effect pursuant to the sovereignty of Parliament, plus Clause 18. It might alternatively decide that such a statute could not be made while the UK remained within the EU. My personal view is that in the absence of some very serious and well-founded concern about the impact of EU law on national constitutional precepts/fundamental rights, such a statute should not be enacted for the reasons given in 4a below, and that such a step should only be contemplated after according the EU courts the opportunity to take action via a preliminary ruling.

(2)  Issue 2: It seems, however, from the EM, especially paras 104-106, 109, that the framers of the Bill might have intended something more than this. Clause 18 could be read to mean that an Act of Parliament is required before any particular EU law takes effect in the UK, notwithstanding the existence of the 1972 Act, and notwithstanding the fact that the particular EU law is directly applicable and/or directly effective. The wording of EM para 104 and 105 seems premised at least in part on this assumption, insofar as both paras assume that the validity of EU law within the UK might be dependent on the need for some UK statute over and beyond, or independent of, the 1972 Act. If this is the intent behind Clause 18 it is problematic from the perspective of UK law and EU law.

(a)  UK perspective: UK law has never demanded the existence of a UK statute or statutory instrument to incorporate each individual act of EU legislation within UK law.

(i)  The ECA s 2(1) is expressly framed thus: "all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly". Moreover the ECA s 3(1) specifies that the interpretation of the Treaties and interpretation/validity of EU acts are issues of law that must either be referred to the ECJ under what is now Article 267 TFEU, or be decided by the UK courts in the light of the ECJ's jurisprudence.

(ii)  To be sure directives require implementation and this will normally be through UK statute or delegated legislation, but this is of course consonant with and demanded by the very nature of directives under EU law. The UK has not constitutionally required separate national legislation as a pre-condition for the legal validity of each directly applicable EU regulation within UK law, nor has it required UK legislation as a pre-condition for the enforcement of directly effective rights in UK law. There must, to be sure, be an Act of Parliament that authorizes the application of EU law in national law, as noted in point 1 above, and this is provided for by ECA 1972, s 2(1). There may moreover be national legislation that has to be altered in the light of a directly applicable regulation or directly effective EU norm, or in order to implement a directive, hence the power contained in s 2(2) ECA. That is quite different from saying that each such EU provision must be recognized in a separate UK statute or statutory instrument before it has legal effect in the UK.

(b)  EU perspective: if Clause 18 were to be accorded the meaning being considered here it would place the UK in persistent and systematic breach of EU law. It is clear from EU law, and has been for the last fifty years, that regulations once made by the EU are directly applicable in all national legal orders without the need for separate transformation or adoption into national law. The rationale is simple. If each regulation had to be separately incorporated into each legal order the EU would not be able to function, since there would always be imperfect national implementation, and hence unequal application of EU law in the relevant area, thereby undermining the very idea of a level playing field. It is equally clear that directly effective Treaty articles, regulations, directives and decisions are not dependent for their effect on acceptance into the national legal orders via separate statute or the like.

(3)  Issue 3: It is clear from the EM that a major concern driving Clause 18 concerned Parliamentary sovereignty. The nub of the argument is contained in para 106 of the EM, which can be paraphrased thus: there is concern that the doctrine of Parliamentary sovereignty might be eroded by the decisions of the courts; by placing on a statutory footing the common law principle that EU law takes effect in the UK by virtue of an Act of Parliament, this will then provide clear authority to counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU Treaties or international law and principles which has become an integral part of the UK's legal system independent of statute. The EM also states, para 109, that Clause 18 is not intended to alter the relationship between EU and national law, and is not intended to affect the primacy of EU law. The following issues should be disaggregated for the purposes of analytical clarity.

(a)  It is important to be clear at the outset in what sense Clause 18 is to be regarded as a Sovereignty Clause.

(i)  It can properly be so regarded insofar as it embodies in statutory form the common law concept of dualism. It states in terms that EU law falls to be recognized and available in the UK by virtue of an Act of Parliament. This supports the sovereignty of Parliament by making clear that executive affirmation of a Treaty will not have domestic legal effect without Parliamentary ratification/approval in a statute. This is reflected in the heading of Clause 18, which is: "Status of EU law dependent on continuing statutory basis".

