Written evidence submitted by Prof Michael Dougan and Dr Michael Gordon

Liverpool European Law Unit, University of Liverpool

1. Our submission addresses the two main issues identified in the Call for Evidence:

• The potential impact on UK Parliamentary Sovereignty of the Government’s renegotiation exercise.  For ease of reference, our conclusions on this point are contained in para 16 below.

• Legal issues raised by the various substantive demands that might feature in the Government’s renegotiation.  For ease of reference, our overall assessment on this issue can be found at para 25 below.

Potential Impact on UK Parliamentary Sovereignty of the Renegotiation

2. The impact of the renegotiation process on the doctrine of the sovereignty of the UK Parliament is not straightforward to discern.  It is possible to identify potential impacts in two different senses:

• The impact of a number of substantive proposals for reform to be considered, and potentially promoted, by the UK Government as part of the negotiation process.

• The involvement of the UK Parliament – and perhaps especially the elected House of Commons, the democratic legitimacy of which provides the basis for Parliament’s claim to legislative sovereignty – in terms of its engagement in, or the extent of its oversight of, the negotiation process.

3. With respect to substantive proposals for reform, of greatest potential relevance in this context would be: (i) attempts to expand the scope of, or the extent of the obligations imposed on EU institutions by, the “yellow card” procedure; (ii) the creation of a collective “red card” procedure, allocating to national parliaments a power of veto over EU legislation, if agreement existed among a sufficient, specified number of legislatures; and (iii) a unilateral veto exercisable by the UK Parliament or House of Commons (the latter two proposals having been discussed, and given varying levels of support, in the Committee’s 2013 report, Reforming the European Scrutiny System in the House of Commons).

4. With respect to the involvement of Parliament in the negotiation process, of considerable significance will be: (i) the role of Parliament in scrutinising and enacting the European Union Referendum Bill, establishing the question, rules and other arrangements pertaining to the referendum; (ii) the role of the European Scrutiny Committee and other appropriate select committees in evaluating the details of the reform package negotiated by the Government; and (iii) the role of Parliament in holding the Government to account in general, both while it is engaged with EU institutions and Member States in the renegotiation process, and once the outcomes of that process become available.

5. Yet it is not clear that the undoubtedly significant issues relevant from either perspective are best understood in terms of their impact on parliamentary sovereignty.  The legal doctrine of parliamentary sovereignty is one principally concerned with the scope of the legislative authority of the UK Parliament.  While there remains some debate about the precise implications of parliamentary sovereignty, the core of the concept is clear: it is a doctrine which allocates to Parliament a law-making authority which is legally unlimited.

6. The important issues outlined above, relating to the impact of the renegotiation on Parliament, do not, however – for different reasons – raise significant questions about the nature or extent of legislative sovereignty in the UK.  Instead, we suggest that the issues raised by the substantive reform proposals which may be the subject of the renegotiation are better understood in terms of their (potential) impact on the scope of Parliament’s practical power, rather than the extent of its authority in principle.  Similarly, the issues relating to Parliament’s engagement in, or oversight of, the renegotiation process are better understood in terms of their (potential) impact on the effectiveness of parliamentary scrutiny, rather than respect for parliamentary sovereignty. 

7. Much of the difficulty stems from the fact that parliamentary sovereignty is a principle of domestic constitutional law, which does not readily translate to the supranational European level.  Indeed, rather than having implications which can be accommodated within the architecture of the EU treaties, or reflected in mechanisms which engage national parliaments in EU activity, parliamentary sovereignty might best be understood as a doctrine which exists outside of, and (to some extent) in tension with, fundamental ideas on which the EU legal system is founded.

8. In particular, in the UK a reconciliation has been achieved between parliamentary sovereignty and the principle of the supremacy of EU law: Parliament has legislated to give legal effect within the UK to EU norms in a way which gives them priority over domestic law, yet the authority of EU law is contingent on the statutory authorisation of Parliament, which could in principle be withdrawn or (potentially) reconfigured.

9. When this is recognised, we see the importance of drawing a distinction between different proposals for substantive reform which may be debated as part of the renegotiation process.  On the one hand, we have proposals to extend the scope or consequences of the “yellow card” procedure, and/or the creation of a collective “red card” veto procedure as a matter of EU law.  On the other hand, we have proposals for the creation of a unilateral veto permitting the disapplication of EU law in specified subject areas.

