Brexit Negotiating Terms of Reference

Dr Iyiola Solanke

At their first meeting in Brussels today, Michel Barnier and David Davis agreed overall Terms of Reference for the forthcoming Brexit negotiations. The Terms of reference set out a general structure and schedule for negotiations between now and October 2017. After today’s formal opening, actual talks will begin in July. Round 1 will take place in the week commencing July 17th followed by Round 2 in the week of August 28th, Round 3 in the week of September 18 and Round 4 in the week of October 9th. We do not yet know what happens beyond that date.

Setting the pattern for future negotiations, the joint post-meeting press conference was held in English and French, with interpretation provided by the European Commission. All negotiations and working documents will be produced in these two languages. The negotiations themselves will take place on two levels – general plenary sessions and smaller group meetings. The document states that each round of negotiations ‘should’ comprise public officials of both sides only however this leaves scope for others, such as business leaders and bankers, to also take part. Names are not given, but Politico has helpfully produced a list of the key players on each side.

Plenary negotiating sessions will be co-chaired by so-called ‘Principals’ and/ or ‘Co-ordinators’ – presumably from the central team on each side. These persons will have overall responsibility both for keeping the process on track and providing advice. They will also have responsibility for a specific dialogue on Ireland/ Northern Ireland, launched today.  It is not clear who will lead/co-ordinate the smaller group meetings or how many there will be – the ‘Principals’ have discretion to create additional working groups, sub- groups or indeed organise ‘breakout sessions’ as required.

In total, just 3 negotiating groups were created today. Two are very specific: Citizens’ Rights and Financial Settlement. The latter will clearly deal with the Brexit Bill and the former will focus on the situation of EU citizens in the UK and UK citizens in other parts of the EU. It is also to be hoped that it will deal with the situation of Zambrano carers whose rights to remain in the UK to look after their British citizens children also derive from EU law. The final negotiating group created today has a general remit and will focus on other Separation Issues.

The basis of the negotiations will be texts created by either side. There is no specific timeframe for sharing these materials – the document simply rather limply states that ‘Negotiation texts that are intended for discussion at any negotiating round should be shared at least one week in advance wherever possible.’ This is surprising – given the ever-decreasing timeframe, tighter rules on the exchange of documents might have been better.

The timeframe is also loose – the above-mentioned ‘Negotiation rounds’ will ‘in principle’ take place during one week in every month. However, this is a loose arrangement which can be departed from by mutual consent. Negotiators may also meet informally in between formal sessions to prepare negotiations. Continue reading

Brexit: a separate citizens’ rights agreement under Article 50 TEU

Stijn Smismans, Professor of EU Law, Cardiff University

Why a separate citizens’ rights agreement under article 50 is required

The European Council Guidelines for the Brexit negotiation adopted on 29th April 2017 (further referred to as Negotiation Guidelines), as well as the Council Directives for the negotiation adopted on 22nd May 2017 (further referred to as Negotiation Directives), show a clear EU commitment to defend the rights of the nearly five million people whose lives are most directly affected by Brexit, namely the EU citizens residing in the UK, and British citizens residing in the EU.  The Negotiation Directives clearly state that the withdrawal negotiations should ensure  ‘the necessary effective, enforceable, non-discriminatory and comprehensive guarantees’ and they favor a rather maximalist defense of the rights of these citizens (including judicial protection by the CJEU). The UK’s promises to protect the rights of these citizens are comparatively vague.  However, both the EU and the UK have agreed that dealing with the rights of these citizens is the first priority of negotiations. However, there is no procedural guarantee that these citizens would not end up as a bargaining chip.

The Negotiation Guidelines and Directives provide for a phased approach to the negotiations.  However, this phased approach aims primarily at separating the negotiation of the withdrawal settlement under Article 50TEU (phase 1) from the negotiation of an agreement on the future relationship between the UK and the EU (phase 2).  In addition to that, it provides for a second stage within the first phase (Article 50 withdrawal settlement).  In that second stage, the withdrawal negotiation can start to reflect on the potential scenarios for the future UK-EU relationship.  Article 50 requires ‘taking account of the framework for its [withdrawing Member State’s] future relationship with the Union’ when dealing with the withdrawal agreement.  However, the Guidelines state clearly that this second stage of the first phase will only start when the European Council has decided that there is ‘sufficient progress’ on the issues identified as priorities of the first phase.

Citizens’ rights have been identified as the first item on the agenda of the first phase of the negotiation process.   The proposed ‘phasing’ thus gives some level of separating citizens’ rights from other parts of the negotiation.  However, this is far from ring-fencing. The EU has taken the approach that as far as the withdrawal issues (phase 1) are concerned ‘nothing is agreed until everything is agreed’. This at least means that citizens’ rights issues might be traded off against other topics of the first phase of negotiation, such as the financial settlement and the Ireland-Northern Ireland border issue.  Moreover, they may even be influenced by the reflections about the future UK-EU relationship which will appear on the negotiation table as issues ‘to be taken into account’ prior to the finalisation of the Article 50 withdrawal agreement.  Hence, EU citizens in the UK and British in the EU remain fully at risk of becoming bargaining chips.

The proposed negotiation procedure entails two additional dramatic consequences for the 4.5 million citizens directly affected.  The principle ‘nothing is agreed until everything is agreed’ unnecessarily prolongs the uncertainty these people are living in.   Moreover, in the case that the withdrawal agreement fails, citizens will find themselves in a legal limbo with dramatic consequences.