(ii)  Clause 18 is not a sovereignty clause in that it tells us nothing as such about the relation between EU law and national law in the event of a clash between the two. It does not address sovereignty as primacy. Indeed EM para 109 expressly states that nothing in Clause 109 is intended to affect this.

(b)  The next step is to consider the purpose of Clause 18 in the light of the two preceding senses of sovereignty.

(i)  There was nothing in the prior case law that undermined sovereignty in the sense of dualism, 3(a)(i). The UK cases concerning EU law and national law were predicated on dualism. The case law of the EU courts did not attack the idea that the relationship between UK law and EU could be premised on dualism, insofar as this connoted the way in which the EU Treaty initially became part of national law. The principle of directly applicable EU law does not offend sovereignty in the sense of dualism. The UK, through the ECA 1972 expressly agreed to the Treaties, including the idea that regulations were directly applicable. Thus insofar as rules of EU law can have effect without the foundation of a particular statute this is because the EU Treaty and case law there under affirmed that this was so, and the UK agreed to this regime when joining the EEC via the ECA 1972 ss two and three. The affirmation of sovereignty as dualism in Clause 18 does no harm. It would however only be relevant in the unlikely scenarios set out in point one above; or on the assumption that Clause 18 were to be given the meaning in point two, which is very problematic for the reasons given above.

(ii)  There has to the contrary been much case law concerning sovereignty in the sense of the relationship between EU law and national law in the event of a clash, 3(a)(ii). The EU courts have always taken the view that all EU law has primacy over all national law. This has not been generally accepted by national courts of Member States, which have, for example, resisted the idea that EU law takes precedence over the national constitution and/or fundamental rights. The UK courts in Factortame and the EOC case accepted that EU substantive law can have primacy over national law in the event of a clash. Thoburn is authority for the proposition that the relationship between EU law and national law is to be decided by UK courts in accord with our constitutional precepts, including the sovereignty of Parliament. The answer is not to be regarded as one dictated by ECJ jurisprudence. The relevant point for present purposes is that Clause 18 does not in terms address this second sense of sovereignty. It tells us that EU law takes affect in the UK by virtue of an Act of Parliament (sovereignty as dualism); it says nothing as to what should happen when there is a clash between EU law and national law (sovereignty as primacy), which will continue to be determined by the prior case law. The same point can be put in a different way: the issues of how EU law enters national law, and its status vis-à-vis other norms of national law are distinct. Thus even if, by way of contrast to the UK, a Member State conceives of the relationship between treaties and national law in monistic terms, such that a domestic statute is not required for a Treaty to take effect within the national legal order, this does not in itself determine the relevant hierarchy between national law and Treaty law in the event of a clash between the two. The answer may be expressly determined by a provision of the national constitution, or it may be decided by the courts where the national constitution gives no explicit answer. Insofar as member States have accorded primacy to EU law they have done so for reasons connected with their own legal order and not because of the communautaire reasoning of the ECJ.

(4)  The committee's specific questions can now be answered in the light of the preceding analysis. The fear of erosion of sovereignty by the courts: the fundamental point in this respect was recognized by Lord Bridge in Factortame. Membership of the EU brings benefits and burdens. If a Member State could derogate from EU law in an area where the EU undoubtedly had competence, simply because the Member State disliked the outcome, this would entail inequality vis-a vis the other Member States, the denial of a level playing field, and the collapse of the EU. EU membership thus entails a loss of sovereignty viewed in terms of the capacity for autonomous state action. But if a Member State does not wish to accept the burdens of membership it should not be able to take the benefits. Lord Bridge was therefore correct to premise his famous dictum by noting that insofar as there has been a diminution of sovereignty flowing from EU membership this was not the result of judicial decisions, but was rather the consequence of the political decision to join.

