Brexit: Would The Exit Bring Back Sovereignty To The UK?
For decades the European Union has been confident in the supremacy of its laws over those of the member states which tend to conflict with Union laws. Instead of being artificially impregnated with the belief that could have been a common perception owing to the initial resistance by member states, supremacy of Union laws has become a cornerstone of the European legal system. Dating from the iconic statements issued by the European Court of Justice, the concept of supremacy changed the dynamics of this regional bloc. Unknown to international order, the claim of supremacy by a body not anymore sovereign than the power that was issued to it on the mandate of the member states, and not having any more than six members at the time, came as a surprise. The European Court of Justice, which to date has not been enabled as the apex court of the multiple European legal systems, had assumed control of the Union during an otherwise dormant period of legislative activity. The basis of the doctrine could well be considered a transgression on part of the Court since it treads on the terrain of development of a legal principle instead of simply the application of it. With the infamous ‘new legal order of international law for the benefit of which states have limited their sovereign rights’ from Van Gend en Loos,[1] the Court of Justice threw a stone in the tranquil waters of the European Community which was only a decade old. Unamused by the attempt of the European Court, the member states bore testament to a ripple that was caused thereafter.
‘By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply. By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane, and more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves. The integration into laws of each member states of provisions which derive from the Community and more generally the terms and the spirit of the treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The law stemming from the Treaty, an independent source of law, could not because of its special and original nature be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights.’ [2]
This quintessential extract from the seminal judgment of Costa v ENEL[3] aptly sums the concept of supremacy, its basis, operation and undeniable strength. However, with the recent turn of events in Britain, the doctrine of supremacy seems to have been jeopardized without prior notice. It all started from January 2013 with a promise to hold a referendum to know the democratic voice of the Britons to be a part of the Union. On June 23, 2016 with a narrow majority, the British people showed their intention to disassociate themselves from the European Union. This led to chaos and much hullabaloo in the legal, economic and political circles. There was speculation as to whether this democratic voice would even be capable of unpinning the UK from a Union strongly embedded in the British legal system. The cry for a re-poll by the ‘Remain’ campaigners sought to trump Brexit but the momentum of the UK seemed to have been set in propelling a leave from the Union after all. On the 29th day of March, 2017, the much anticipated and controversial letter written by Theresa May, the British PM to the office of the European President, Donald Tusk appeared from the clouds of speculation.[4] The letter announced that the UK had voted to leave the Union. To cut the sourness of the announcement she went on to state on behalf of the British people that this was not a rejection of the European values but a move to secure the sovereignty of the UK. The letter being delivered through David Davis, Secretary of State for Exiting the Union, was a stark contravention of the statement quoted above from ENEL. The announcement of the exit was certainly surreal and could even have been regarded as immature owing to the categorical reference of the inability of a state to rely on a unilateral action. However, the 2007 insertion of Article 50 in the Treaty certainly provides for this divergence from the Court’s ruling.
The summation as provided by the Court back in 1964 laid the foundation of development of the formidable concept of supremacy which despite not being penned in the text of any treaty, holds great influence on the jurisprudential development within the EU. The Court’s opinion was initially a silent edifice and was later met with vehement opposition by the courts of the founding members.[5] The member state courts were the guardians of their constitutions,[6] hence inhospitable towards the assertion that a law from a body which had only recently been created for a certain mandate would reign supreme over national law where it was in conflict. The idea was that national constitutions had been fashioned over centuries and were refined products of democracy and civilisation thus they should reign supreme. The pace of the Court was however dangerous and reckless thus undermining national constitutions where need be.[7] The Court was acting less as a judicial platform but more like a fortune-teller capable of foreseeing that the small community of six states was to grow into a Union of 28. This array of countries would be in need of rules to keep them grounded and convergent on the idea of a common market. Thus it was essential to tread this reckless path to secure the future of Europe.
However, it may be remembered that this doctrine was not a dictation to the legislative organs and they were free to make a law as they desired. The accession of the UK to the European Union was marked by the European Communities Act 1972 that rose over time to a constitutional status. It was difficult to consider initially that there could be a law which could undermine the sovereignty of the Parliament. As a cornerstone of the British Constitution, Parliamentary sovereignty suggested that no Parliament could bind a future Parliament and none of the laws could be entrenched, thus reducing the 1972 Act to not have any peculiar attributes. However, this Act had an inherent sense of constitutionalism since it allowed for all laws of the Union to be directly imported into the UK’s system without the need for a positive act every time. Hence, the powers of the future Parliament had at least been fettered to create laws which were in contravention of Community laws. In the initial years, domestic courts were of the view that the intent of Parliament is to be given effect, which meant that domestic laws made subsequent to Community laws would be capable of changing the course of the application of Community laws.[8] Soon though the courts in the UK gave way to the indisputable application of Community law whether directly effective[9] or not.[10] Gradually the jurisprudential development within the UK presented an undeniable challenge to the existence of the concept of Parliamentary sovereignty,[11] so much so that David Davis in his foreword in the White Paper for Legislation to Exit the Union stated that the UK Parliament would unquestionably be sovereign again,[12] thus assuring that there was a time when the sovereignty of Parliament had been compromised.
