Written Evidence from Professor Paul Craig,
St John's College, University of Oxford
PART 3, STATUS
OF EU LAW,
THE PARLIAMENTARY
SOVEREIGNTY CLAUSE
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.
PART 1, RESTRICTIONS
ON TREATIES
AND DECISIONS
RELATING TO
THE EU
(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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