(5)  What additional protection if any is served by placing the principle of parliamentary sovereignty in relation to EU law on statutory footing? The answer to this question is contained in points 1-3 above. It should moreover be noted that when the EU Bill under consideration becomes a statute it would, in accord with traditional precepts of sovereignty, be capable of being repealed or amended. It may well be that the EU Act 2010-11 would be regarded as a constitutional statute in the manner articulated by Laws LJ in Thoburn, in which case it would have to be amended or repealed expressly, or by clear words that could not be given any other meaning. This does not alter the point being made here, which is that insofar as Clause 18 reflects sovereignty as dualism, which is a common law precept, it could be expressly repealed/amended pursuant to the constitutional precept of sovereignty that Parliament can do whatever it wishes, save that it cannot bind its successors.

(6)  The impact if any of Clause 18 on the ECA 1972, and in particular ss 2(4) and 3(1).

(a)  Clause 18 and the EU Bill as a whole are predicated on the continued existence of the ECA 1972. There is nothing in Clause 18 that directly undermines the 1972 Act. It would indeed be difficult to convince a UK court, which would in the spirit of Thoburn require express repeal or amendment of the ECA 1972, to regard Clause 18 as having any such effect, given that Clause 18 refers uncritically to the language of ECA, s 2(1).

(b)  The ECA s 2(4) is notoriously difficult to interpret if one attempts to give sense to every word. The brief answer for present purposes is that the strong interpretive obligation/priority clause embodied in s 2(4) is not generally undermined by Clause 18. The only way in which this might be so, short of repeal of the ECA or its express exclusion in a particular instance, is if Clause 18 were to be interpreted to require express statutory approval for each and every norm of EU law before it became applicable in the UK. The difficulties with this view were set out in point two above. The same conclusion follows in relation to the ECA s 3(1): Clause 18 would not affect the substance of s 3(1) unless it was read so as to mandate separate statutory authorization before each EU norm could become part of UK law. This would be inconsistent with EU law as propounded by the ECJ, and according to s 3(1) the UK courts are to make their determinations on points of EU law in accord with the principles of the ECJ.

(7)  The question as to whether Clause 18 applies to future Acts of Parliament as well as the past: the answer in principle must be affirmative. An Act of Parliament applies unless and until repealed. Thus whatever meaning is given to Clause 18 will apply to future Acts of Parliament unless there is something express to indicate the contrary.

(8)  The Committee asks "what (if any) is the likely effect of putting the principle of parliamentary sovereignty with respect to directly applicable or directly effective EU law on a statutory footing on UK judges reviewing the acts of public authorities and/or national legislation for consistency with EU law? Paragraph 106 of the explanatory notes says that this Clause "will provide clear authority which can be relied upon to counter arguments that EU law constitutes a new higher autonomous legal order derived from EU Treaties or international law and principles which has become an integral part of the UK's legal system independent of statute". The Committee asks in what circumstances and by whom such an argument might be relied on.

(a)  The circumstances in which such an argument might be of relevance were set out in point 1, but such scenarios are not likely to become a reality. The argument might also be relevant if Clause 18 were to be interpreted in the sense articulated in point 2, but this interpretation is problematic for the reasons given above.

(b)  An argument for the application of EU law in the absence of a UK statute might be made by a litigant who sought to rely on EU law in the national courts where the outcome for that litigant was preferable to that based on national law.

(9)  The final question in this part asks whether Clause 18 is consistent with Declaration 17 of the Lisbon Treaty and the ECJ's case law on primacy.

(i)  Clause 18 does not in terms address the primacy of EU law, as explained above in 3. Moreover the EM para 109 states expressly that Clause 18 is not intended to affect the primacy of EU law insofar as it has been recognized in UK law.

(ii)  If however the UK were, for example, to derogate from EU law in the manner set out in 1b above, and to use Clause 18 in tandem with the derogating statute with the hope of preventing application of EU law in national courts, this would undoubtedly be regarded as a breach of EU law by the ECJ.


(10)  What is the meaning of, and difference between, the terms "competence" and "power" as used in the Bill? Are "competence "and "power" as used in the Bill terms that are already recognised under national law?

