The EU Bill: Restrictions on Treaties and Decisions relating to the EU - European Scrutiny Committee Contents


Written evidence from Michael Gordon, Lecturer in Law, University of Liverpool

RE: PART 1 OF THE EUROPEAN UNION BILL (RESTRICTIONS ON TREATIES AND DECISIONS RELATING TO THE EU)

1.  The call for written evidence issued by the European Scrutiny Committee acknowledges the potentially important impact that Part 3 of the EU Bill could have on the doctrine of parliamentary sovereignty. It is important to note, however, that the doctrine of parliamentary sovereignty may also be affected by Part 1 of the EU Bill. For, in requiring referendums to be held in a range of situations before further competence or power can be transferred from the UK to the EU, Part 1 of the Bill can be seen as attempt by the present Parliament to bind its successors, something traditionally thought to be constitutionally impossible.

2.  This submission will contend that this traditional understanding of parliamentary sovereignty can no longer be supported, and seek to explain why the steps taken in the EU Bill to place "referendum locks" on future Parliaments are constitutionally permissible. Nonetheless, given the undoubted significance of the measures here proposed, the constitutional desirability of making these fundamental changes to the legislative process must be fully explored.

3.  In what sense can the EU Bill be said to be an attempt by Parliament to bind its successors? By Clause 2, a treaty amending or replacing TEU or TFEU can only be ratified once approved by an Act of Parliament which must satisfy either the referendum condition or the exemption condition. The approving Act must therefore either (i) provide for a referendum to be held on the proposed treaty changes; or (ii) provide that the proposed changes do not have the kind of impact caught by Clause 4. An Act of Parliament which purported to approve the ratification of a treaty amending or replacing TEU or TFEU but which satisfied neither requirement (i) nor requirement (ii) would be insufficient to authorise the proposed alterations. Therefore, when a future Parliament seeks to legislate to authorise the amendment or repeal of TEU or TFEU, whether a referendum is deemed to be required or not, an additional legislative hurdle has been put in place by Clause 2.

4.  Similarly, by Clause 3, a Minister may not confirm an Article 48(6) decision of the European Council unless it has been approved by an Act of Parliament which must satisfy the referendum condition, the exemption condition or the significance condition. In relation to Clause 3, the approving Act must therefore (i) provide for a referendum to be held on the proposed decision; or (ii) provide that the proposed decision does not have the kind of impact caught by Clause 4; or (iii) provide that the decision falls within a specified part of Clause 4 only, and will not have a significant impact on the UK. An Act of Parliament which purported to approve the adoption of an Article 48(6) decision but which satisfied neither requirement (i) nor requirement (ii) nor requirement (iii) would be insufficient to authorise the change proposed. Again, therefore, as with Clause 2, when a future Parliament seeks to legislate to authorise the adoption of an Article 48(6) decision, whether a referendum is deemed to be required or not, an additional legislative hurdle has been put in place by Clause 3.

5.  The actual impact in practice of these additional legislative hurdles will of course vary depending on whether the Minister deems a referendum to be required or not. When a referendum is deemed to be required, because in relation to Clause 2 the proposed change is not exempt, or in relation to Clause 3 the proposed change is neither exempt nor insignificant, the additional hurdle will be substantial: a majority of those voting in the referendum will have to be in favour of the change proposed for it to be lawfully authorised by Act of Parliament. Where a referendum is not deemed to be required by the Minister, the additional hurdle will be insubstantial: all the approving Act need do here is explicitly provide that the planned measure is either exempt or insignificant (where the latter option is available) for the proposed change to be lawfully authorised. While it may therefore appear that the legislative process has only actually changed where a referendum is deemed to be required by the Minister, due to trivial nature of the additional action required of Parliament to satisfy either the exemption condition or the significance condition, this is not strictly accurate. That the additional legislative hurdles put in place by Clauses 2 and 3 will necessarily vary in the extent of their practical impact does not detract from the fact that all still constitute additional legislative hurdles. Whether a future Parliament legislates subject to the requirement that a referendum must be held, or subject to the requirement that the proposed measure must be declared to be exempt or insignificant, the legislative procedure which must be followed to produce approving Acts for the purposes of Clause 2 or 3 will be altered by the EU Bill.