10. The former – proposals to extend the “yellow card” procedure, or introduce a “red card” procedure – could clearly be considered as part of the renegotiation process, and potentially be incorporated in future treaty reform, or given effect through intergovernmental agreements concerning voting practice in the Council and/or European Council (as we discuss below).  There would no doubt be a range of details to agree upon – in particular, concerning the thresholds at which, or the circumstances in which, “yellow” or “red” cards could  be wielded – yet extended provision in either way could enhance the influence and authority of national legislatures, including the UK Parliament, in the EU legislative process.

11. Yet it is important to note that such proposals would impact on (and most likely extend) the power and authority of Parliament, rather than its sovereignty.  For if such proposals fail to be agreed as part of the Government’s renegotiation, parliamentary sovereignty should not be viewed as if somehow in deficit as a result.  Instead, the position would remain the same as at present: a domestic reconciliation has been achieved between parliamentary sovereignty and the supremacy of EU law, which affords contingent force to the latter, on the basis of an exercise of authority derived from the former.  The UK Parliament may or may not be afforded greater authority in the EU legislative or policy formation process as a result of reform negotiated by the Government, yet it will retain legislative sovereignty regardless.

12. Turning to proposals as to the creation of a unilateral veto permitting the disapplication of EU law in specified subject areas, a contrasting difficulty emerges.  Such a possibility is arguably best understood as an issue of domestic constitutional law, rather than one which is relevant to the Government’s renegotiation of the UK’s position in the EU.  For the doctrine of parliamentary sovereignty suggests that such a power – for the unilateral disapplication of EU law in a specified area – exists already as a matter of UK constitutional law, whether it is given formal effect through some explicit mechanism or not (and considerations of realpolitik might suggest that there is little to be gained by altering this position).

13. In its 2013 report (noted above), in suggesting that measures allowing for a unilateral veto might be developed, the Committee argued that this was because the mere development of a “red card” procedure could be “no substitute for Parliamentary sovereignty” (at [167]).  This is indeed the case (in part for reasons we discuss above), but it is also not clear that anything more than acknowledging the continuing fact of Parliament’s sovereignty is necessary in this context.  As matter of domestic law the scope of Parliament’s legislative authority is largely clear, with little uncertainty in this specific context.  It is therefore difficult to see how (or indeed why) the EU treaties could or would be amended to reflect this settled domestic position, which is underpinned by recognition of the doctrine of parliamentary sovereignty.

14. With respect to the issues relating to Parliament’s engagement in, or oversight of, the renegotiation process, it is of course right that Parliament should be central to the debate and scrutiny which seek to ensure that the Government is held to account as an EU reform package is negotiated.  But again, however, this is not directly an issue of parliamentary sovereignty.  While the constitutional primacy of Parliament flows from parliamentary sovereignty, which is both the central organising principle and focal point of the UK constitution, the doctrine does not prescribe a definitive role for the UK’s legislature in the renegotiation process.

15. Indeed, in providing for a referendum to occur in exercise of its sovereign legislative authority, through (eventual) enactment of the European Union Referendum Bill, Parliament will necessarily release control over the decision as to continuing EU membership to the electorate.  Consequently, while Parliament and parliamentarians will no doubt play an important role in framing and informing debate about the question of EU membership, the Government is entitled to engage in negotiations and then put an offer before the voters on which a decision will be made.  Parliament should hold the Government to account throughout, and seek to offer effective scrutiny of the possibilities for reform and the finalised package of proposed measures, but the level of the legislature’s involvement in this process will not impact upon (or have the potential to enhance or diminish) parliamentary sovereignty.

Overall Assessment

16. The symbolic importance of parliamentary sovereignty as the fundamental democratic principle of the UK constitution is clear, and it is therefore understandable when appeals are made to its significance.  But the doctrine of parliamentary sovereignty is not directly engaged in the renegotiation process, or likely to be affected by the outcome – potential impacts on Parliament in this context are instead better understood in terms of the practical power of the legislature and the effectiveness of scrutiny it is positioned to provide.  There is a risk in claiming that parliamentary sovereignty might be negatively (or not sufficiently positively) affected by the Government’s EU renegotiation, both in terms of its substantive results and the process itself.  This risk is that the present stable reconciliation of parliamentary sovereignty and the supremacy of EU law might appear to be undermined – even though this is in principle not occurring, for the reasons we explain above – with the consequence that prophecies about parliamentary sovereignty being diminished might become self-fulfilling.