(a)  It is acknowledged in the EM para 20 that "power" is not a term of art in the Lisbon Treaty in the same way as is "competence". The rationale given for use of the two terms in the Bill emerges most clearly in the EM para 39: the term power is used to cover those instances where an EU decision seeks to confer on an EU institution or body a new or extended power to require Member States to act in a specified way in accordance with the EU's existing competence; or to confer on an EU institution or body a new or extended power to impose sanctions on Member States for their failure to act in a specified way already provided for by the Treaties. Such a development would not, says EM para 39, in itself, "transfer competence (the ability for the EU to act in a given area) from the Member States to the EU - instead, such a proposal would allow an institution or body of the EU to use the competence conferred on it already by the Member States in a different way". This is said to be the rationale for the use of the word power in clause 4(1)(i) and (j).

(b)  There are arguments that can be put both ways as to whether the differentiation between power and competence is necessary.

(i)  The argument in favour of the distinction would be as follows. There is a meaningful distinction to be drawn between the existence of competence, and the powers that can be exercised if such competence exists. This dichotomy is familiar in, for example, national systems of administrative law and it can also be found in Article 263 TFEU. The separate treatment of competence and power within the EU Bill facilitates moreover coverage of the situation in which there is an amendment to the Treaty enabling, for example, new sanctions to be imposed by the Commission or ECJ. Such an amendment would not thereby broaden the heads of competence as delineated in Article 2 TFEU, because these relate to the substantive areas in which the EU is able to act, and do not touch the powers accorded to the institutions under the TEU and TFEU.

(ii)  The argument against the differentiation between competence and power would be as follows. The very scope of competence possessed by the EU in any particular area will depend inter alia on the more particular powers that the EU is given within that area. An addition to those powers will in that sense expand the scope of EU competence within that area. The EU Bill is premised on distinguishing between a Treaty revision that extends competence, by for example, broadening the subject matter remit of a Treaty article, and Treaty revision that extends "power" to impose sanctions. It is however unclear why the latter is not as much an extension of competence as the former, more especially if the extension of power is integrally linked to a particular subject matter area.

(c)  I do not feel strongly as between the preceding arguments. There is however a point of some importance that flows from the dichotomy between competence and power that can be questioned. The significance condition in Clause 3(4) applies only to conferral of power under Article 4(1)(i) and (j), and then only in relation to conferral of power pursuant to the simplified revision procedure in Article 48(6) TEU. The assumption is that such a conferral of power may be insignificant, but that creation/extension of competence in relation to the other matters listed in Clause 4 cannot. This assumption does not withstand examination. The extension of competence in relation to, for example, an area in which the EU has competence to support, coordinate or supplement Member State action might equally be insignificant for the UK, but a referendum would nonetheless be mandatory in such cases.

(11)  Are the conditions on which the Minister decides that a Treaty change or decision amounts to the transfer/extension of an area of competence or power from the UK to the EU sufficiently clear?

(a)  The general answer to this question is as follows. Clause 5(3) imposes an obligation on the Minister to state whether in his opinion the Treaty amendment or Article 48(6) decision falls within Clause 4. This will not normally be problematic in relation to Treaty amendments that create a new category of competence, since this would then feature as an explicit addition to the relevant category of competence listed in Articles 3-6 TFEU. It may, however, be more contentious whether a Treaty amendment is regarded as extending an existing head of competence. The answer will depend implicitly or explicitly on the level of abstraction or detail at which the question is posed. Thus if one asks at a general level whether the EU has competence to regulate the flow of goods within the internal market the answer would be yes, and hence modification of the particular Treaty rules in this area would not be regarded as extending the competence thus defined. If, by way of contrast, the initial inquiry is more specific the answer might well be different. Thus if the initial inquiry is as to the more detailed Treaty rules that define the EU's regulatory competence over the flow of goods in the internal market, then a change to detailed rules is more likely to be regarded as extending competence in that area.