Thus a law would have to be made which shall disengage the UK from the Union and dismantle the constitutional ECA 1972 after all these years. The problem is what the language, extent, approach and nature of the new legislative Act should be. The Great Repeal Bill as it has been lovingly nicknamed by those overjoyed to leave the Union is a mystery as yet and even when tabled in the Parliament, it shall not be an easy task to deliver within the limited timeframe of two years before April 2019, the date by which the exit will have to be formalised.
The statement in ENEL adequately showcases the reach and nature of Community laws. Over the years, European legislative activity has been undertaken at an accelerated pace as if to make up for lost time. Gradually, the Union has enveloped a wide range of competences leaving little behind for domestic parliaments to legislate on without running into European essentials. The Maastricht Treaty 1992 created a three-pillar structure whereby only issues relating to the common market were centrally controlled by the supranational Community whereas other issues such as police and criminal matters and matters related to foreign and security policies were under the intergovernmental mandate. This was replaced in the Lisbon Treaty by a single Union. The numerous laws created through Treaties, Regulations and Directives collectively have created a complex web of laws within the Union. The challenge for a country now deciding to sever its relation with the Union shall be to disengage in the years of legislative history embodying a blend of European and domestic policies. This becomes an especially daunting task for the UK since it is the first to issue the Article 50 notice to quit and does not have any precedent to follow or learn from. Whatever the UK does is going to be purely speculative and experimental.
In this regard, the work on the Great Repeal Bill has been initiated as indicated by May in her letter. The objectives of this Bill through the White Paper[13] quite clearly portray both a need and intent to sever ties with the Union while retaining a significant touch with European values. The White Paper as most recently having been tabled on May 02, 2017 just before the House of Commons has been dissolved for the forthcoming general elections, summarises the provisions of the proposed Bill. The foremost action shall be to reinstate the sovereignty of UK Parliament thus the 1972 Act which placed a fetter on the sovereignty of UK Parliament would have to be repealed.[14] The Act contained the automatic inclusion of all European laws into the domestic system without the need for a positive transposing Act every time. This would save time and cost and prevent the risk to harmonious application of Union laws throughout Europe. Thus it opened a gateway for multiple Union laws to trickle down into the UK legal system over a period of more than forty years. Repealing an Act might seem a simple parliamentary task but this time it will not be akin to replacing any other Act in the past. It is not the same as devolution of power to the Scottish and Northern Irish Parliaments either. The ECA shifted a part of sovereignty outside of the UK thus reclaiming it would not be easy. At the root of the ECA was an instruction to all future parliaments to make laws only in line with Union obligations till such time as the UK is part of the Union, and a dictation to UK courts to follow the rulings of the Court of Justice of the European Union. Wrapping up the widespread operation pursuant to this Act would open Pandora’s box as there would be confusion and gaps in the legal system. The order to repeal the ECA would never be enough to fill in the vacuum created.[15] Several smaller laws shall have to be created to fill in any gaps that are left and that shall be a tedious task.
Through the White Paper, the government promises to mobilise a conversion of EU law into UK law.[16] Thus all laws which have been EU-derived, through treaty articles, regulations or directives shall continue to enjoy a presence in the system till such time as there is a need to modify the laws. However, these laws shall cease to be European anymore and shall be domesticated. This change in the ownership of laws is what shall deem the Parliament sovereign once again. This seems preposterous since the laws would be handed down from the European system. Which sovereign tends to thrive in such ownership is beyond estimation.
The White Paper emphasises that it would be impossible to convert each and every regulation from the almost 12000 in force right now[17] in UK law, but the status quo shall be maintained for their enforceability. A twin problem shall arise with this. First, the regulations are issued by the EU which is indifferent to what domestic laws exist and there is no central screening done at the level of EU to highlight any potential inconsistencies with any domestic law. Once all the regulations shall be made part of UK law by the stroke of a pen, all previous laws which have a tangential connection with the content of the regulation shall stand repealed. Owing to the principle of supremacy of EC law, any such inconsistencies that were highlighted by the judges would set aside national law to allow EU law to be effective.[18] The task is now going to be more difficult since the judges would only consider the latest laws to be effective and with the lack of a flagging of inconsistency, it would be impossible for Parliament to change previous laws or amend the regulations.
