Tag Archives: law

Brexit: A curious case of mistaken identity?

by Kenneth Wallace-Mueller, Member of the MEF Board

The United Kingdom is due to withdraw from the European Union in March 2019. But why? There are many possible explanations, however one common argument is that the UK voted to reclaim sovereignty from the EU.

Brexit is a complex and highly emotional issue, with wide ranging impacts for both the UK and the EU27, and presenting risks and opportunities for both. This article seeks neither to support nor oppose Brexit, but merely examines a different theory on the outcome of the referendum.

A question of sovereignty

Reclaiming sovereignty is, in principle, a justifiable argument. In its 45 years of membership of the EU, the UK has indeed sacrificed elements of its sovereignty to the EU. This includes the ability of the UK to freely create laws which bind its citizens. As a Member State, EU Directives and Regulations are regularly imposed on the UK Parliament, which in turn must enact certain laws within a set framework.

This is however a condition of membership of the EU as a supranational body. Every EU Member State has given up the same degree of sovereignty, which is arguably a necessary measure to allow the 28 Member States, acting together as the EU, to coordinate certain policies.

There are however two elements to consider in making this argument of sovereignty.

Firstly, the UK has a curious feature in its constitutional law: that of “parliamentary supremacy”.[i] This is an offshoot of the democratic principle, where the Parliament acts as the elected voice of the people. As this voice may change over time with each successive election, parliamentary supremacy dictates that no UK Parliament can be bound by any previous Parliament, and consequently no Parliament can bind a future Parliament. Indeed, any UK law can be amended or repealed with a simple majority.

This concept is one reason why the UK has no written constitution. In comparison, following National Socialist rule in Germany, certain democratic and liberal values have been entrenched so that they are impossible to remove from the constitution by any future parliament. These are called “Ewigkeitsklausel” or eternity clauses, and would require a revolution and new constitution to repeal.[ii] From the perspective of UK parliamentary supremacy however, this would argued as undemocratic, as the rights of the current electorate have been restricted.

EU membership however means that the UK Parliament has willingly bound itself to the supremacy of the EU, which in effect limits its power to freely enact certain laws.[iii] Despite being legally possible, and perhaps economically beneficial, this does not sit well with the principle of parliamentary supremacy.

The second point is that throughout its membership, the UK has secured very favourable conditions in comparison to other Member States. This includes a significant rebate from the EU budget, as well as exemption from both the Eurozone and Schengen. The UK therefore retains its own currency, monetary policy and border controls.[iv] Furthermore, as a country of approximately 66 million people, the UK is the third largest Member State (after Germany and France), and as such has greater representation in the European Parliament than the 25 other Member States.[v]

For these reasons, despite arguments commonly being made that Brussels wields power over the UK, the UK indeed has an equal, if not better than equal, role in the EU decision making process, which in turn binds all 28 Member States.

This argument of sovereignty is therefore – on a high level at least – not entirely satisfactory. There is however one alternative theory.

The Human Rights Act

In 2001, John Hirst, a British convicted killer, challenged the validity of a UK law which effectively banned prisoners from voting in parliamentary elections.[vi] The High Court however dismissed the case[vii], and Hirst appealed the judgment, taking the case to the European Court of Human Rights (“ECHR“).

In 2005, in Hirst v UK the ECHR ruled that the ban breached the prisoners´ fundamental right to free elections, as protected by Protocol I, Article 3 of the European Convention on Human Rights (“Convention“).[viii] The Convention has been implemented into UK law by the Human Rights Act 1998.[ix]

After the ECHR judgment, the UK Government sought to comply with it and pass legislation to overturn the ban, however Parliament did not support any of the proposals.[x] The issue became highly politicised, with a general outcry that the UK Parliament no longer had sovereignty to independently enact laws, and that the judgments of the UK senior courts could be appealed to a court in France to be heard by a majority of non-UK judges.