(b)  The preceding discussion addressed the question asked in relation to Treaty amendment and Clause 2 of the EU Bill. That analysis is equally applicable to Clause 3, but there are additional problems with Clause 3. It is predicated on a Decision made under Article 48(6) TEU that creates or extends EU competence, or confers power, in one of the ways listed in Clause 4. However neither the Bill, nor the EM, mentions the tension between this formulation and the fact that Article 48(6) TEU states expressly that a Decision made there under "shall not increase the competences conferred on the Union in the Treaties". This leads to the following tension. The EU makes a Decision pursuant to Article 48(6), which can only be intra vires if it does not increase competence. Clause 3 of the EU Bill by way of contrast is predicated on the contrary assumption, that a Decision under Article 48(6) could create or extend, and hence increase, competence. To be sure Clause 3(3) embodies the exemption condition, such that if the Article 48(6) Decision did not engage any of the issues in Clause 4 a referendum would not have to be held, and an Act of Parliament would suffice to validate the measure. This does not, however, alter the force of the point being made here: from the EU's perspective no Article 48(6) Decision can increase EU competence; from the perspective of the EU Bill some such Decisions can do so. This will inevitably lead to legal and political tension between the EU and UK. This is thrown into sharp relief by considering the sequence of events. The Prime Minister in the European Council agrees to an Article 48(6) Decision. Unanimity is required and hence if the Prime Minister agrees to the Decision it must be on the premise that it does not increase EU competence, since otherwise it would be ultra vires. The Prime Minister steps off the plane from Brussels, having penned his signature in good faith on the assumption that the Article 48(6) Decision did not increase competence. The premise behind Clause 3 is that a week or month later a Minister of the Crown calls for a referendum on the ground that the Article 48(6) Decision extends competence or power in one of the ways listed in Clause 4. In political terms the UK looks foolish to say the very least, and the judgment of the Prime Minister is inevitably called into question, since his affirmation that the Article 48(6) Decision is intra vires because it does not increase EU competence is contradicted by the later action of his Minister. Indeed the political fall out could well be worse. It seems inconceivable in political terms that a Minister of the Crown would invoke Clause 3 without clearance from the Prime Minister and Cabinet. If the Prime Minister were to give such clearance he would then be subject to the critique that at the very least his initial judgment in agreeing to the Article 48(6) Decision on the assumption that it did not increase EU competence was unsound. The political fall out might be greater: the Prime Minister might be accused of being disingenuous when agreeing to the Article 48(6) Decision. It might be contended that he always intended to invoke Clause 3 when back in the UK, on the premise that the EU Decision increased competence, thereby contradicting the assumption on which he signed the Article 48(6) Decision when in Brussels.

(c)  The decision as to whether there has been a transfer or extension of power to the EU is further complicated by Clause 4(4), and more especially Clause 4(4)(a), which provides that a Treaty amendment or Article 48(6) decision does not fall within Clause 4 merely because it involves codification of practice under the TEU or TFEU in relation to the previous exercise of existing competence. It could well be difficult to decide whether Clause 4(4)(a) is operative so as to obviate the need for a referendum and Act of Parliament. The difficulties in this respect are not dispelled by the example given in EM para 56. It is said that Clause 4(4)(a) would cover the case where the EU acted under Article 352 TFEU, the flexibility clause, because a measure was required for which there was no specific legal base. If a later Treaty change were to provide a specific legal base and that legal base merely codified existing use then no referendum would be required because the power had already been transferred. However if the new legal base did more than codify the existing use a referendum would be needed. There may well be real difficulties in deciding on this divide. It might also be argued that the underlying premise is itself questionable. The mere fact that EU action has been authorized in a particular instance under Article 352 is not necessarily the same as providing a new head of competence, even if the new head covers the same terrain as the specific measure enacted under Article 352. The reason is as follows. The specific measure enacted under Article 352 is just that, a measure that is accepted by the EU institutions at the time it is made. It is no guarantee that if an analogous situation occurred later the EU institutional players would necessarily decide that the conditions for Article 352 were met. By way of contrast the inclusion of a specific head of competence dealing with the relevant issue would provide a firm base for future EU action in that area.

(12)  Are the distinctions in the Bill between national approval by referendum, Act of Parliament or Resolutions of both Houses consistent with the nature of the competence or power being transferred or extended? This is an important question, the answer to which raises issues that may not have been fully perceived by the framers of the EU Bill.