The only solution to solve the uncertainty of 4.5 million people is to adopt an agreement on citizen’s rights at the start of the Article 50 negotiation, independently from other withdrawal issues.

So why has it not happened so far?

One can understand the EU’s reluctance to negotiate on citizens’ rights PRIOR to the triggering of Article 50.   The UK referendum was merely an internal affair as long as Article 50 had not been triggered.   Moreover, if negotiating a citizens’ rights agreement prior to Article 50 had been attempted, it would not have profited from the decision-making procedure of Article 50 (which allows for the agreement to be adopted via Qualified Majority in Council and consent by the EP, and thus not requiring ratification by national parliaments in the EU 27). Negotiation outside Article 50 would be more cumbersome since it may require ratification by all national parliaments.  Hence the ‘time advantage’ of starting negotiation prior to triggering Article 50 would immediately have been lost as the procedure itself would slow down the process.  Finally, the EU feared that negotiation on partial issues prior to the triggering of Article 50 would undermine the unity of the EU 27.

However, now that Article 50 has been triggered, there is no reason why a separate agreement on citizens’ rights cannot be negotiated prior to all other issues.

The moral argument in favor of that remains as strong as ever before.  The strategic argument of the EU that it would encourage ‘cherry-picking’ is also hardly convincing.  The EU has by now set out  its institutional framework, priorities and strategy for the negotiations.  It is no longer unprepared, and has the institutional mechanism in place to ensure unity in response to the UK in negotiations.  Moreover, arguments that a separate citizens’ rights agreement opens the way for cherry-picking are based on the wrong assumption.  Accepting ring-fencing for citizens’ rights does not create any obligation to do the same for other issues.  There is a strong moral argument to state: ‘a separate agreement will only be done on citizens’ rights given the human costs involved’.  As will be shown below that does not create any legal precedent for the EU to accept separate agreements on other issues.

The only remaining question then is whether it is legally possible. More precisely, the question is whether the rights of post-Brexit EU citizens can be legally ring-fenced from other negotiation topics and be safeguarded prior to the end of the withdrawal negotiation, and in a way that it stands even in failure of the latter.

To show whether ring-fencing is legally possible we need to address three questions:

  • Is it possible to adopt a separate agreement on citizens rights signed under Article 50?
  • How to ensure procedurally that the negotiation of these citizens’ rights, and of this separate agreement, is not mixed up with other Brexit negotiation issues (ring-fencing in the strict sense).
  • How to ensure that the agreement comes into force even if other aspects of the Brexit negotiation fail (safeguarding)

Is a separate agreement legally possible under Article 50 TEU?

As confirmed in Article 5 of the Negotiation Guidelines, Article 50 TEU confers on the Union an ‘exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal. This exceptional competence is of a one-off nature and strictly for the purposes of arranging the withdrawal from the Union.’ There is no doubt that addressing the rights of the 4.5 million is inherently an issue of withdrawal, and can thus be dealt with via Article 50.  These are issues on which the EU has been able to act on behalf on the Member States so far, and this competence extends (thanks to Article 50) to dealing with all withdrawal aspects related to it.

However, Article 50 TEU talks about a withdrawal agreement in the singular. The question is then whether a separate agreement on citizens’ right under Article 50 is possible.  I will argue that the use of the singular in relation to ‘agreement’ does not exclude legally that the withdrawal could be composed of several agreements, as long as the objectives and spirit of Article 50 TEU are respected. Continue reading

The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive

Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

In her letter to Donald Tusk the Prime Minister outlined the UK’s starting position in negotiations with the EU. The EU Council of Ministers responded by producing draft negotiating guidelines (to be confirmed by the European Council at the end of April). These guidelines create the framework within which negotiations on withdrawal, and those on the future relationship between the UK and the EU, will occur. Meanwhile, a White Paper on the Great Repeal Bill was presented to Parliament, promising on the one hand to repeal the European Communities Act (ECA) and end the supremacy of EU law in the UK, and on the other to convert the acquis communautaire into UK law, so that ‘EU-derived rights’ (as we will need to get used to calling them) will, as far as possible, be unaffected.

The opening exchanges between the UK and EU have generated a lot of comment. Much of it has focused on the unlikely subject of Gibraltar (Michael Howard’s crass evocation of the Falklands conflict will have done nothing to lower simmering tensions). In relation to the White Paper, most attention has been devoted to the role of Parliament and the devolved assemblies. Rather less attention has been paid to many of the EU law aspects. In this short note, I focus on those. I first consider what new light has been shed on the way in which the Article 50 negotiations will proceed, drawing attention to the host of issues which remain unanswered. I then consider the EU law questions raised by the repeal of the ECA, and the conversion of the acquis into UK law. Michael Ford has already commented on this blog on the applicability of judgments of the European Court of Justice in the post-Brexit era; so there is no more on that subject here.

My overarching concern is that the Government, in particular in the White Paper, has failed to provide a clear sense of the size of the task which lies ahead. It is impossible to know whether this is because the Government itself does not appreciate the magnitude of the challenge, or because it is trying to conceal the difficulties. The Government has, for months, struggled to articulate just what Brexit might mean, and has made a series of disparate promises which a range of different constituencies have, if so minded, been able to rely on, or cling to. It will now start making hard choices. It has not prepared the ground well.

Theresa May’s letter set a conciliatory tone, using much more constructive rhetoric than hitherto. She emphasised her desire to build a ‘new deep and special partnership’ with the EU. She expressed the belief that ‘it is necessary to agree the terms of our future relationship alongside those of our withdrawal from the EU’. And she made it clear that the ‘no deal’ scenario is ‘not the outcome which either side should seek’. This is not the tone avid Brexiteers had been expecting.