6.  That the EU Bill constitutes an attempt by the present Parliament to bind its successors is even more clearly demonstrated by Clause 6. In the circumstances covered by Clause 6, a Minister can only support a decision when it has been approved by an Act of Parliament which satisfies the referendum condition. There is no opportunity for a Minister to declare the decision exempt from the requirement that a referendum be held: a decision which falls into Clause 6 will always require a majority of those voting in a referendum to support it before an approving Act of Parliament can lawfully authorise the proposed change. In relation to decisions covered by Clause 6, it is presumed that their adoption would have a significant impact on the UK, either through a considerable transfer of power or competence from the UK to the EU, or through the removal of the UK's veto in a range of policy areas. As a result, a future Parliament will only be able to legislate to authorise a decision covered by Clause 6 subject to the proposed change being approved in a referendum. The additional legislative hurdle put in place by Clause 6 of the EU Bill will always be substantial, and is also unavoidable, due to the absence of a mechanism enabling a Minister to judge a decision exempt.

7.  The EU Bill can therefore be seen as an attempt by the present Parliament to bind its successors. Clauses 2, 3 and 6 limit the capacity of future Parliaments to legislate to approve the ratification of treaties which amend TEU or TFEU or the adoption of decisions in a range of areas which transfer power or competence from the UK to the EU without further steps also being taken: future Parliaments will be subject to additional legislative hurdles. In many cases, the additional legislative hurdle will be that a referendum must be held. This would be a substantial practical limitation on Parliament's freedom to legislate, as a negative result in the referendum would prevent the lawful authorisation of the relevant treaty or decision.

8.  A serious question must thus be confronted: is this constitutionally possible? The UK constitution is underpinned by the doctrine of parliamentary sovereignty, according to which Parliament has legally unlimited legislative authority. Does this doctrine mean that the present Parliament can use its sovereign power to alter the legislative process that must be adhered to by future Parliaments? Or is a future Parliament entitled to exercise its sovereign power without regard to the requirements of the EU Bill, and legislate to authorise the ratification of a treaty or the adoption of a decision covered by Clause 2, 3 or 6 without complying with the referendum condition, or, where relevant, the exemption or significance conditions? This is likely to be a matter of fundamental constitutional importance, for a future government which is seriously inhibited from taking action which would expand the competence or power of the EU, either as a result of a defeat in a referendum or an unwillingness even to hold a referendum due to the prospect of defeat, could well consider attempting to legislate to authorise the proposed change disregarding entirely the provisions of the EU Bill.

9.  So can a sovereign Parliament bind its successors? The notion of sovereignty itself provides no inherent solution to this constitutional conundrum. Past opinion and practice must therefore be briefly considered. A.V. Dicey, the classic authority on parliamentary sovereignty, believed that Parliament was not empowered to bind its successors, and argued that "a sovereign power cannot, while retaining its sovereign character, restrict its own powers by any particular enactment". However, Sir Ivor Jennings, among others, disagreed. According to Jennings, Parliament could bind its successors in a particular way: by changing the manner and form required for legislation to be produced. While absolute limits could not be placed on Parliament's sovereign power, changes made by one Parliament to the legislative procedure would have to be adhered to by future Parliaments for statutes to be validly enacted. For, according to Jennings, if Parliament "has for the time being power to make laws of any kind in the manner required by the law", any law made by the Queen-in-Parliament "will be recognised by the courts, including a rule which alters this law itself". For Jennings and others, that Parliament possessed the power to alter the law-making process was a manifestation, not a limitation, of its sovereign legislative authority. This "manner and form" view was, however, rejected by Sir William Wade who influentially insisted that the rule that the courts will always accept Acts produced by the Queen-in-Parliament was a "political fact" which could not be altered by legislation, as it was the very source of legislative authority.

10.  Wade further took the case of Ellen Street Estates v. Minister of Health [1934] 1 K.B. 590 to preclude Parliament from binding its successors as to the future legislative procedure. In this case, Maugham LJ claimed that "[t]he Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation". However, as Jennings noted, this observation was made obiter, and therefore was not legally binding, for no genuine attempt had been made by Parliament in the statute considered by the Court of Appeal in Ellen Street Estates to alter the manner and form for legislating that future Parliaments would have to follow. An alternative perspective to that provided obiter in Ellen Street Estates can be seen in a trilogy of merely persuasive authorities from Australia (Attorney-General for New South Wales v. Trethowan [1932] AC 526), South Africa (Harris v. Minister of the Interior 1952 (2) SA 428) and Sri Lanka (Bribery Commissioner v. Ranasinghe [1965] AC 172). In all three cases, additional legislative hurdles similar to those set out in the EU Bill were upheld, and in the Ranasinghe case, decided by the Privy Council, Lord Pearce suggested that even a sovereign legislature "has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law".