(a)  The structure of the EU Bill in this regard can be summarised briefly as follows. Clause 2, Treaty amendment pursuant to the ordinary revision procedure in Article 48(2)-(5) TEU: there must be an Act of Parliament plus positive vote in national referendum, unless the exemption condition applies. Clause 3, a Decision made pursuant to the Simplified Revision Procedure in Article 48(6): there must be an Act of Parliament, plus positive vote in national referendum, unless the exemption or significance condition applies. Clause 6, the decisions listed therein are subject to Act of Parliament, plus positive vote in national referendum. Clause 7, the decisions listed therein are subject to approval by Act of Parliament. Clause 8 is concerned with Article 352 TFEU: the basic requirement is approval by Act of Parliament, or in one of the ways specified in Clause 8(4)-(5). Clause 9 deals with instances where Parliamentary approval is required.

(b)  The EM para 63 justifies the need for an Act of Parliament, plus referendum, in relation to the issues mentioned in Clause 6 on the ground that they are equally important in substantive terms as those dealt with in Clauses 2-3: they involve loss of the veto or entail transfer of competence. They should therefore in the view of the EM be subject to the same conditions as in Clauses 2-3, even though most decisions in relation to the matters listed in Clause 6 do not involve any Treaty revision. Clause 7 requires approval by Act of Parliament, but not a referendum, the general rationale being that these matters are less important.

(c)  A commentator might take issue with the disposition of issues as between Clauses 6 and 7, or with the matters included within Schedule 1 or 2. There is nonetheless a potential problem with the legality of this strategy, which must be confronted.

(d)  The Lisbon Treaty is carefully crafted with regard to the conditions that apply before a Treaty revision or decision can take legal effect within the Member States. Article 48(4) TEU specifies that amendments made under the ordinary revision procedure must be ratified in accord with the constitutional requirements of each Member State, and Article 48(6) specifies the same requirement in relation to a Decision made under the simplified revision procedure. Viewed from this perspective the provisions in Clause 2 are not problematic legally: if the UK chooses these pre-conditions for constitutional ratification so be it. The requirements in Clause 3 are also not problematic, insofar as Article 48(6) states that approval of such Decisions can be in accord with national constitutional requirements, although Clause 3 itself is deeply problematic for the reasons given in 11(b)(i). The political implications of these constitutional requirements will be considered below.

(e)  The situation with respect to the matters dealt with in Clauses 6-9 is different. These matters do not under the Lisbon Treaty require approval in accord with national constitutional requirements. Insofar as Clauses 6-7 deal with issues covered by Article 48(7) TEU, the general passerelle clause, the requirement is that an initiative under Article 48(7) TEU must be notified to the national Parliament, and that it should have the opportunity to make known its opposition. There is no requirement for positive approval via an Act of Parliament or a referendum. The difference in the legal position under the Lisbon Treaty in relation to the other matters listed in Clauses 6-9 is even greater. Clause 6 mandates an Act of Parliament plus referendum for all such matters. Clause 7 mandates an Act of Parliament. There is no authority for such requirements in the Lisbon Treaty. It would therefore clearly have been unlawful under EU law if the requirements for an Act of Parliament and a referendum had been specified as conditions for decisions/regulations on the matters listed in Clauses 6, after EU decisions on these matters had been made. It would equally have been illegal under EU law for an Act of Parliament to have been specified as a condition for the application of all the matters listed in Clause 7, after EU decisions on these matters had been made. This point is reinforced by the very fact that in some instances the Lisbon Treaty specifies that certain decisions can be subject to approval in accord with constitutional requirements,[15] the clear implication being that where this is not specified it is neither required nor allowed. The EU decisions/regulations/directives on these matters would be enacted and take effect in the normal manner specified by, for example, Article 289 TFEU and there would be no legal room for any limits in terms of referendum and/or Act of Parliament.

(f)  The framers of the EU Bill were cognizant of this and sought to "finesse" the problem by framing Clauses 6-8 in terms of pre-conditions for the UK minister to vote in favour of, or support, the relevant EU measures. This explains the wording of these Clauses: the schema is for a ministerial vote that leads to a draft EU decision, which can only be finalized after approval in a referendum and/or an Act of Parliament. It is therefore central to this strategy that these pre-conditions operate before the EU measure is finalized and takes legal effect. The key issue is whether this strategy is legally valid under EU law. This is, as one might say, a "nice" legal question.

