The European Union Act 2011: three key questions

By Mike Gordon, Lecturer in Law, Liverpool Law School, University of Liverpool

This post originally appeared on the UK Constitutional Law Group Blog and is re-posted here with thanks.

The European Union Act 2011 (EUA) is an unprecedented constitutional experiment.  This post will outline the two main innovations of the Act: (1) the section 18 ‘sovereignty’ clause; and (2) the scheme of ‘referendum locks’ introduced in sections 2, 3 and 6.  Three key questions raised by the EUA for UK constitutional lawyers will then be identified, and some tentative responses to these questions sketched.  The post draws on an article written in collaboration with my colleague Michael Dougan, which is to be published in the February 2012 edition of the European Law Review.

(1)  The ‘sovereignty’ clause

The provision contained in section 18 of the EUA was originally projected to be a ‘sovereignty’ clause, intended to reaffirm the sovereign character of the legislative power of the UK Parliament.  Yet the final text of the provision enacted in the EUA is no ‘sovereignty’ clause at all; instead, section 18 simply confirms the narrower point that the status of EU law within the UK is ultimately dependant on its continuing statutory basis.  In other words, section 18 maintains that EU law is effective and supreme over other domestic norms because an Act of Parliament, the European Communities Act 1972, makes it so.

(2)  The ‘referendum locks’

The ‘referendum locks’ introduced in sections 2, 3 and 6 of the EUA form part of a broader system of control over the making of various decisions related to the EU.  While the Act provides that some categories of decision must be approved by Act of Parliament (see e.g. section 7), and others merely subject to Parliamentary Approval (see e.g. section 10), the ‘referendum locks’ are the EUA’s most demanding control mechanism.

The locks provide that certain decisions can only be lawfully authorised by an Act of Parliament which makes the subsequent effectiveness of the decision contingent on whether it has been approved by a majority of the electorate voting in a referendum.  The range of situations in which the EUA requires a referendum to be held to authorise action to be taken in relation to the EU is remarkably broad.

Section 2 covers any treaty amending or replacing the existing EU Treaties, although a treaty which does not transfer power or competence from the UK to the EU, in accordance with section 4 of the EUA, will be exempt from the requirement that a referendum be held.  Section 3 covers changes to the existing EU Treaties made using the ‘simplified revision procedure’ under Article 48(6) TEU, although again, a referendum may not be required if the treaty is exempt from the criteria set out in section 4, such that power or competence is not transferred from the UK to the EU.  In relation to section 3 only, a significance test may also be applied in relation to some specific types of transfer of power or competence, with those that are not significant to the UK failing to attract a referendum under the Act.

Section 6, in contrast, sets out a series of trigger events, which will automatically require approval by Act of Parliament and at a referendum.  Most of these trigger events relate to changes in the EU’s voting rules – in particular, certain extensions of QMV – but a number of specific decisions which would significantly affect the UK-EU relationship (such as joining the euro, the removal of border controls under the Schengen Protocol, or participation in a European Public Prosecutor’s Office) would also attract a referendum under section 6.

Three Key Questions Raised by the EUA

The two elements of the EUA highlighted above clearly raise a number of important constitutional issues, for section 18 seeks to clarify the status of EU law within the UK, while the scheme of referendum locks contained within the Act purports to ensure that future transfers of power or competence to the EU from the UK will take effect subject to approval at a national referendum.  Yet there are three key questions which are worthy of particular attention.

 (i)   What is the impact of the EUA on the sovereignty of Parliament?

When the changes incorporated in the EUA were first proposed, it might have been thought that section 18 would have been of greater importance to our understanding of the current status of the doctrine of parliamentary sovereignty.  After all, section 18 was to be a ‘sovereignty’ clause, and could have required a range of interesting problems to be confronted.  Could a sovereign Parliament legislate to confirm its own sovereignty?  What practical effect would such a clause have on the courts and other constitutional actors?

Yet in its ultimate incarnation, section 18 raises few such issues; indeed it tells us little we did not already know from the famous judgment of Lord Bridge in Factortame (No. 2) [1991] 1 A.C. 603.  Section 18 implies that Parliament remains sovereign, for the domestic supremacy of EU law fundamentally depends on an Act of Parliament.  If this is the case, section 18 seems to invite us to infer, the supremacy, and indeed effectiveness, of EU law within the UK could be withdrawn by an Act of Parliament. This is, however, far from revolutionary, and section 18 arguably therefore emerges as a useful reminder at best, and somewhat of a distraction at worst.

More controversial by far are the EUA’s referendum locks.  For here, it seems, is a Parliament moving away from Dicey’s constitutional orthodoxy, and attempting to bind its successors as to the manner and form of future legislation.  Whether the referendum locks will be viewed as legally binding ultimately depends on what perspective is taken:  those who follow Wade’s line that Parliament cannot alter the political fact of its sovereignty will believe such statutory conditions to be unenforceable, whereas those who are persuaded by Jennings and Heuston’s alternative understanding of legally unlimited legislative power may be convinced that Parliament has made a valid alteration to the future law-making process.