Legal Aspects of the Renegotiation: Some Comments on the Available Instruments

17. For the time being, it is difficult to identify precisely which substantive demands the Government intends to make in its negotiations and thus to assess the range of legal mechanisms available to achieve those objectives.  For the purpose of usefully exploring some of the main issues, we have acted on the assumption that the Government will draw directly upon the various demands contained in the Conservative Party’s 2015 election manifesto (and as a consequence, we do not discuss other issues only raised subsequently, e.g. revisiting the UK’s participation in EU employment legislation).  On that basis – and making no comment whatsoever on the political desirability or feasibility of any given demand – we offer the following observations.

18. First, some demands could clearly be achieved through action at the domestic level (if even that is required) and without the need for any particular measures to be adopted at the EU level.

• E.g. tougher and longer re-entry bans in cases involving the abuse of free movement law.  Directive 2004/38 respects the competence of Member States to impose sanctions against the abuse of free movement rights.  Such sanctions should meet the general requirement of being effective, dissuasive and proportionate – but that still leaves every country (including the UK) considerable discretion over its penalties for abusive behaviour.

• E.g. in respect of new EU Member States, free movement should not apply until their economies have converged much more closely with existing Member States.  This concerns the UK’s negotiating position on the content of a hypothetical future accession treaty.  Since the latter must be approved and ratified by each existing Member State, as well as the relevant acceding country, the UK already exercises a direct veto power over any future accession treaty which does not include suitable provisions. 

• E.g. ensuring that defence policy remains firmly under UK national control.  This is simply a promise to maintain the status quo.  Any change in the current position would require full UK approval – which would in turn have to comply with the stringent procedural controls laid down in the European Union Act 2011.  

19. Secondly, it would clearly be possible for some demands to be realised through amendments to existing EU secondary legislation.

• E.g. stronger powers to deport criminals and to stop their re-entry into the UK.  To make significant changes in the legal framework here implies amending the relevant provisions of Directive 2004/38 currently governing refusals of entry into / expulsions from the territory on public policy, security or health grounds.  Such amendments could apply to all Member States (not just the UK), particularly if phrased as an authorisation (rather than an obligation) to act. 

20. Thirdly, certain demands would clearly seem to require amendment of primary Treaty law.

• E.g. ending the ability of EU jobseekers to claim any jobseeking benefits; and requiring EU jobseekers to leave the UK if they have not found employment within 6 months.  Although the rights of residency and equal treatment for migrant EU jobseekers are regulated by Directive 2004/38, the European Court of Justice has consistently held that those rights actually derive directly from the Treaties.  As such, it might not be sufficient to impose or permit more restrictive provisions merely through amendments to Directive 2004/38; the underlying fabric of primary Treaty law itself would probably need to be revised.  That would be true, regardless of whether this demand was designed to apply to the UK alone or to be capable of wider application among the Member States – though in the former case, it seems safe to assume that the other 27 Member States would insist on enjoying reciprocal powers to restrict the residency and equal treatment rights of migrant UK jobseekers within their own territories. 

21. However, many of the key demands set out in the Conservative Party’s 2015 manifesto are highly ambiguous.  Without greater detail, it is more difficult to ascertain the nature of the legal instruments appropriate for their achievement.  In particular: 

• E.g. EU migrants must live in the UK and contribute to the economy for at least 4 years before being entitled to tax credits or child benefits; and should live in an area for at least 4 years before becoming entitled to claim social housing. 

On its face, the UK would seem here to be calling for “special treatment” through exceptional powers to directly discriminate against all categories of EU migrants, economically active as well as economically inactive, in breach of the existing framework of EU free movement law.  If so, that would almost certainly require amendment of (i.e. a specific UK derogation from) the primary Treaty provisions.  Moreover, it seems safe to assume here that the other 27 Member States would insist on reciprocal powers to restrict the social rights of migrant UK citizens within their own territories.

However, the UK position may well prove to be more nuanced than the 2015 manifesto appears to suggest: for example, the Government might only advocate the creation of indirect discrimination, through the use qualifying criteria that do not expressly mention nationality; and rather than target all migrant EU citizens, the Government might distinguish between different categories of migrants.  In principle, such indirect discrimination could be enacted through purely domestic legislation – but the latter would still need to comply with any obligations imposed under existing EU law and would thus be amenable to future judicial scrutiny.  E.g. as regards economically inactive migrant EU citizens, any new indirectly discriminatory UK rules would need to be assessed by reference to the “unreasonable burden” test developed under Directive 2004/38 and in ECJ caselaw such as Förster (2008).  E.g. as regards economically active migrant EU citizens, the proportionality of any new indirectly discriminatory UK rules would need to be tested – but taking into account (first) that the ECJ generally regards work per se as a sufficient contribution to justify access to social benefits; and (secondly) that residency requirements are generally not enforceable against frontier workers, i.e. those who work in one country while maintaining their primary residence in another.  In any case, in order to qualify as indirect discrimination, any new UK rules would have to be equally applicable to UK citizens and other lawful residents – a restriction that could have considerable side-effects, particularly in the case of access to social housing, were a residency requirement indeed to apply in respect of a “local area” (rather than the national territory as a whole).