In 2015, Prime Minister David Cameron sought to overcome the problem, and promised to repeal the Human Rights Act 1998 and replace it with a UK bill of rights.[xi] This approach would effectively mean that the UK would no longer be subject to the Convention, and that the UK Parliament and courts would no longer be subject to the jurisdiction of the ECHR. By creating its own bill of rights, the UK would be allowed to enact laws as it saw fit.

In 2015 and 2016, the UK Conservative party was experiencing an increasing number of defections of MPs to the EU-critical United Kingdom Independence Party (“UKIP“), and additionally faced a loss of its grassroots supporters.[xii] In response to this as well as a number of other issues, Prime Minister David Cameron announced a referendum, which would allow the British people to decide whether to remain in the EU or to leave, i.e. Brexit.

A continent of Europes

It is at this point we need to consider the word “Europe”. Europe is one of seven continents, extending from Portugal, Spain and France in the West to the Ural mountains in Russia in the East.[xiii] For this reason, the word has seen widespread usage in various contexts.

The European Union is a socio-political union of 28 Member States, first established on 1 January 1958. Its decision-making bodies include the European Commission, the European Council, and the European Parliament.

Rather confusingly, there is the separate Council of Europe. Established on 5 May 1949 and therefore pre-dating the EU, the Council of Europe has 47 member countries. These include the EU Member States, as well as countries such as Russia, Ukraine and Turkey.[xiv] Its aims include the promotion of human rights, democracy, and the rule of law, and to this end, the Council of Europe adopted the Convention in 1950.

The Council of Europe and the EU are frequently confused with one another.[xv] Indeed, they have similar names, similar flags, and both have an international court which has wide-reaching relevance.

In 1959, the ECHR was established in Strasbourg to hear cases concerning potential breaches of human rights by the member countries of the Council of Europe. It was on this basis that Hirst took the UK to the ECHR.

On the other hand, the Court of Justice of the EU (“CJEU“) is the highest court of the EU, based in Luxembourg. Its tasks include ensuring the Member States and the EU bodies themselves comply with EU law. The CJEU is often criticised because some believe it removes sovereignty from Member States´ national courts, however this is misleading. The closest competence it has in this regard, is that it has a monopoly on the interpretation of EU law.[xvi]

The best way to explain this concept is as follows. As EU law seeks to harmonise various social and economic policies across the 28 Member States, it must be applied consistently to be effective. If a court in the UK for example needs to understand what a specific point in EU law means in order to make its judgment, it must refer this question to the CJEU for interpretation. The CJEU will then hear the case and decide on how the specific point in EU law must be interpreted. After this, the UK court will then continue to make its own judgment based on this interpretation. National courts therefore retain their sovereignty in interpreting national law.

From the perspective of the UK Parliament, it is arguable that the Convention and the ECHR have placed greater restrictions on the UK´s law making powers than EU law and the CJEU.[xvii]

It is however noteworthy that after the second World War, UK Prime Minister Winston Churchill proposed the concept of the Council of Europe, and David Maxwell Fyfe, a UK lawyer and lead prosecutor at the Nuremberg trials, prepared the first draft of the Convention.[xviii] The UK therefore took the lead in developing the European standard of human rights.

In light of the general similarity between the institutions of the EU and the Council of Europe, the CJEU and the ECHR, the increasing concern about loss of national sovereignty, as well as the publicity of Hirst v UK, the repeal of the Human Rights Act 1998 and campaigning for Brexit, it is possible that the distinct concepts of withdrawing from the Convention and withdrawing from the EU may have become mixed.

On this point is interesting to note that, despite the Conservatives´ prior energetic campaigning for the UK bill of rights and claims that the Convention restricted UK law making powers, since the announcement of the Brexit referendum and the negotiation proceedings with the EU in 2016, the political will to pursue the repeal of the Human Rights Act 1998 has all but disappeared.

Perhaps it does not require a stretch of the imagination that, at least in respect of the sovereignty issue, the understanding of some may have been that the UK had sought an answer on the withdrawal from the Convention, rather than from the EU.

 

Please note that the views expressed are those of the author and do not necessarily represent or reflect the views of Munich European Forum e.V.