Additionally, the interpretation of a regulation was the task of the CJEU and not the domestic court if there was ever any confusion with the rights embodied in it. At the behest of parties, the national court could send a reference to the European courts and require an interpretation of the same.[19] Following Brexit, British courts shall be forbidden to send a reference but shall have to provide an interpretation to the language of the regulation which shall be a tedious task.[20] The European judgments from before might be capable of providing guidance but on most occasions, each preliminary reference should be assessed on its own terms.[21] Since the European system does not follow binding precedent, UK courts are going to find themselves bemused on most occasions. Even if there is some limited guidance in European rulings, there might be a prevalent inconsistency in the judgments themselves which shall lead to a further complexity. The UK Supreme Court would not want to leave open-ended judgments to cause confusion and ambiguity in the law, but the Court of Justice of European Union does not affix a set definition to European laws since the needs of the European Union are wider than those of a state and the dynamic nature of the common market leaves the law in a constant state of flux. Thus, even treating the judgments of the CJEU as those of the Supreme Court would be supremely difficult. For example, the judgments in Zambrano[22] and Dereci[23] seem irreconcilable yet both stand when it comes to the operation of law. The latter does not repeal the effect of the former. Moreover, the judgments of the Supreme Court and its predecessor, the House of Lords have traditionally been fashioned to consist of leading and dissenting judgments with the erudite opinions of even the dissenting judges making a mark on the readers. The European judgments on the other hand are short and only contain a single collegiate judgment. While this is for reasons of anonymity and impartiality, the law student of the UK shall expect and demand more from a judgment which was to be considered domestic.
It is understandable that the competence of British judiciary shall by no means be underestimated, but it has been years since it took flight without the hovering shadow of the CJEU. The White Paper additionally provides that a change in law if desired shall be referred to the domestic Parliament.[24] The case weakens here since the British judiciary shall be handed down tools for arbitrariness in the form of contrasting and diverse judgments to choose from and a positive scope to exercise judicial discretion thereby not allowing Parliament to ever figure a need for reform.
While a direct instruction has been made to the British judges to take control of the laws and not follow specifically the judgments of the CJEU,[25] international commitments especially to the rest of the Union shall only be accomplished when judgments of the CJEU are honoured and followed. In the event that a new framework is engineered to continue relations with the common market, there shall be a strong, urgent and continuous need to follow European rulings. Without them, the application of the EU-derived law shall be haphazard. Thus, the sovereignty that is being claimed back possibly seems to be Parliamentary sovereignty only and does not fancy reclaiming sovereignty for other organs of the state.
The implication that this move aims to have on the concept of supremacy is to end it.[26] However, the Paper suggests that in a state of conflict between two pre-exit laws, EU-derived law shall take precedence over the one that is not.[27] In addition, following Brexit, the Parliament could change laws[28] (to date it has been impossible for the British Parliament to amend European laws) which only feeds in the concept of supremacy being alive and formidable. Post the exit, granting any supremacy to EU-derived laws might only be desirable for certainty and functionality but the question remains if Parliament would ever indulge in changing the laws, or after all these years of not exercising its absolute jurisdiction in legislating in certain competencies, the machinery of the Parliament shall have rusted. So when new laws shall be made by the EU, pre-existing laws shall need to be altered in order to give full effect which shall not be possible for the EU since laws by then shall have been completely domesticated. The UK Parliament shall probably not be left with a choice but to replicate European laws which regardless of benefit to the UK shall not be a manifestation of the sovereignty and complete independence of Parliament.
Moreover, what does it mean when the Paper refers to obligations towards the EU? The obligations right now are EU obligations but once UK-EU relation goes under the knife, the obligations would be non-existent. Any new obligations would require a new protocol and this makeshift Paper would do no good. Currently, the UK is enjoying perks of the common market. Tim Farron in his parliamentary speech on March 22, 2017 pointed out that population in 1975 voted to join the common market and not the Union yet they got to join to Union as a necessary correlative of the market.[29] In the current referendum, voters were asked to leave or remain in the European Union and the fate of the relationship of the common market and UK was not on the table.[30] Hence, those who understand that the two come hand in hand may be the ones whose vote and numbers do not matter anymore especially since the trigger has been set. Those who were hoping to do away with the Union yet retain a foot in the market were sadly mistaken. The agreement would not be anything but a compromise on the economic activity of the UK.