• E.g. EU migrants should not receive child benefit or child tax credit in respect of children living abroad (regardless of how long they have worked / how much tax they have paid within the UK).  At the very least, this demand would require amendment to Article 67 of Regulation 883/2004 on cross-border social security coordination.  However, it is particularly important to know whether this demand is intended to apply to the UK alone (subject again to reciprocal powers for the other 27 Member States); or instead to extend across all the Member States (on either a compulsory or an optional basis).  Any “special treatment” for the UK enacted by means of legislative amendment alone would be more vulnerable to judicial challenge on the grounds that the Union itself has created blatantly discriminatory treatment between its own citizens.  Such “special treatment” would again be more securely realised through amendment of (i.e. UK derogation from) primary Treaty law. 

• E.g. toughening the requirements for non-EU spouses to join EU citizens, including the imposition of an income threshold and an English language test.  At the very least, this would require an amendment to the relevant provisions of Directive 2004/38 governing the entry and residence rights of protected third country national family members. Reforms could well apply to all Member States – though one suspects that political support for such restrictions would be limited, particularly if they were intended to extend to migrant workers as well as the economically inactive.  In theory, even if the UK were to argue here for “special treatment”, it could be enacted through EU secondary legislation: the detailed migration rights of protected third country national family members do not derive directly from the Treaties.  But as before, “special treatment” through legislative amendment alone would appear more vulnerable to judicial challenge and might be safer enshrined in primary Treaty law.

• E.g. national parliaments should be able to work together to block unwanted EU legislation.  As we observed above, this demand for collective parliamentary empowerment could cover a range of ideas: from strengthening the existing “yellow card” system in respect of the principle of subsidiarity; to extending that “yellow card” system to the legal basis, proportionality or simple desirability of EU legislative proposals; to introducing a fully-fledged “red card” power for national parliaments to veto EU legislative proposals (whether on subsidiarity grounds or beyond).  In fact, much of that could be achieved through action falling short of either formal legislation or Treaty amendment, but aimed at supplementing in practice the workings of the existing “yellow card” regime: for example, by intergovernmental agreement between the Member States, or within the framework of the European Council, about how government representatives should vote in Council when faced with national parliamentary opposition; or by inter-institutional agreement among the Commission, Council and European Parliament about how they will react to national parliamentary opposition when exercising their respective powers within the EU legislative process.  Provided they did not directly contradict explicit provisions contained in the Treaties themselves, such undertakings to exercise one’s political discretion in a particular manner under identified circumstances would be considered binding upon their signatories.  In the longer term, however, it would seem preferable (if only in the interests of greater transparency) for any new and extended powers of national parliaments within the EU legislative process to be laid down directly within primary Treaty law.

• E.g. protecting the UK economy, and the Single Market, from further integration by the Eurozone.  There is undoubtedly widespread support for clarifying the position and influence of the Eurozone bodies within the broader institutional framework of the European Union.  But it is unclear which specific concerns / safeguards the Government intends to advance here.  Some potential changes would surely involve primary law reform: for example, formal changes to the Council’s voting rules so as to offer any given State / group of States novel veto powers in the Union’s legislative processes.  But much could also be achieved at the level of the European Council.  For instance: an agreement that, for the purpose of voting on Single Market legislation, the Council should strive to achieve consensus; or will only proceed to vote on a Single Market measure if it gathers sufficient support from a certain number of both Euro and non-Euro States.  Or similarly: an agreement whereby, if a Member State provides reasoned evidence that a given proposal would damage the functioning of the Single Market, the matter will be referred to the European Council for urgent resolution – which might include abandoning the proposal, or significantly revising it, or deciding instead to proceed by way of enhanced cooperation.