The EU responded with a draft of the negotiating guidelines which are to ‘define the framework for negotiations under Article 50’ (though note that the European Council, a little ominously, reserves to itself the power to ‘update these guidelines in the course of the negotiations as necessary’). Article 50 does not afford a role to the withdrawing state in the drafting or scope of these guidelines; like them or not, the UK will have to abide by them. The Council repeated ‘its wish to have the UK as a close partner in the future’. But it is immediately clear that the relationship will be very different to the one we have all become used to. In the very first paragraph of the draft guidelines there are references to ‘the integrity of the Single Market’ and to the fact that there ‘can be no “cherry picking”’, and a clear statement that a non-member of the Union ‘cannot have the same rights and enjoy the same benefits as a member’. The guidelines go on to say that withdrawal negotiations ‘will be conducted as a single package’; ‘individual items cannot be settled separately’; and ‘there will be no separate negotiations between individual Member States and the United Kingdom’ on matters pertaining to its withdrawal.

The disagreement relating to the sequencing of the negotiations will be one to watch over the coming weeks and months. Article 50 provides some guidance here, with paragraph 2 providing that the withdrawal agreement with, in this instance, the UK, shall be negotiated and concluded ‘taking account of the framework of its future relationship with the Union’. On the basis of this wording, I have argued that the European Council should have agreed to commit to negotiations with the UK in relation not only about a narrow withdrawal agreement, but also about a broader agreement on the future relationship between the UK and the EU (so that the substantive reality of Brexit is known by the end of the two year negotiating period). The EU has, however, opted for a phased approach to the negotiations, seeking first to ensure that there is an orderly withdrawal. In the light of the wording of Article 50, perhaps reluctantly it has conceded that ‘an overall understanding on the framework for the future relationship could be identified during a second phase of the negotiations’, adding that the EU and its Member States ‘stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as sufficient progress has been made in the first phase’ (see para.4). In this instance it appears as though the UK has the law on its side; but there is little it can do to force the EU to broaden the scope of the negotiations before it is ready to do so. Continue reading

The week that was

In between the celebrations for 60th Anniversary of the Treaty of Rome and April Fool’s day, Day 1 of Britain’s exit from the EU began. On March 29th Sir Tim Barrow was despatched with a 6-page letter from Downing Street , which was ceremoniously handed over in front of the worlds cameras as he shook hands with European Council President Donald Tusk. The picture inevitably made front page news but in contrast to the media, markets failed to react either positively or negatively making Day 1 strangely anti-climactic – in effect more of a whimper rather than a bang. Nonetheless, the countdown has begun.

Day 2 brought a swift EU response in the form of Brexit Negotiating Guidelines. Despite expressing the deep regret that Brexit will now happen by March 29th  2019, the EU repeated its resolve to act as one. It set out core principles which also made clear that Britain’s desire for a UK-EU relationship of bits and pieces was delusional. Two phases for negotiation are set out: Phase 1 will focus on ‘disentanglement’, including consideration of the so-called ‘Divorce Bill’; Phase 2 will only begin when according to the European Council ‘sufficient progress’ has been made on Phase 1. Phase 2 of negotiations will include discussions only on the ‘overall understanding on the framework’ for the future relationship.  In another blow to Government plans, the Guidelines state that agreement on a future relationship can only be concluded when the UK becomes a ‘third country’ – work towards a free trade agreement can only begin once the UK is no longer a Member State of the EU. An LSE-Briefing Paper by Damian  Chalmers gives a clear overview of the challenges facing the Government negotiators.

Transitional arrangements can be considered, but it is unclear in which phase. What is clear is that during any transitional phase prolonging the EU acquis all Union regulatory, budgetary, supervisory and enforcement instruments and structures will continue to apply. However, transitional arrangements cannot provide a shelter for trade talks – as explained above, if this means that the UK remains a Member State, movement towards a free trade agreement with EU will be stalled. A transition period may therefore prove a hurdle to the conclusion of a free trade agreement or any future partnership in areas such as security and defence, terrorism, international crime. Transition is not the only hurdle – the EU has linked the application of any agreement between the UK and the EU in Gibraltar to a prior agreement between the UK and Spain. It is clear what lies behind this: 96% of residents on the Rock voted to remain in the EU. Nicola Sturgeon must be green with envy – the SNP would no doubt also welcome such protection.

The EU is also clear that the future partnership must include enforcement and dispute settlement mechanisms that do not affect the Unions autonomy – there can be no doubt since Opinion 2/13 on EU accession to the ECHR how jealously the CJEU will also guard its own powers. Thus it is hard to see how the UK can square this with its statement in the White Paper, published on Day 3, that the jurisdiction of the CJEU in the UK will end when we leave the EU. Unless, of course, it plans to leave the EU without any agreement.

Day 3 saw the publication a White Paper on Legislating for the UK’s Withdrawal from the EU. The centrepiece of this is a ‘Great Repeal Bill’, setting out the government’s vision of legislating for withdrawal from the EU. The plan for the Great Repeal Bill is to provide for ‘minor changes’ – it will repeal the ECA 1972 and incorporate wholesale the EU acquis communitaire (the Treaties but not the Charter, EU Regulations and Directives including implementing and delegated Regulations and Directives, and all CJEU case law) into UK law, convert EU Regulations into domestic law (these will be known as EU-derived law) and finally create limited discretionary powers for creation of secondary legislation. This secondary legislation will enable necessary ‘corrections’ to laws that would not function properly outside of the EU. In order to have the power to make these corrections, the Bill proposes the introduction of a so-called ‘Henry VIII clause,’ although this may cause significant problems according to Lord Neuberger.