It is not easy to predict which view will prevail.  Nevertheless, the rhetoric surrounding the Act – in particular the very language of ‘locks’ – coupled with the failed attempt to insert a sunset clause into the legislation as it passed through the House of Lords (which implies that such a clause would have be needed to cause the referendum requirements to lapse) provides some evidence that the government may have induced Parliament to bind its successors to an altered future manner and form, even if this was not explicitly acknowledged.  Perhaps, then, the EUA can be seen as building on the decision of the House of Lords in Jackson [2005] UKHL 56, and confirming a modern shift to the manner and form understanding of parliamentary sovereignty.

Of course, even if this is accepted, it is crucial to note that the EUA’s referendum locks will only bind future Parliament’s for as long as they remain on the statute book.  These locks are in no sense entrenched, and could doubtlessly be expressly repealed in a future Act.  Nonetheless, the political cost of so doing may be high, due, for example, to the difficulties inherent in justifying to citizens the removal of legal rights to popular participation.  And it is for this reason that it will still be important to establish whether or not the EUA’s referendum locks can be reconciled with the sovereignty of Parliament; if they cannot, and the manner and form conception of the doctrine is rejected, the locks can be readily disregarded by future governments, as they will be impliedly repealed by any Act of Parliament authorising action in relation to the EU that the EUA would otherwise purport to control.  For a government to adopt such a strategy would be risky, creating considerable uncertainty pending the outcome of any legal challenge, while potentially appearing disingenuous to the public, and as such, it might be prudent for a manner and form understanding of the EUA to be embraced on pragmatic grounds.

(ii)  What will be the impact of the EUA on the UK-EU relationship?

It is difficult to predict what impact the EUA will have on the relationship between the UK and the EU, but a number of factors suggest that this impact is not likely to be positive.  The system of referendum locks introduced by the EUA goes much further than any equivalent regime in any other Member State.  To some extent, then, the UK has set itself up as an exception in comparison to its fellow EU members, a fact which is unlikely to win the UK friends in Brussels if the effect of the locks is to obstruct future reform.  Such obstruction could occur through a failure to win a required referendum in relation to a specified revision of the EU Treaties, or a government simply refusing to agree to proposed changes to avoid even holding a referendum in the first place.

Indeed, while potentially disruptive to the EU, it is not hard to see why a future government would adopt such an attitude.  The EUA might require the holding of referendums on a range of esoteric issues (a referendum would need to be held, to give one example, to allow the Council to act by qualified majority, rather than unanimously, when making changes to the list of military products exempt from internal market provisions pursuant to Art 346 TFEU).  It would be very difficult even for well informed citizens to engage with such issues, and it is therefore possible that the outcome of the referendums would be determined by a smaller number of groups and individuals with strong preordained views about the EU.  Perhaps any such referendum would essentially morph into an ‘in-or-out’ referendum on the EU – a matter which, surprisingly, the Act does not provide for.

It thus remains to be seen whether the EUA will contribute to the UK becoming sidelined within the EU.  Yet with the government seemingly willing to veto revision of the EU Treaties even where the Act’s referendum locks would not have been legally engaged – as would appear to be the case in relation to the UK’s refusal to agree at the negotiations in Brussels in December 2011 to a revision of the EU Treaties to incorporate a ‘fiscal compact’ among other things – the EUA could well exacerbate the UK’s increasing isolation.

(iii) What does the EUA tell us about the place of referendums in the UK constitution?

The EUA offers further evidence of the growing importance of referendums in the UK constitution.  Referendums are clearly a versatile democratic tool, having recently been used to give citizens an opportunity to determine whether to adopt the AV voting system for elections to the House of Commons (and simultaneously enabling a political disagreement between coalition partners to be bypassed), while a referendum of some kind on Scottish independence, effecting the right to self-determination, looms on the horizon.  In the EUA, in contrast, referendums are used as a ‘lock’, to inhibit the freedom of action of the government of the day in particular, but also to block the extension of the power and competence of the EU with respect to the UK (and perhaps even the expansion of the EU more generally).

The value and importance of the referendum as a constitutional device can thus be recognised, while nevertheless acknowledging genuine concerns about the use made of the mechanism in the EUA.  The scope of the EUA’s referendum locks can be criticised as excessive:  this could produce voter fatigue if frequent referendums are held on marginal issues.  If turnout to vote in such referendums is low, the legitimacy both of the actual decisions reached, and direct democracy more broadly, could be questioned.

Further, it is not altogether clear why the UK’s relationship with the EU is singled out for special treatment –  if referendums are to be guaranteed here, should they not also be guaranteed in relation to fundamental changes to the UK’s own internal constitutional arrangements?  While the focus on the UK-EU relationship can be explained by party political preoccupations, this does not mean it is justified.  Ultimately – as with all matters discussed in this post – it will take time to discern the impact of the EUA on UK constitutional practice relating to referendums.  Yet the fact that the EUA does not make good use of referendums should be seen as a flaw of the Act, and not of direct democracy itself.

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