• E.g. ending the UK’s commitment to an “ever closer union”.  On the one hand, these words are of very limited legal significance and play no appreciable role in the operation of the EU legal system.  On the other hand, they undoubtedly stir strong and conflicting emotions across the full spectrum of political opinion in and on Europe.  Legally speaking, it would be more than sufficient to meet the UK’s demands if the Member States (in an intergovernmental declaration or acting through the European Council) were simply to reiterate that this phrase has no legal force or significance and is capable of accommodating a diverse range of political understandings, including even an outright rejection of any further constitutional integration.  To go further – for example, by requesting a formal amendment that deletes “ever closer union” from the Treaties or seeks to “exempt” the UK from its (non-existent) commitments – would constitute a purely political demand. 

22. In the case of UK demands that entail either formal Treaty amendment or EU secondary legislation, the European Council can of course express the political agreement of the Member States to accommodate the UK’s wishes, but the Treaties themselves lay down: (first) the procedures for changing primary EU law, which will include the need for successful ratification by each Member State in accordance with its own constitutional requirements; and (secondly) the procedures for amending or creating EU legislation, which will include the participation of the Commission and (in most situations) agreement between the Council and the European Parliament. 

23. On the one hand, if the UK Government decides to proceed with a referendum on EU membership, before full ratification of any Treaty changes by the other 27 Member States, or the final adoption of any new EU legislative acts by the relevant Union institutions, there is an inherent risk of non-ratification / non-adoption.  On the other hand, the EU undoubtedly has a good track record of delivering on “referendum promises” made at the level of the European Council and requiring further EU legislative action or even Treaty reform, but which can only realistically be delivered beyond the timescale within which the relevant Member State intends to hold its own plebiscite: that was certainly the case, for example, with Denmark over the Treaty on European Union and then again with Ireland over the Treaty of Lisbon.  Whether such “referendum promises” take the form of a solemn agreement within the European Council, or even a binding international treaty among the Member States themselves, the underlying situation remains the same: all relevant political actors are well aware of the imperative need to respect the undertakings they have made and of the dire consequences which would otherwise follow. 

24. That said, it is inevitable that certain changes to EU legislation – particularly those which roll back the existing rights of migrant EU citizens or their protected third country national family members – may be challenged before the European Court of Justice as incompatible with the (hierarchically superior) Treaties, Charter of Fundamental Rights or general principles of Union law.  Of course, it is possible through careful drafting to minimise the chances of successful judicial review against controversial or divisive EU legislative acts – but in a society based upon the rule of law and an independent judiciary, it is not possible to exclude the very availability of judicial review or to predetermine its outcome with absolute certainty.  That risk does not apply in the case of UK demands which will enter into force through amendments to primary Union law, since the latter are not amenable to judicial review before the Union courts. 

Overall Assessment

25. Uncertain though the UK’s negotiating position might be, our analysis nevertheless suggests several key points worth bearing in mind:

• There is no “one size fits all” legal template for achieving the UK’s various demands.  Different objectives will be best served by different solutions.  For some objectives, there will be a choice of legal instrument available – each with its own advantages and disadvantages.

• Several of the UK’s key demands could be safely and securely achieved by action at the purely national level and / or through political agreements reached at the level of the European Council.

• In other cases, the UK’s demands would require either the enactment of EU secondary legislation or the amendment of primary EU law.  It is inevitable that achieving such reforms will involve considerably more time and (if they are not finalised before the UK’s own referendum takes place) a degree of uncertainty.  However, the EU has a good track record of delivering on political promises made before a national referendum. 

• It is also inevitable that – in the case of reforms rolling back from existing free movement / equal treatment rights for EU citizens / their protected family members, enacted either by the UK unilaterally or by means of EU secondary legislation – there is a possibility of judicial challenge before the European Court of Justice.  That is not to say the ECJ would uphold such challenges; one should simply acknowledge that they are possible and that their outcomes cannot be taken for granted.

• Particularly when it comes to free movement / equal treatment issues, the Government needs to clarify whether it intends to ask for “special treatment” in the form of specific derogations applicable only to the UK (though doubtless subject to reciprocity conditions); or for reforms that potentially apply to all 28 Member States.  That is not purely a political choice, but also has important legal implications: “special treatment” is more likely to require amendment of primary Treaty law rather than of EU secondary legislation. 

• Similarly, the Government needs to clarify whether it intends to target all migrant EU citizens regardless of economic status; or only those who are economically inactive and potentially in need of support from public funds.  Rolling back the existing rights of migrant workers is more likely to require Treaty reform; whereas restricting the access of economically inactive persons to publically funded benefits might be more readily achieved through EU secondary legislation (or even purely national action).

October 2015