11.  Nonetheless, this is far from definitive. The lack of a clear authority indicating whether the UK Parliament has the power to alter the manner and form which must be adhered to for legislation validly to be enacted (and in so doing binding its successors) is primarily due to the fact that Parliament has mostly refrained from interpreting its sovereign power in this way. Few attempts have been made by Parliament to modify the legislative process in an Act of Parliament. Section 1 of the Northern Ireland Act 1998, according to which a referendum would have to be held in Northern Ireland before the nation could cease to be part of the UK, is a notable exception, but it does remain an exception.

12.  In recent years, however, it has become increasingly plausible to assert that Parliament has interpreted its sovereign power as including the authority to change the manner and form for the enactment of valid legislation, an interpretation which it was never conceptually prohibited from adopting. For Parliament has now legislated to change the law-making procedure applicable in certain contexts both implicitly and explicitly, and these changes have been upheld as lawful by the courts.

13.  Parliament has done so implicitly by passing the European Communities Act 1972 which has, in effect, changed the manner and form for Parliament to produce successfully legislation which violates EU law. As Clause 18 of the present EU Bill will confirm, Parliament still retains the capacity to contradict EU legal norms. However, following R. v. Secretary of State for Transport, ex p. Factortame (No. 2) [1991] 1 A.C. 603, in which the House of Lords had to afford domestic supremacy to EU law, Parliament must now adopt a particular manner and form to enact legislation which violates EU law: to be valid, a statute which substantively breaches EU law must expressly state that it is to take effect regardless of section 2(4) of the ECA 1972.

14.  Parliament has further altered the law-making procedure explicitly by passing the Parliament Acts 1911 and 1949, replacing the absolute legislative veto of the House of Lords with a delaying power. In the critical recent case of R. (Jackson) v. Attorney General [2005] UKHL 56; [2006] 1 A.C. 262, the House of Lords was called on, in its judicial capacity, to consider the legal status of the Parliament Acts. The argument derived from Wade that the Parliament Acts had created a subordinate legislature of the House of Commons and Queen was decisively rejected by the Law Lords. Instead, the court held that Parliament had, in the words of Lord Bingham, created "a new way of enacting primary legislation", or what Lord Nicholls called a "parallel route by which... any public Bill introduced in the Commons could become law as an Act of Parliament". This decision is of profound importance for present purposes, for here the House of Lords held that Parliament had the power to effect a statutory alteration of the manner and form to be adhered to for the enactment of valid primary legislation. As Baroness Hale observed obiter, although arguably explaining the necessary implications of the court's decision in Jackson, "[i]f the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, it may very well be that it can also redefine itself upwards, to require a particular parliamentary majority or a popular referendum for particular types of measure".

15.  The EU Bill can therefore be seen as further confirmation of a recalibration of our understanding of the doctrine of parliamentary sovereignty. If it was arguable prior to the creation of this Bill, as I submit it was, that the manner and form understanding of parliamentary sovereignty offered the best available explanation of contemporary constitutional practice, in particular following the decision of the House of Lords in Jackson, then now the constitutional position seems clearer still. Our understanding of the nature of the doctrine of parliamentary sovereignty has shifted, and Parliament must now be understood to possess the power to change the manner and form which must be followed for valid legislation to be lawfully enacted. In short, Parliament can now bind its successors, not absolutely, but as to the manner and form of future legislation. As a result, the changes to the legislative process envisaged by the EU Bill can be seen as constitutionally permissible.

16.  The changes to the legislative process proposed in the EU Bill will therefore bind future Parliaments. It is of course the case that the EU Bill makes no attempt to entrench the requirement that referendums be held in the circumstances provided for, by stipulating, for example, that Clause 2, 3 or 6 could only be repealed by legislation approved at a referendum. This lack of entrenchment ensures that a future Parliament could in principle, if it were judged to be necessary, repeal, entirely or partially, the EU Bill by an ordinary Act of Parliament. However, on the assumption that the EU Bill is passed in its present form, until such a repeal was effected (if ever), any future Parliament would be required to adhere to the terms of Clause 2, 3 or 6 to enact valid legislation on any matter covered by these provisions while they remain on the statute book. The changes to the manner and form for the valid enactment of future legislation made by the EU Bill will therefore be of full legal effect unless or until repealed, with future Parliaments unable to legislate to authorise the ratification of treaties or the adoption of decisions covered by Clause 2, 3 or 6 other than in accordance with the modified legislative procedure.