 

References:

[i] https://www.parliament.uk/about/how/role/sovereignty/

[ii] Specifically, Article 79(3) of the Grundgesetz; https://www.gesetze-im-internet.de/gg/art_79.html

[iii] Done by means of the European Communities Act 1972; https://www.legislation.gov.uk/ukpga/1972/68/contents

[iv] https://www.euractiv.com/section/uk-europe/linksdossier/europe-a-la-carte-the-whats-and-whys-behind-uk-opt-outs/

[v] https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates

[vi] https://www.telegraph.co.uk/news/uknews/law-and-order/8103007/Votes-for-prisoners-John-Hirst-profile.html

[vii] Specifically, Section 3 of the Representation of the People Act 1983; http://www.legislation.gov.uk/ukpga/1983/2

[viii] Case Hirst v UK (No 2) (2006) 42 EHRR 41; https://www.telegraph.co.uk/news/uknews/law-and-order/8103007/Votes-for-prisoners-John-Hirst-profile.html

[ix] https://www.legislation.gov.uk/ukpga/1998/42/pdfs/ukpga_19980042_en.pdf

[x] https://www.bbc.co.uk/news/uk-politics-20053244

[xi] https://www.bbc.com/news/uk-politics-33134338

[xii] https://www.telegraph.co.uk/news/politics/conservative/12071888/The-Conservative-Party-should-be-worried-about-its-long-term-prospects.html

[xiii] https://opinionator.blogs.nytimes.com/2012/01/09/where-is-europe/

[xiv] https://www.coe.int/en/web/portal/47-members-states

[xv] https://www.coe.int/en/web/about-us/do-not-get-confused

[xvi] https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en

[xvii] https://www.echr.coe.int/Documents/CP_United_Kingdom_ENG.pdf

[xviii] http://www.journalonline.co.uk/Magazine/56-9/1010095.aspx

Brexit: A Friendly Users Guide

by Kenneth Wallace-Mueller, Member of the MEF Board

Fifty days ago, on 23 June 2016, the people of the United Kingdom went to the polls to vote on whether the UK should withdraw from the European Union (the so-called “Brexit”). In the months running up to the referendum, the result was anyone’s guess. In hindsight, it seemed that few really did believe that Brexit would happen.

The news that the UK – with the notable general exceptions of Scotland, Northern Ireland, Greater London and Gibraltar – had voted for Brexit came as an international shock. The unthinkable had happened. Fifty days later – what is going to happen?

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The generally accepted approach to Brexit is the now-famous Article 50 of the Treaty of the European Union (“TEU”). Whilst this Article has been the subject of much media discussion, the key is in paragraph 2:

“A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.”

As Article 50 has never been used before, its interpretation is essential. The generally accepted interpretation is that firstly the UK Prime Minister will give notice to the European Council – the college of Heads of State of the EU Member States. Of note is that this can be done at a time selected by the UK, and it cannot be pressurised into doing so. The new UK government led by Prime Minister Teresa May has suggested that it may be invoked in early 2017.

This will trigger a 2-year negotiation period in which the UK and the EU will negotiate the withdrawal of the UK. It is generally believed that in these negotiations the EU will be represented by the European Commission, however only once given the authority by the European Council and Parliament. During this period, the UK will remain a full member of the EU, continuing to be subject to EU law and jurisprudence, however it cannot take part in discussions which concern its withdrawal as a Member State.

The law does not specify what form the “framework” between the UK and EU should take. In the worst case, there will be no agreement within the negotiation period will expire, and no extension will be agreed upon. More likely however will be a withdrawal agreement or – in the best case – a full UK-EU cooperation agreement.

In any case, there is great speculation what form the relationship will take. This is both a legal and a political issue, driven by the possibilities offered under a wide range of legal sources, as well as political pressure from the British people, EU heads of government, third countries, and other international players. The topics of discussion may range across the 35 chapters of the EU acquis communautaire. In short – the negotiation will be complex, highly technical and without precedent.