It is questionable whether all this amounts to a ‘minor change’. It seems that the ‘Great Repeal Bill’ will create more in UK law than it repeals. By March 2019, and for an undefined period of time there will be two sets of laws: UK law and ‘EU-derived law’ both of which will remain relevant until repealed. Repeal, conversion, and correction to fill gaps in EU derived laws will be an ongoing process. While the use of Henry VIII powers is defended as necessary to provide legal certainty, the Bill envisages that there will be flux and constant change. Thus the law may change more than once during the process as negotiations continue.

The CJEU is specifically mentioned: while according to the Bill the jurisdiction of the CJEU in the UK will end, its case law will live on in EU-derived law: the White paper states that

‘as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means…To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts be reference to the CJEU’s case law as it exists on the day we leave the EU…the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decision of our own Supreme Court’ (Paras 2.14 & 2.16)

EU law decided until March 29 2019 will therefore continue to influence law in the UK. Continue reading

Brexit Round-Up

From the News:

A week on from the rendition of Ode to Joy by SNP Parliamentarians in Westminster in response to the Brexit White Paper, the Speaker of the House, Mr John Bercow, finds himself in hot water for exercising his own freedom of speech.

Calls for his resignation have drowned out the perhaps more significant news that as far as the EU is concerned, the UK will not be able to negotiate its exit and future relationship with the EU concurrently and while the latter proceed, the UK will remain under the jurisdiction of the CJEU.

The Supreme Court finally responds to the media attacks on the judiciary during the Miller case: Lord Neuberger said in an interview on BBC Radio 4 that politicians were too slow to defend judges after Brexit case, especially as the vitriol aimed at judges ‘undermined rule of law.’

The division of the Supreme Court in Miller was perhaps not as surprising as its unanimity on the devolution questions. Eutopialaw’s own Aidan O’Neill considers the potentially disastrous consequences of this aspect of the decision for the UK in an article here.

While Article 50 has not yet been triggered, a report from the CIPD and The Adecco Group finds that labour and skills shortages are already appearing in sectors of the UK economy that employ a high number of EU nationals.

Trade integration continues under the shadow of Brexit: a day after MEPs approve CETA (Comprehensive Economic and Trade Agreement), Justine Trudeau tells the European Parliament that the whole world benefits from a strong EU.

Meanwhile back in the UK all eyes are focused on February 23, the day of by-elections in Stoke-on-Trent and Copeland – where the electorate voted by majorities of 70 % and 62% respectively to leave the EU.

All eyes will then turn to France, where Marine Le Pen has been given high odds of winning the French presidential election. Her father however has lost his case in Luxembourg against the European Parliament, which has taken action to recover monies paid to him and his parliamentary assistants.

Finally, BBC Radio 4 launches its series ‘Brexit – A Guide for the Perplexed’ on February 17th – will the Government tune in?

Recent Case Law from the CJEU:

Opinion of the Advocate General C-74/16 Congregación de Escuelas Pías Provincia Betania

State aid: In the view of Advocate General Kokott, tax exemptions for Church-run schools do not, as a rule, breach the prohibition on State aid

Judgment of the Court of Justice C-219/15 Schmitt

Approximation of laws: The Court of Justice delivers its judgment in the case involving breast implants made of inferior quality industrial silicone

Judgment of the Court of Justice C-560/14 M v Minster for Justice and Equality

Claims for Subsidiary Protectionan applicant for subsidiary protection does not have the right to an interview but an interview must be arranged where specific circumstances render it necessary in order to examine the application with full knowledge of the facts.

Opinión C-3/15 Avis au titre de l’article 218, paragraphe 11, TFUE

Law governing the institutions: the EU, acting on its own, may conclude the Marrakesh Treaty on access to published works for persons who are visually impaired

Judgment of the Court of Justice C-562/15 Carrefour Hypermarchés SAS v ITM Alimentaire International SASU

Comparative advertising based on prices as between shops having different formats and sizes is unlawful in certain circumstances

Opinion of the Advocate General C-638/16 X and X

DFON: According to Advocate General Mengozzi, Members States must issue a visa on humanitarian grounds where substantial grounds have been shown for believing that a refusal would place persons seeking international protection at risk of torture or inhuman or degrading treatment

Judgment of the General Court T-646/13 Minority SafePack – one million signatures for diversity in Europe v Commission

Citizenship of the Union: The General Court annuls the Commission decision refusing registration of the proposed European citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’

Law and Politics in the Supreme Court

Phil Syrpis, University of Bristol Law Schoolsyrpis

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill, authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit. It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion.

Continue reading

Miller Judgment breaches UKSC duties under EU law in disservice of UK Parliament

ASG smallDr Albert Sanchez-Graells

The UK Supreme Court (UKSC) has today handed down its Judgment. It has done so in a way that both infringes its duties under EU law and does a disservice to the UK Parliament.

Breach of UKSC’s duties under EU law

One of the difficult legal issues on which the Brexit litigation hinged concerned the interpretation of Art 50 TEU and, in particular, the revocability of a notice given under Art 50(2) TEU. The interpretation of this point of law falls within the exclusive competence of the European Court of Justice (ECJ) under Art 263 TFEU. Interestingly, the UKSC stressed this monopoly of interpretation as a key element of EU law at para [64]. However, the UKSC has violated the ECJ’s monopoly of interpretation of the EU Treaties by accepting the parties’ commonly agreed position on the irrevocability of an Art 50(2) TEU notice at [26] of the Miller Judgment.

