Britain and Europe: Disentangling the referendum knot

At UCL Laws we launched our Britain & Europe seminar series on 8 October, with a fascinating debate about the law and policy of referendums. The idea to set up these series (co-convened by Virginia Mantouvalou) was born from two powerful drivers of human activity: frustration and opportunity. Frustration, first of all, about the debate on “Europe” in this country – both the European Union and the European Court of Human Rights (ECHR). A debate which is too often ill-informed, even at the highest political level: see the open letter addressed to the Prime Minister following his Europe speech at the start of this year, and signed by a large group of EU law academics. But also a great sense of opportunity.  At least there is a debate, and we feel that academics should not just sit in their ivory tower, but participate and contribute. Certainly as legal academics we think we have something to say. So many of the Europe issues have a strong legal dimension: be it the reform of the EU treaties and of EU decision-making; the “balance of competences”; the governance regime of the Eurozone and of the single market in financial services; EU free movement and immigration issues; social policy and labour law; or the effects of ECHR case law.  Our seminars are aimed at disentangling the legal and policy issues, and at contributing to what I would call a more “legal-evidence-based” approach to policy-making in the sphere of Britain and Europe.

Find a new collection of literature and online bibliography on the topic of Britain and Europe in our comprehensive EU Resource Area.

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Our first seminar on referendums was a brilliant start.  Jeff King brought together an excellent panel of speakers: Paul Craig (Oxford) is a leading EU-law academic, Robert Hazell (UCL Constitution Unit) is a house name in UK constitutional matters, and Stephen Tierney (Edinburgh) has done groundbreaking work on referendums.  What struck me at the seminar was the range of serious issues which the referendum “lock” provisions in the European Union Act 2011 raise.  This is not the 2017 in/out referendum which the Conservatives promise, and which would depend on the outcome of the next elections.  The Act is the implementation of the current coalition agreement, which sought to ensure that, if ever the EU’s powers were increased, a referendum would be required.  A lock on an increase in EU powers which the people may not want, and should have a right to vote on.  But it looks very much like the Act may result in an in/out referendum by default.  Whatever the merits of such a referendum, it is highly questionable whether the provisions of the Act put the UK in anything like pole position when it comes to reforming the EU.

Symposium marking the re-publication of Hersch Lauterpacht's An International Bill of Rights of Man, with the participation of Sir Elihu Lauterpacht QC CBE, Lord Faulks QC, Baroness Helena Kennedy of the Shaws QC, Lord McNally, Stuart Wheeler, and Professor Philippe Sands QC.

An International Bill of Rights of Man: Where Next?

Why that is so came out clearly from the debate at the seminar.  The Act has the effect of making incremental EU Treaty change next to impossible, because of the very tight definition of when EU powers are increased.  In fact, there is an in-built tension between the Act and the Lisbon Treaty's attempts to set up a more straightforward system of Treaty change for technical, minor, or discrete issues: the so-called simplified revision procedure (which does not require an intergovernmental conference).  One of the simplified revision procedures is conditioned on not increasing EU competences - the EU Treaty expressly prohibits this.  Yet under the strict provisions of the Act the position may well be seen to be different.  A UK Prime Minister agreeing in Brussels to the use of this procedure may come back to Westminster, to find out that in fact a UK referendum is required.  But the tension gets even worse with the second of the simplified revision procedures: the so-called "passerelle", which allows the European Council to decide to move from unanimity to majority voting, in a particular area.  In contrast with other Treaty amendments, these kinds of changes do not require any domestic approval or ratification.  Under the provisions of the EU Act, however, a referendum is required before any UK government may commit itself to new EU majority voting.  To give an example, the UK Prime Minister debating in the European Council the use of this procedure, on something like "can there be EU majority voting on environmental measures affecting quantitative management of water resources", would first need to set up and win a UK referendum (with all the expense this involves).  This is of course politically very unattractive, and in practice next to unworkable.  The British people would be asked to say "yes" to this hypothetical change, even before the EU actually adopts it.  In theory, some other government might still say "no", meaning that the UK would have organised a completely pointless referendum.

The Act therefore runs counter to these Lisbon Treaty innovations. Other governments are of course aware of this, and will no doubt hold back from using the procedure, because it may trigger a UK referendum.  This UK “break” on incremental Treaty change leaves but one alternative, in practice: that of a broader re-negotiation of the EU Treaties.  There are different views out there on whether such a re-negotiation is on the cards or not.  My own view is that the governance issues facing the Eurozone will at some point simply require Treaty change.  As things stand today, the Eurozone reform measures are already sailing perilously close to the wind of EU legality.  And it is clearly not in the UK’s, or indeed anyone’s interest that respect for the EU Treaties be eroded.

So why will the UK not be in pole position when the re-negotiation takes place?  Simply because any conceivable deal will involve some increase in some EU powers, under the strict terms of the EU Act 2011 – and will therefore trigger a referendum.  As a result the UK government of the day will not be able to go into the negotiation with any real bargaining chips.  The other governments will realise, from the start, that there will be a UK referendum, whatever the outcome.  And they will realise that the UK government of the day will not be able to avoid putting the in/out question to the people, in such a referendum.  The political climate in this country on the Europe issue makes it next to inconceivable that a referendum would only be on approving or disapproving substantial Treaty changes, and not on the UK’s continued membership.

I think this shows what a careful legal dissection may contribute to the policy debate.  At any rate I came out of the seminar convinced that, at some point in coming years, there will be a referendum on EU membership.  We will have to run many more seminars on Britain and Europe!

• Piet Eeckhout, Professor of European Law (UCL Laws)