An important factor to the UK is the tariff-free access to the EU Internal Market, i.e. free movement of goods, services and capital without customs or other import/export taxes, whilst having control over the movement of EU citizens and people of third countries into the UK. Such a model does not currently exist, as it would normally constitute a violation of the EU fundamental freedom of the movement of people.

As negotiations have not started, in principle anything is possible depending on the priorities of the UK and EU, as well as the signal the EU would want to send to third countries and any other Member States who might consider leaving in the future.

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The main cooperation models currently discussed are the Norwegian model, the Swiss model, the Turkish model, and the WTO model:

Norway: The European Free Trade Association (“EFTA”) is an organisation with four members: Norway, Iceland, Liechtenstein and Switzerland. EFTA is a free trade organisation whose member states historically were either unable or did not want to join the EU. With the exception of Switzerland, the three EFTA states as well as the EU Member States are parties to the European Economic Area (“EEA”) agreement, which created the European Internal Market – the basis for free movement between EEA member states. Post-Brexit, subject to consent of the four EFTA members, the UK could consider membership of EFTA, which has obligatory membership of the EEA. This would allow continuation of tariff-free trade with EU Member states, however – normally – it would prevent the UK from limiting free movement of EU citizens into the UK.

Switzerland: Compared to Norway, where certain bodies of EU legislation (includes those which enforce free movement) are adopted into the EEA agreement, Switzerland’s relationship to the EU and its membership of the Internal Market is regulated by a large number of bilateral agreements. This may be more attractive to the UK, as in principle it may allow it to select which EU laws it wants to apply. In doing so, the EU presents Switzerland with finalised EU legislation, however in practice it is not a conventional negotiation as the EU is not fully prepared to make any significant amendments to the text. In a referendum in 2014, the Swiss people voted to impose quotas limiting the movement of EU citizens into Switzerland, constituting a violation of the free movement of people, a mandatory agreement between the EU and Switzerland. Combined with the slow negotiation process, EU-Swiss relations have since then remained frosty, and the EU will unlikely consider this option for the UK.

Turkey: The EU and Turkey agreed upon a customs union in 1995, which means there are no customs tariffs or quotas between the two parties, i.e. free trade in goods, but not agricultural goods or services. Similar agreements exist with the microstates of Andorra and San Marino. For the UK, this model would have the advantage of not having to implement the principle of free movement of people. As with Turkey however, the UK would have to apply the EU common tariff to all third countries without the ability to control it. As with Switzerland, EU would not apply unless agreed bilaterally, and the Turkey model does not include provisions on banking and financial sectors, another important factor for the UK.

WTO: Whilst heralded as a model in itself, the World Trade Organisation (“WTO”) model is more a default approach should the UK and EU not agree upon a form of cooperation. As both the EU and all 28 Member States are signatories in their own rights, any trade between the UK and EU will be subject to WTO rules. Such trade is governed by five central principles, whereby the most important relating the UK and EU is arguably that of non-discrimination, specifically the “most favoured nation” rule. This stipulates that any WTO member state should offer the same tariffs for trade with all other WTO member states. In effect, this brings neither advantage nor disadvantage for the UK, yet is a back-up plan of sorts.

Brexit will likely be one of the most extensive and significant negotiations seen in human history, with repercussions across the world. No precedent exists, and anything can happen. It is far too early to determine what the outcome will be, but understanding the interest of both parties is crucial. The UK will want tariff-free access to the EU Internal Market whilst being able to set immigration quotas, and the EU will want to ensure the integrity of its principles and laws, whilst discouraging other Member States from leaving – a recent phenomenon in light of dissatisfaction with EU politics. On the other hand, one cannot forget that [despite the policital pressure from different sources and intricacies of constitutional and international law] this will be a negotiation like any other, with the UK and the EU on opposite sides of the table trying to find a mutually acceptable solution.

Whatever happens, as written on the cover of Douglas Adams’s famous book “The Hitchhiker’s Guide to the Galaxy” –  don’t panic.

Please note that the views expressed are those of the author and do not necessarily represent or reflect the views of Munich European Forum e.V.