In doing so, the UKSC has infringed its obligation under Art 267(3) TFEU to engage in a preliminary reference to the ECJ concerning the interpretation of Art 50 TEU (for legal background see here and here). This cannot be saved by an argument that, under domestic procedural rules (or conventions), the UKSC had the possibility of taking this approach–and effectively dodging one of the most complex and unpredictable legal issues on which the litigation rested.

There are several reasons for this, but the primary one is that, as matter of EU law, a preliminary reference by the highest court of an EU Member State is unavoidable where the interpretation of EU law is necessary to enable it to give judgement–or, in other words, where the judgment relies on a given interpretation of EU law. In my view, it is beyond doubt that the UKSC Miller Judgment is based on the interpretation that an Art 50(2) TEU notice is irrevocable, and that this represents the legally binding view of the majority judgment, regardless of the attempt to save the UKSC’s view on this point in para [26] — or, in other words, it is not (logically, legally) true that the UKSC’s Miller Judgment operates ‘without expressing any view of our own on either point‘ (ie regarding the revocability or not of the Art 50(2) TEU notice). There are explicit indications of this interpretation in paras [59], [81] and [92] (see here for more detailed analysis of the latter).

In view of the relevance of the points of irrevocability of the Art 50(2) TEU notice, it is clear to me that the UKSC had an obligation to seek the interpretation of this provision by the ECJ and that, in not doing so, it has breached EU law. Moreover, beyond what some may consider a highly technical or academic point, by not seeking this clarification the UKSC has also done a disservice to the UK Parliament. Continue reading

Miller – A Decision in Defence of the UK Constitution

Prof Iyiola SolankeBlogPhoto

The UKSC has spoken. And as many had expected (perhaps in their more sanguine moments even the Government legal team) it has upheld the decision of the High Court that legislation is required prior to the triggering of Article 50 TEU. The judgement should become compulsory reading in Constitutional Law, especially because it sets out clearly the separation of powers between the government and parliament, in particular the law making powers of each and most significantly the reach of those laws made using institution specific law-making powers.

The UKSC remind that the basis of the prerogative power asserted by the government is in the principle of dualism – that international law and domestic law operate in independent spheres [55]. Thus although treaties signed under international  law are binding on the UK in international law, such treaties are not part of UK law and give rise to no legal rights or obligations in domestic law. Therefore just as treaties made by Ministers are not governed by domestic law, domestic law made to give national effect to those treaties cannot be governed by Ministers. As put in JH Rayner by Lord Oliver of Aylmerton:

“As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation…” [56].

Hence, as put by the UKSC ‘…the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers’ [57]. In coming to this conclusion the UKSC should be seen not as ‘enemies of the people’ but on the contrary their friends: by protecting parliament, they also protect the people, ensuring that governments do not undermine the citizenry by imposing decisions upon them which have not been put before them or their representatives (ie Parliament). This may be of especial resonance to the 28% who did not use their vote in the EU referendum.

The ECA 1972, passed by Parliament to incorporate the Treaty of Rome into domestic law, is uncontroversially described as more than an ordinary statute. This assertion of the constitutional character of the 1972 Act is not new – it was set out in Thoburn and R (Buckinghamshire County Council) v Secretary of State for Transport. Importantly, the Court highlights the crucial distinction in relation to its dual impact – first it provided that ‘rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law’ and secondly created a ‘new constitutional process for making law in the United Kingdom.’ The former is described as ‘exclusively a question of EU law’; the latter ‘exclusively a question of domestic law’ [62].

From here it requires only reiteration of traditional reasoning to conclude that oversight over the domestic constitutional process remains with Parliament not government. As such, Parliament can legislate to alter the domestic constitutional process, the status of EU institutions or even the status EU law. This is not constrained by the primacy of EU law, or any rule of EU law because this is a question of the domestic constitution for Parliament. Parliamentary sovereignty is in 2017 as it was in 1972 and ‘…EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament’ [67].

Thus just as Parliament decided in the 20th century when the Treaty of Rome should have domestic impact, it is for Parliament to decide in the 21st century when that ceases to apply; then as now this remains a question for Parliament, not the Government. The Court rejects the argument asserting that the 1972 Act foresees use of prerogative powers – without prior Parliamentary authorisation – to break the constitutional legal tie made by Parliament between EU law and the UK. On the contrary, it concludes that,

“… by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.”

Given the long-standing principle of parliamentary sovereignty, one may again wonder why the EU referendum was necessary. The judgment can be read as adding weight to assertions that the EU referendum was a response to party political and not national interests.

To refer or not to refer, that is the question…

BlogPhotoDr Iyiola Solanke

A journey is a good time to gather thoughts and reflect. Having nothing to do but sit and watch the fields go by offers an opportunity for quiet reflection and deliberation. Such stillness should not be expected by the judges of the Supreme Court as they journey through the British constitution in the coming weeks – the headlines of the weekend papers make clear that their deliberations on the Miller case will not be set within a context of calm.

This is to be regretted, for the questions facing the Supreme Court are of a magnitude that cannot be overstated. They are of long term importance not only for the relationship between the UK and the EU but also internally, for democracy the UK. As important as the decision reached by the Court – whether the government must consult Parliament before art 50 is triggered – is the procedure by which that decision is reached, namely whether the Supreme Court uses Art 267 TFEU to refer a question of interpretation to the CJEU in Luxembourg.