17.  Nonetheless, while the enactment of these "referendum locks" is not constitutionally prohibited, and can be reconciled with the doctrine of parliamentary sovereignty, the matter of the constitutional desirability of these changes remains. The changes to the manner and form required for legislative action in the areas covered by Clauses 2, 3 and 6 must be examined in context. Parliament has historically been extremely reluctant to introduce onerous additional legislative hurdles which would bind future Parliaments, and the EU Bill deviates radically from this past practice.

18.  The EU Bill will require referendums to be held to authorise the ratification of treaties or the adoption of decisions in a significant range of situations. The breadth of areas in which a referendum will be required is striking, especially when it is considered that the UK-EU relationship is being singled out for this exceptional treatment. The Bill will give UK citizens far more say in the structure and development of the EU's constitutional arrangements than those of the UK itself. It is therefore especially difficult to justify adequately the extensive use of referendums to authorise the further alteration of the powers and institutional structure of the EU when the population of the UK is provided with no similar potentially wide-ranging involvement in the development of the domestic system of governance. While in recent years referendums have begun to be utilised more frequently as a way of validating domestic constitutional change, with national referendums being held in Scotland and Wales in 1997 and in Northern Ireland in 1998 prior to the devolution settlement being established, and a UK-wide referendum now planned on the voting system of the House of Commons, there is no guarantee that even the most critical areas of the UK constitution will in future be reformed in accordance with the wishes of the population expressed in a specific plebiscite. The EU Bill can therefore be seen to treat the development of the EU as if a matter of unique interest to UK citizens, a judgment which seems unsustainable.

19.  Further, the extensive range of situations in which a referendum would be required under the EU Bill could exacerbate voter apathy. Can it be said that a referendum to protect the UK's veto in any one of a number of contexts, such as those delineated, for example, in Schedule 1, would be likely to animate citizens in such a way as to ensure something approaching a sufficient turnout could be achieved? While there may be a strong democratic case for guaranteeing the use of referendums in the circumstances of a palpable, substantive shift of power from the UK to the EU, the EU Bill seems to go well beyond this in requiring referendums to be held on what could be viewed as relatively esoteric issues. Consequently, the question of how adequate voter turnouts could be obtained, to ensure that the result of any referendum held is seen as legitimate, requires full consideration. Yet there are no easy solutions, for legislating to impose a minimum turnout threshold which would have to be met for the result of a referendum to have legal effect would be likely to cause further problems, with the prospect of repeat referendums inducing even greater voter fatigue.

20.  The EU Bill therefore takes the UK into uncharted constitutional territory. While the present Parliament binding its successors as to the manner and form of future legislation, in the way outlined above, should not be understood to be constitutionally prohibited, this dramatic divergence from past practice must be comprehensively evaluated. Given the UK's traditions of constitutional flexibility and the primacy of political as opposed to legal limits on legislative authority, Parliament must be wary of placing itself in a straightjacket. While it may have the constitutional power to do so, Parliament should not too readily provide that its legislation shall take effect subject to the approval of the general population in a referendum. The fact that the EU Bill does not purport to entrench itself, noted above, does serve formally to preserve Parliament's ultimate constitutional authority, for any future Parliament could outright repeal the EU Bill by an ordinary Act of Parliament. Nevertheless, it may be difficult in practice for a government to seek to justify an attempt to remove legal rights to popular participation in the legislative process from citizens. As such, Parliament should proceed cautiously when making such profound alterations to the future legislative process. While the ordinary law-making procedure which requires only the assent of the House of Commons, House of Lords, and Queen for a statute to be enacted should not be viewed as sacrosanct, extensive changes to the legislative process must be fully justified. If this consideration is taken into account, it would seem to indicate that the kind of "referendum locks" proposed by the EU Bill should be reserved for truly exceptional cases of the utmost constitutional or political significance only, when an informed and engaged population can quite properly resolve questions of critical national importance, rather than being employed excessively in relation to a single area of political activity.

7 December 2010




 
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