(i)  The argument for the legality of this strategy would be along the following lines. The Lisbon Treaty requires ministerial consent in the Council before a measure is enacted. There is nothing to prevent this requirement of consent from being subject to certain conditions chosen by the Member State. If the Member State chooses to condition the consent in a case where unanimity is required on a referendum and/or Act of Parliament as in Clauses 6-7 it is entitled to do so, and the strategy is lawful in terms of EU law. The UK government would undoubtedly press this argument before the ECJ if the matter ever came before it.

(ii)  It would however be wrong to imagine that acceptance of the preceding argument would or indeed should be a foregone conclusion. It would be perfectly possible to craft the outlines of an ECJ decision which reached the contrary conclusion. Thus it could be argued that Clauses 6-8 are indirectly undermining the schema of the Treaty. The Lisbon Treaty is quite clear when approval in accord with the constitutional requirements of national law is required. This is true both in terms of Treaty revision, and in terms of the limited instances where such approval is a pre-condition for the validity of a particular EU decision. Viewed from this perspective, the drafting strategy that underpins Clauses 6-8 is simply trying to make approval in accord with national constitutional requirements a pre-condition where the Treaty does not allow it. It could further be argued that if Clauses 6-8 were lawful it would be open to any Member State to pick any other such conditions, which could prejudice passage of EU legislation requiring unanimity. It is, for example, difficult to see why a Member State could not condition its ministerial approval by a requirement that the Draft Decision should not be finalized unless and until national opinion surveys had been conducted over a year to test people's reaction to the draft measure. The preceding arguments could be further reinforced in other ways. Thus it could be contended that the schema in Clauses 6-8 does not meet the requirements of Article 16(2) TEU, whereby the national representative in the Council "commits" the government of his Member State. It is difficult to see in what sense the national representative would be "committing" his state when approval in a national referendum was a pre-condition for finalizing the decision. There may moreover be very real legal as well as political difficulties with the idea of a Council draft decision that "sits there" pending the UK Act of Parliament/referendum.

(13)  Are there areas of extension of competence and/or conferral of power which are not covered in the Bill? A brief answer: no. The EU Bill is "very British". Clause 4 covers any realistic, conceivable case. The only caveat is this. Clause 4(4)(c) in effect excludes new Treaty accessions from the need for a referendum. This raises an interesting issue. Given the zeal for involvement of the public via a referendum in all the instances listed in Clause 4 it is difficult to see precisely why the people should not have a "voice" in relation to new entrants, more especially because the impact of accession on the citizenry may be far greater than in relation to those issues where a referendum is provided under the Bill.

(14)  Is it clear what a Minister must take into account when deciding whether "in his opinion" a proposal under Clause 4(1)(i) and (j) is "significant"? How far in practice would such a decision be amenable to judicial review?

(a)  Clauses 3(4) and 5(4) provide no real indication of the criteria of significance. Nor does the EM paras 40-42 furnish much guidance in this respect.

(b)  The availability of judicial review would depend on the circumstances. Clause 3(4) assumes that an Act of Parliament approving the Article 48(6) Decision states that the decision only falls within Clause 4 because of Clause 4(1)(i) or (j), and that its effect is not significant in the UK. Judicial review is not in general available against a primary statute, and it would be difficult to imagine circumstances in which review pursuant to the HRA would be relevant. It is possible to conceive of circumstances in which judicial review might be sought of the ministerial statement made pursuant to Clause 5(4) if such an action were brought before enactment of the statute referred to in Clause 3(4). If the courts were willing to hear such a case, the judicial review would almost certainly be low intensity.

(15)  How far is a decision whether or not to hold a referendum a legal question, amenable to judicial review, and how far a political question? The relevant considerations in answering this question are as follows.

(a)  The EU Bill is framed in mandatory language. The holding of a referendum is not a matter within the discretion of the government. It must be held where mandated, subject to the exemption condition, the significance condition, and Clause 4(4). This suggests amenability to judicial review. This is more especially so because there will often be no plausible argument that the exemption condition applies, given the breadth of Clause 4, and the significance condition can only serve to deny a referendum in very limited circumstances concerning Clause 4(1)(i) and (j).