Art 267 TFEU

Article 267 TFEU sets out the procedure whereby national judges can send questions[1] to the CJEU for interpretation of the Treaty and adopted secondary law, and the validity of the latter. The questions sent can concern technical matters such as the classification of pyjamas[2] or constitutional issues dealing with EU citizenship[3] or the validity of the European Stability Mechanism.[4]

Art 267 TFEU states that:

 (1) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty b) the validity and interpretation of acts of the Institutions (2) Where such a question is raised before a court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. (3) Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law that court or tribunal shall bring the matter before the Court of Justice.

There is no time limit associated with the procedure: the question(s) can be sent as soon as need becomes apparent to national court/ tribunal.[5] However, this is not an appellate procedure: questions must relate to a pending dispute and be sent before a decision has been made.[6] There is no limit to the number of questions that may be in a reference,[7] or the number of references that a court can make prior to its decision, as long as these are new questions or might produce a different answer.[8] The CJ may also add to the questions sent.[9]

There is no definition in the Treaty of a ‘court or tribunal’. The guidance laid out in El Yassini[10] stressed a number of factors, such as whether the ‘body is established by law, whether it is permanent, whether its jurisdiction is compulsory,[11] whether its procedure is inter partes, whether it applies rules of law and whether it is independent.’ However, even if a body satisfies all of these characteristics, it will not be seen as a court or tribunal unless it is required to determine a legal dispute or exercise a judicial function[12] and falls within the remit of a member state.[13]

Given its status as the Supreme Court, a question on Article 50 sent under Article 267 is unlikely to be rejected. However, given the political consequences of the question, it may not be warmly welcomed by the CJEU. Yet this would be the legally correct course of action under EU law – this is the very first time that Article 50 has been considered in any national court in the EU, and there are important questions surrounding its interpretation, in particular whether it is revocable. This issue is especially important as in Miller, the irrevocability of Article 50 played a central role in the case before the High Court: there it was held that an irrevocable Article 50 makes the need for Parliamentary involvement in its triggering crucial. However, if Article 50 is revocable, this may lead to a different conclusion. The question on revocability is thus a question of the interpretation of EU law that should be put to the CJEU under Article 267. As it is a provision of EU law, only the CJEU may interpret it.

Division of Labour

Article 267 sets out a clear division of labour: the national court determines the questions that its needs answered, the CJEU answer those questions on EU law; the national court applies this interpretation to the facts before it. The CJEU may determine admissibility but the process is driven by the national courts – it is left to the discretion of the individual judge to decide whether or when a reference should be sent, what should be asked[14] and how the interpretation should be applied. The opportunity for the CJEU to tackle important questions such as the revocability of Article 50 can be compromised in the absence of referrals.

The Treaty states that courts of last instance must refer[15] yet some such courts refuse to comply.[16] A judge may ignore a request to refer,[17] agree[18] or refuse as in Mid Sussex Advice Bureau where Elias LJ believed that a referral asking whether a volunteer was a ‘worker’ who could access rights in the Disability Discrimination Act 1995[19] when read with the Framework Directive[20] would fail.[21] Alternatively a judge may decide not to refer because they can interpret the issue adequately themselves[22] or to avoid delay.[23]

Delay is inevitable – an average reference can take over one year to be addressed. Time is clearly of the essence in the Miller case so this is a practical reason for non-referral. As Miller does not concern a person in custody, the procedure préjudicielle d’urgence (PPU)[24] in Article 267(4) TFEU cannot be used. This is a shame because the PPU removes stages found in the ordinary procedure thus can reduce the time for a reference to as little as 2 months.[25] However, given the constitutional importance of the question – for both the UK and the EU – it is likely that the CJEU will deal with the question of revocability quickly. Continue reading

Voting on Brexit – an epilogue

Claus Offe

One of two core questions of political theory is, and has always been, the question of how best to make collectively-binding decisions, by whom they are to be made, and according to what kind of rules and procedures. (The other one, only briefly to be touched on in the present paper, is the question of how and by whom the policy decisions, once made, are to be implemented.) I take it that the quality of these modes of decision-making is not just something to be determined at the founding or “constitutional” moment of a political community by some pouvoir constituant. The question of whether our rules and procedures are still “good enough”, or whether they may need amendments and alterations, is rather an ongoing challenge in the background of any political process, certainly one that qualifies as “democratic”. Yet, how should we decide on how to decide? The difficulty of any conceivable answer to this question derives from its tricky recursive logic. This is because the answer, in order to be recognised as valid and binding, must itself be decided upon – but how and by whom? If we were able to deduce the “right” mode of decision-making from a robust theory of a divine order, as in an ideal-typical theocratic regime, the problem would go away. Conversely, if we had a “scientific” theory about whose decision-making competencies and methods would yield optimal policy results and unquestionably “rational” problem solutions (as was the claim of “scientific” state socialism), the problem of deciding how to decide would also evaporate and the “one best way” of running a country and its economy would reveal itself beyond any doubt. Given the obsolescence of either of these simplistic solutions, we need to face the fact that neither constitutional methods of arriving at decisions nor the resulting decisions themselves, i.e., policies, are capable of having any truth value which provides them with certainty and unquestionable validity. At best, political procedures can be consistent (or not) with widely shared normative premises of fairness and their policy outcomes can be regrettable – or not.