Being the first country to exercise the right to exit the Union, UK has earned the status of an apostate and even a traitor to the Union. The hostility that is to ensue in the forthcoming months shall only escalate. The UK might have made a blueprint of its terms to exit the Union but has the Union shown any accommodation towards the UK’s sovereign dream? If the approaching two-year period of drafting a new protocol for the UK is to be fruitful, the only party to get in a compromising position seems to be the UK.[31] The Union for one, over the years, has only grown and thus made adequate arrangements to deal only with enlargement. The latest Lisbon Treaty and its consequential supranational setup of the Union is a tactic to keep the states together at all times as well. The Union might have added Article 50 to the Treaty but certainly no further homework has been done. The reduction from 28 to 27 states shall leave distaste with the Union’s leadership. If the Union is to save itself and still expect to reign supreme over its member states, the impossibility of a state to undertake unilateral measures as stated in ENEL would have to be exercised. The Union would by no means wish to encourage behaviour such as that of the UK with any of the other member states, since if that happens, the Union might only be left with debt-ridden, developing and struggling economies of Eastern Europe. The Union shall have to salvage what is left of it following this Brexit disaster and hence shall be constrained to reprimand British leadership. This would however also cost the Union since the alliance with UK was essential to establish cordial relations with the USA and many other countries of the world. By losing its affiliation with UK, the EU shall be weakened in the international arena. For instance, the UK is a permanent member of the Security Council without which the EU shall only have France to depend on to ward off Russia which tends to have a close eye on the energy artery of the Union.
Regardless, the White Paper on leaving the Union is nothing but utopian as of now. The aspiration of being able to achieve all that has been promised in the Paper is far-fetched and unreal, as practical hurdles shall inundate the discourse of the process to unfasten ties with the Union. As much admiration as there may be for the common market, the aim of reclaiming parliamentary sovereignty shall leave the rest of the country exposed to dictation from the Union. The terms of the exit when finalised shall surely leave the Parliament secure behind the walls of the Westminster fortress while the country shall grapple with the rubble of a legal system that shall be left behind which would neither be British nor European but a hybrid which is going to be impossible to adjust to.
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References:
[1] Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECLI:EU:C:1963:1
[2] Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECLI:EU:C:1964:66 at [3]
[3] Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECLI:EU:C:1964:66
[4] Accessed through http://www.telegraph.co.uk/news/2017/03/29/article-50-brexit-letter-read-full/ on May 26th 2017
[5]Case 11/70 International Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel ECLI: EU:C:1970:114
[6]Case 11/70 International Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel ECLI: EU:C:1970:114; Honeywell, BVerfG, 2 BvR 2661/06, 6 Jul 2010; Frontini v Ministero delle Finanze [1974] 2 CMLR 372
[7] Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629
[8] McCarthys v Smith [1979] 3 All ER 325
[9] Duke v GEC Reliance Ltd. [1988] AC 618; Garland v British Rail [1983] 2 AC 751
[10] Lister v Forth Dry Dock Co. Ltd. [1990] 1 AC 546; Pickstone v Freemans [1989] AC 66
[11] Thorburn v Sunderland City Council [2003] QB 151; R (HS2 Action Alliance Ltd.) v Secretary of State for Transport [2014] UKSC 3
[12] Department for Exiting the European Union, ‘Legislating for the United Kingdom’s withdrawal from the European Union’, [2017] pg.7
[13] ibid
[14] ibid at 1.24 pg.12
[15] ibid at 1.13 and 1.14
[16] ibid at 1.24(b)
[17] ibid at 2.6
[18] C-213/89 R v Secretary of State for Transport, ex parts Factortame Ltd. and Others [1990] ECR I-2433; Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629; Thoburn v Sunderland City Council [2003] QB 151
[19] Art 267 TFEU
[20] It is only open to the courts and tribunals of Member States of the Union to send a preliminary reference to the CJEU.
[21] Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415
[22] Case C-34/09 Zambrano v ONEM [2011] ECR I-1177
[23] Case C-256/11 Dereci [2011] ECR I-11315
[24] Legislating for the United Kingdom’s withdrawal from the European Union, at 2.20
[25] ibid at 2.13
[26] ibid at 2.19
[27] ibid at 2.20
[28] ibid
[29] Tim Farron on Terms of Withdrawal from the European Union (Referendum) on 22 March 2017 accessed through https://hansard.parliament.uk/Commons/2017-03-22/debates/E96EA058-78F1-4295-B1E5-06969BB9FB8D/TermsOfWithdrawalFromTheEuropeanUnion(Referendum)?highlight=tim%20farron#contribution-5FF7B784-8E9D-4A68-BDA9-B8F76E0217FD on 26th May 2017
[30] ibid
[31] Michael Gordon, ‘Brexit: a challenge for the UK constitution, of the UK constitution?’ [2016] European Constitutional Law Review 12(3), 409 – 444, at pg. 410
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