(b)  The principal difficulty is that if Parliament enacts a statute approving the Treaty amendment or Article 48(6) Decision without holding a referendum then any judicial review action would be challenging this primary statute. A legal action would run into traditional sovereignty reasoning: the courts do not review the validity of primary statutes in the UK. There are nonetheless two possible ways to surmount this objection.

(i)  An aggrieved citizen or MP might try to frame an HRA case, arguing that denial of the referendum violated one of the Convention rights brought into UK law by the HRA. The court would then review the Act of Parliament approving the Treaty amendment without the referendum pursuant to HRA sections 3-4.

(ii)  An alternative would be to argue that while the courts will not review the validity of primary statute on substantive grounds, they can do so in relation to arguments of manner and form. This is the "New View" of sovereignty advocated by writers such as Jennings, Heuston and Marshall, who contend that if, for example, an Act of Parliament specified that it could only be amended or repealed by a two thirds majority, then a later statute that made such change by a simple majority should not be recognized by the courts because it did not comply with the conditions for its enactment. It might be argued that the referendum requirement in the EU Bill is, by analogy, a manner and form condition, such that if a later statute were enacted without a positive vote in a referendum then the later Act of Parliament should not recognized by the courts. This reasoning is reinforced because of the wording of Clauses 2(2) and 3(2). The UK courts have not directly pronounced on the reasoning underlying the New View in relation to a case concerned solely with the UK.

(c)  There is another legal option available, which is to seek judicial review against the Minister. Clauses 3 and 6 impose a clear duty on the Minister not to approve a final EU decision unless the referendum condition is met and hence a judicial review action against the Minister might be contemplated if the Minister disregarded this condition. This may be scant comfort to the claimant if the Act of Parliament approving the EU measure has been enacted and if the EU measure has been finalized.

(16)  What might be the effect of Part 1 of the Bill on the UK's future relationship with the EU? The short answer: negative. There is little appetite for further Treaty reform after the near decade that it took to achieve ratification of the Lisbon Treaty, and this is exemplified by the Member States' initial reaction to Germany's push for minor Treaty reform to safeguard its position constitutionally in the light of action taken in the financial crisis. Notwithstanding this fact, the EU Bill is likely to be regarded with emotions ranging from dismay to anger within the EU and in many European capitals. The EU Bill is, notwithstanding the exemption condition and the significance condition, extraordinarily broad. It mandates a referendum and/or an Act of Parliament in relation to any Treaty change that extends or creates new competence, no matter how trivial or insignificant the change, and even in relation to any extension of the EU's objectives. The same requirements pertain to the matters listed in Clause 6, an Act of Parliament is required for the matters listed in Clause 7, with analogous restrictions operating in Clause 8. It is doubtful whether our European partners will view with equanimity the prospect of sitting on draft decisions while the UK enacts the relevant statute and organizes the referendum. It is equally doubtful whether they will be content with the delays and possible vetoes on Treaty reform when such amendment is deemed necessary. This adverse reaction is likely to be heightened if such changes are prevented by a negative vote in a referendum when the voter turn-out is small. I doubt whether significant numbers of voters will exercise their franchise in relation to many of the issues on which a referendum is mandated by the EU Bill. I would not wish to be the one seeking to engage voters to participate in a referendum on whether, for example, a shift to qualified majority voting in the context of enhanced cooperation should take place. The political reality is that voter turn-out will often be low, maybe embarrassingly so. If the vote is negative on a 10% total turnout and blocks the desired change our Treaty partners will not be pleased, nor will they think the result has much in the way of legitimacy. The legal reality under the EU Bill is nonetheless that a referendum must be held. Enactment of this Bill may well prove the truth of the old adage, be careful what you wish for because it might just come true.

20 November 2010

15   This includes decisions listed in Clause 7(2) of the Bill, which covers Arts 25, 223(1), 262, 311 TFEU. The decisions covered by Clause 7(4) contain no requirement or authorization for approval in accord with national constitutional requirements. Back

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