Instead of exploring answers that have been given by political theorists in the past here, I wish to illustrate the problem by drawing upon a case from contemporary history. This case is the Brexit referendum held in the UK on 23 June 2016 on whether the UK should leave the European Union or remain its Member State. Was it a wise decision to let the question of future UK-EU relations be settled by referendum?

Here is a summary of the events. A British anti-EU political party, the United Kingdom Independence Party (Ukip) had won a relative majority of 27.5 per cent of the vote in the 2014 general elections to the European Parliament and came out as the strongest party, with most of its electoral base won over from that of the Conservative Party. Anticipation of this threatening trend had already prompted the incumbent Conservative Prime Minister David Cameron to commit himself, in January 2013, to holding a referendum on the Brexit issue by the year 2017 in the event that he was re-elected in the national elections of May 2015. This promise was intended to serve the dual purpose of increasing British bargaining power in ongoing negotiations with its EU partners (who were seen as averse to further Ukip gains and the prospect of Brexit, and hence were ready to grant concessions to the British government) and to immunize the Conservative electoral base against further defections of the voters, as eurosceptic Conservative voters were now offered the option to vote “leave” without switching their vote to Ukip.

Both of these purposes were fully achieved. The turn to the plebiscitarian method of collective will-formation may also have been prompted by the perception of a rising tide of populist distrust directed at representative political élites in parties and parliaments and an attempt to appease such distrust by granting a direct voice to the supposedly more genuine, more authentic and non-corrupted will of “the people”. Having won the 2015 elections as a consequence and being bound by his referendum promise, Cameron initiated the EU Referendum Act, which was passed by the House of Commons in December 2015. When the referendum was eventually held on 23 June 2016, the result was 51.9 per cent “leave” vs. 48.9 per cent “remain”, with the citizenry sharply divided along class, age and region, yet not equally sharply along party lines. Given a turnout of 71.8 per cent of all eligible voters, this means that a minority of roughly 37.3 per cent of the electorate will have caused, in future retrospect (and in the event that it actually comes to that), Britain’s exit from the EU by a margin of just those three percentage points putting the “leave” winners ahead of the “remain” losers. The day after the referendum, Philip Stephens, chief political commentator of the Financial Times (24 June 2016) commented in undisguised horror: “Who would have thought pragmatic, moderate, incrementalist Britain would tear down the political temple? This week’s referendum result was a revolt against the status quo with consequences, national and international, as profound as anything seen in postwar Europe.”

When making their decision on referendum day, citizens were largely left with their own individual means of will formation and without any clear guidance from the political parties as to which of the two alternatives to opt for. The two major parties were either openly divided (Conservatives) or deeply ambivalent (Labour) about the right answer, and the only party that was clear and committed on the issue (Ukip) had no chance of achieving the parliamentary representation necessary, according to British electoral law, to follow its option through. Similarly divided were the media, with some of the tabloid press engaging in a competitive denunciation of the EU, often without much regard for the truthfulness of their anti-EU claims. Moreover, both camps were united in their reliance on fear as a negative motivation – be it the fear of losing control over the fates of “our” country to “Brussels” (or of having to compete with foreign migrant labour for jobs) on the part of leavers, or be it the fear of adverse economic consequences of a “Brexit” on the part of the remain camp where strong appeals to the advantages, attractions and promises of staying were rarely advanced, implying that there were hardly any. Being left in a state of disorientation and anxieties, and being informed by the media and polling organisations that the contest would be a tight one, voters had no choice but to voice their gut feelings and resentments, rather than their informed judgement on the merits of the two alternatives (and, least of all, the numerous compromise solutions that the binary Yes/No frame of any referendum induced them to entirely ignore).

How and why the decision to let the relative majority of those participating in the referendum decide on a most complex and highly consequential national issue can be justified as the “right” procedural decision – rather than as the (eventually failed) opportunistic calculus of a leading politician to maintain his power? In other words: What is this outcome’s source of validity and normative bindingness? Given its vast and highly uncertain short-term as well as long-term repercussions of the largely unanticipated outcome, some four million voters signed a petition on the days after the referendum, which called for the holding of a second referendum, thus indicating a widespread sense of regret, as well as alarm, over the outcome. Yet such repetition would supposedly have required another Referendum Act as its legal premise. Moreover, it would have opened the somewhat horrifying perspective of an endless chain of further referenda on the outcomes of referenda: If the first is seen as ill-considered and in need of self-correction, why should the second fare better?

Also, the procedural design of the Referendum Act failed to make use of the several safety valves that are often applied in referenda in order to strengthen the bindingness of the outcome, its chance of being durably and universally recognised as valid. For one thing, a quorum, or minimum required turnout of voters, could have been stipulated, such as a 75 per cent requirement. For the other, a super majority requirement could have been applied, such as a 60 per cent threshold that must be passed by either of possible outcomes; through the adoption of this mechanism, the objection could have been pre-empted, to an extent, that the result is, by and large, spurious, accidental and unworthy of being respected as binding.

