Does EU Law Bind Parliament as to Withdrawal from the EU? British Expats and Their Right to Vote (Shindler)

Originally published on the UK Constitutional Law Blog (16 June 2016).

With the Brexit referendum quickly approaching, the courts were confronted with an EU law challenge against a provision of the European Union Referendum Act 2015 (‘the 2015 Act’) that, by incorporating the scope of the franchise for a general election, excluded from the franchise those British citizens who are resident abroad and were not registered to vote in the past 15 years. The challenge, brought by a World War II veteran Harry Shindler MBE and a White and Case Brussels partner Jacquelyn MacLennan, was rejected by the Divisional Court, the Court of Appeal and the Supreme Court (as not even arguable).

In the Court of Appeal, the Master of the Rolls concluded that as a matter of EU law, EU law does not regulate withdrawal of a Member State from the EU. However, in this short note I want to focus on the alternative justification given by the majority of the Court of Appeal (Elias LJ, with whom King LJ agreed). On that view, notwithstanding what EU law claims, EU regulation of withdrawal is not incorporated into UK law through the European Communities Act 1972 (‘the 1972 Act’). The point is important whichever way the referendum vote ends up going.

In the case of a decision to exit the EU, there may be a need for Parliament to enact a great deal of statutory law, which could be challenged in courts as incompatible with EU law. If Elias LJ is correct, as I think he is, at least some of those challenges will have to fail irrespective of what EU law says. More generally, even if the decision will be to remain, this case helps to understand in which situations UK courts are under a domestic legal duty not to apply EU law.

Judicial duty not to apply EU law

As I argue in a new paper, UK courts are sometimes under a duty, grounded purely in UK law, not to apply EU law even when it uncontroversially claims some sort of domestic legal effect. True, such cases are likely to be rare, given the breadth of the incorporating rule from the 1972 Act and the many tools that EU law itself has to avoid situations of open conflict with domestic constitutional law. What is more, some UK legal principles and doctrines of fundamental normative significance, like the separation of powers, the rule of law or the doctrine of precedent, may work to extend the scope of the rule of incorporation of EU law (as I suggested in my recent post on this blog).

The scope of the binding effect of EU law in UK law is a matter of statutory interpretation, mostly of the 1972 Act, informed by considerations of fundamental principle. Naturally, the proper result of interpretation of the 1972 Act is bound to be contentious sometimes. There are, however, clear cases where EU law is not incorporated in UK law. To name perhaps the clearest: some parts of the EU Treaties are expressly excluded from the scope of incorporation in the 1972 Act, as Lord Mance JSC noted in his judgment in Assange ([209]-[218]).

Aidan O’Neill QC, arguing for the claimants in Shindler, was quick to point out that there is no express exclusion of domestic effect of EU law in matters of withdrawal from the EU in the 1972 Act. What then grounds the conclusion that those matters are outside of the scope of the incorporating rule?

Withdrawal from the EU and the scope of the 1972 Act

In the Court of Appeal, Elias LJ (joined by King LJ) relied on what may characterized as a functional interpretation in the light of the principle of parliamentary sovereignty. He stated ([58]):

Parliament agreed to join the EU by exercising sovereign powers untrammelled by EU law and I think it would expect to be able to leave the EU in the exercise of the same untrammelled sovereign power … Parliament would not have intended that the UK should give precedence to EU law when the very question to be decided is whether the UK should continue to give precedence to EU law.

In other words, given that parliamentary sovereignty is still the core constitutional principle of UK law, the incorporating rule from section 2(1) of the 1972 Act is to be interpreted broadly only to the extent it furthers Parliament’s voluntary and revocable choice for the UK to be a part of the EU. The focus here is on the ‘revocability’ and on impossibility of legal limitation thereof.

Elias LJ also raised an auxiliary point of persuasive authority. He referred to the decision of the Bundesverfassungsgericht (the German Federal Constitutional Court) in the Lisbon Treaty case. There, the German Court confirmed that as a matter of purely domestic constitutional law (at 233):

… withdrawal from the European union of integration (Integrationsverband) may, regardless of a commitment for an unlimited period under an agreement, not be prevented by other Member States or by the autonomous authority of the Union.

Both the Master of the Rolls and Elias LJ ([7] and [59]) quoted the submission of the German government in that case reiterating the well-known principle of German constitutional law that the Member States are ‘the masters of the Treaties’ (Herren der Verträge). For Elias LJ ‘the logic of this approach is that section 2(1) should not be read as extending to the very question of withdrawal itself’ ([59]).

Three arguments on the grounds of the limits of EU law

Consider who made the three different arguments on the limits of EU law in Shindler:

[1] EU law itself does not claim to regulate the matters of the procedure of withdrawal of a Member State from the EU. This is an argument relied on by the Government before all courts and accepted unanimously by the Court of Appeal (but not by the Divisional Court).

[2] The ECA 1972 properly construed does not incorporate EU legal rules concerning the procedure of withdrawal of the UK from the EU (so ultimately it does not matter what EU law claims on this issue). This is the alternative justification given by the majority of the Court of Appeal (Elias LJ, joined by King LJ), but not argued, by either party, before that court or before the Divisional Court.

[3] The EU Referendum Act 2015 by implication derogated from the 1972 Act and thus made it the case that EU law does not have domestic effect in matters covered by the 2015 Act. Aidan O’Neill QC, acting for the original claimants, was the only person to state this argument and to criticize it. He did so appearing before the Supreme Court asking for a permission to appeal (video).

Clearly, these are three distinct and independent arguments. The third one is rather implausible in this context, so it is not surprising that no one relied on it. It is a bit more surprising that O’Neill chose it as his object of criticism.

The fact of who made which argument suggests a more general conclusion. Despite encouragement from the Supreme Court in Assange, HS2 and Pham, advocates are still hesitant to make submissions on domestic limits of incorporation of EU law in UK law. One might be tempted to think that, to borrow a phrase from Yes, Minister, they have gone ‘native’ and that the sole perspective that appears to them is that of EU law.

The Solomonic solution of the Supreme Court

It was clear from the hearing that at least some of the members of the Supreme Court treated the second argument (interpretation of the 1972 Act) with more seriousness than advocates tend to. However, in refusing permission to appeal, Lady Hale DPSC chose not to rely on the limits of EU law at all (hence it was not important for her whether any of the three arguments succeeds). Instead, she assumed for the sake of argument that EU law applies and concluded that even on that assumption the case was not arguable.

There is nothing problematic with the approach of the Supreme Court. In fact, it is preferable to unnecessary gestures of explicit refusal to apply EU law. However, the point discussed here is important, because it will not always be the case that a situation of domestically not incorporated EU law is resolvable through EU law. It remains to be seen whether the bar, including EU law specialists, warms up to this approach or whether it will be up to the courts to keep bringing it up on their own accord.