Applying these two requirements could have been justified by reference to the fact that a referendum is a one-shot decision, and a highly consequential one at that, in the event that it is translated into actual policy. It causes consequences which are certain to make themselves felt in the long term future. In contrast, the “normal” democratic procedure of holding contested elections is defined by its periodicity, meaning that governing authority is granted pro tempore and that losers of an election will have another chance in four or five years’ time, with both competing parties and members of the general public being given a learning opportunity to revise platforms and preferences during the interval. If after an election, policies are considered to have gone “wrong”, there is at least someone to blame (and punish!) on next election day, whereas the voting public can only blame itself (i.e., nobody in particular, as the vote is secret and nobody can be held accountable) in the event that the results of a referendum turn out to be seen as regrettable. Under a pure referendum regime, citizens would thus be deprived of learning opportunities and the challenge of forming and revising considered judgement. Issue-specific referenda, such as they are advocated, for instance, for issues of land use and conflicts over the territorial (re-) organisation of political communities, may be argued for in terms of their “once-and-forever” temporal structure and substantive irreversability: “an airport means an airport”, and for a long time to come. Because of the “sunk costs” invested already, there is no point in repeating a collective decision in five years’ time to find out whether we still want it. The same applies to constitutional referenda. These are, however, typically designed not to preclude the space for future socio-economic and political contestation (as is the case with the losers in all substantive referenda), but, to the contrary, to guarantee the permanent availability of such space – a guarantee that is implemented, for instance, through a bill of rights, the division of powers, and the stipulation of constitutionally-specified procedures and competencies of interpreting, amending and changing the constitution.

A third provision that was, in fact, made use of in the Brexit referendum is the procedural stipulation that the government is not strictly bound to implement the result, but can treat it as merely advisory. As sovereignty resides in Parliament, it is this representative body that must decide as to whether or not to endorse and subsequently implement the referendum decision. For the only thing that even the most sovereign body cannot do is to abdicate its own law-making powers and transfer it to another body, such as the multitude of citizens voting in a referendum. It follows that a Prime Minister cannot promise voters that he or she will follow their expressed preferences as though they constituted an act of legislation. In the absence of a parliamentary endorsement and ratification of the (presumed) popular will as expressed in a referendum, the latter remains entirely inconsequential. For example, the invocation of Article 50 TEU (the article that prescribes the first step of the procedures of actually exiting from the Union) must doubtlessly be an act of Parliament.

To be sure, such parliamentary endorsement of the referendum decision might well be the result of principled argument and proper deliberation, weighing the merits of the “advice” that the voting public has offered against alternative policies. Yet, the sovereignty of the Parliament of having the last and decisive word has been rendered entirely nominal by the referendum itself and the legislature’s previous decision to hold it. By adopting the EU Referendum Act, thereby seemingly passing its legislative responsibilities to the “people”, the Parliament has virtually destroyed its chance of being credited with the capacity for deriving policy from informed, considered and balanced argument. It has eschewed its responsibility to do so. After having unleashed the plebiscitarian forces voicing fear of foreign control and foreign migrants, neither parties nor members of Parliament could henceforth afford to adopt and advocate any solutions to future UK-EU relations that could be denounced as defying the referendum’s “advice”. After all, politicians cannot be expected to commit electoral suicide by refusing to follow the “will of the people”, the expression of which they had allowed for as part of a power game. As a consequence, the force of the referendum majority, however slim the margin, made the committed “remainer” PM David Cameron disappear from the political scene of U.K. national politics in a matter of a few weeks, while the most prominent “leave” protagonist, Boris Johnson, moved up to the position of Britain’s Foreign Secretary. The new PM’s signature tautology (“Brexit means Brexit”) ratifies the de facto unconditional surrender of representative to plebiscitarian will formation. In the eyes of many on the “remain” side, the evidence of this force is likely to breed cynical views about politicians being steered by their populist readiness to adjust to arguably short-sighted mass resentment. As constitutional scholars Richard Gordon and Rowena Maffat have stated with unfathomable juridical wisdom:

“In practice, the […] referendum outcome will bind the government. In theory it is advisory but in reality its result will be decisive for what happens next.”

Let us now assume the (not entirely unlikely, but this is not my point here) case that “what happens next” in “reality” is a chain of events that frustrates the hopes and expectations that have been entertained by the majority and thus lets the initial and (practically irreversible) Brexit decision appear as, in retrospect, as misguided and regrettable. The immediate consequence of such frustration will be accusations directed at “them”, i.e., élites who have deceived “us”, the citizens, through false promises, and at the media that have misinformed us through their mendacious propaganda that has led the majority to decide the way it did. The sense of regret may lead us to the fruitless wish: If only we had made a different decision! But this frustration may also lead us to conclude that not just the decision but the very mode of making collective (and highly consequential for “all of us”) decisions has itself been ill-advised. How can a Prime Minister be allowed to adopt a risky tactic of maintaining his power position (over the country, his party, and within the EU) and make everyone else pay for the costs of what turns out to have been a frivolous miscalculation? If the chosen procedure of decision-making comes to be seen as a lesson of what not to do, such conclusion may rightly trigger the “constitutionalist” search for alternative procedures of decision-making that can possibly protect us from the regrets and complaints that we feel when facing the consequences of decisions that we have made under that procedure. The question becomes: Are there better and smarter, i.e., more reliable “ modes of making highly salient decisions – ways that are compatible, at the same time, with the basic tenets of democratic political theory, namely, equality of civil and political rights, freedom of opinion, and the division of state powers?


[1]     I have argued elsewhere that there are altogether three kinds of regrets – or retrospectively perceived and deplored deficiencies of previous judgment – that are to be avoided: deficient future-regardingness, deficient other-regardingness and deficient fact-regardingness. Taken together, they can serve as a standard of political rationality. Cf., Claus Offe, “Crisis and Innovation of Liberal Democracy: Can Deliberation Be Institutionalised?”, in: Claus Offe and Ulrich K. Preuss, Citizens in Europe: Essays on Democracy, Constitutionalism and European Integration, (Colchester: ECPR Press, 2016), pp. 73-98.


* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available here. The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.