What is sufficient to constitute an Article 50 decision to leave the EU?

This blog post is by senior lecturer Scott Styles.

The UK stands on edge of the momentous decision to leave the EU. It is therefore vital that the true meaning of Article 50 is understood. In particular it is my contention that this cannot be triggered by the decision of the PM or cabinet but only by Act of Parliament.

Article 50 begins by noting:

 Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

There are two essential elements here. Firstly, only the State which wishes to leave may make such a decision. Secondly, authority to make such a decision must be “in accordance with its own constitutional requirements.” So this in turn leads us to consider the requirements of the British Constitution. (Article 50 then goes on to say “A Member State which decides to withdraw shall notify the European Council of its intention.” The issue of notification is a matter not considered in detail here.)

In Britain it is Parliament which is sovereign, not the Prime Minister or even the whole Cabinet. The UK entered the EU by means of the European Communities Act 1972. The repeal of an Act of Parliament may only be done by a subsequent Act of Parliament to that effect. As the effect of an Article 50 notification is to trigger a two year timeline at the end of which that even UK would automatically cease to be an EU Member State that would be to nullify the effect of the 1972 Act as a matter of EU law. But as a matter of British law a statute may only be repealed by another statute. It therefore follows as a matter of British law that to have sufficient authority a Prime Minister would need that authority of an Act of Parliament to that effect giving him the authority to make an Article 50 notification and prospectively repealing the 1972 Act with effect from two years of making the notification.

To be clear, I do not think the authority of the House of Commons alone would suffice. What is needed is a statute passed by both Houses of Parliament (Lords and Commons) plus subsequent Royal Assent. There is of course the not insignificant issue of the pro Leave decision in the referendum of 23 June, but whilst that is politically very significant it is not legally enough. To comply with the EU legal requirement of a request “in accordance with its own constitutional requirements” a Prime Minster needs to get an Act through both Houses. As both Commons and Lords contain large Remain majorities this may prove challenging for any Prime Minster to obtain.

There is no doubt that a refusal by Parliament to give effect to the decision of a referendum would cause huge public outcry, even a constitutional crisis, but that crisis would be political not legal. There is already some evident of “buyer’s remorse” and that many Leave voters regret their decision or that many who abstained regret abstaining. There are two possible ways to square the political circle of a Remain Parliament defying the “will of the people” expressed in the recent referendum.

The first, and easiest, would be for Parliament to pass an Act authorising an Article 50 notification and repeal of the 1972 Act but to make the coming into effect of that Act conditional on it being approved by a post-legislative referendum.  There is a strong precedent for such a provision in the Scotland Act 1978. Indeed some might even go so far as to want to a 40% of the electorate rule as well as was found in the 1978 Act, although I personally think that would be going to far.

The second way to establish if it really is the “settled will of the British people” to leave the EU would be to hold a General Election (subject to the operation of the Fixed-Term Parliaments Act 2011) on the express issue of EU membership with every candidate declaring where they stand on the issue of EU membership. This might even result in candidates standing as “Labour/Conservative/LibDem Leave/Remain” candidates. If a pro Leave majority was returned then obviously such a Commons would happily pass an “Article 50 Act” and the Lords would be obliged to defer to the Commons on application of that Salisbury Principles.

There is also the argument that the consent of the devolved assemblies is needed, but this is a constitutional novelty. (This argument has not attracted the unflinching support of constitutional lawyers, or indeed a prominent Scottish National Party politician.) The strength of the argument I am advancing is that it rests on the classical Diceyan understanding of the British Constitution.

Scott describes himself as “a mere private lawyer”, but he hopes this blog post might add something to the emerging debate around Article 50. Further analysis of Article 50, and Parliament’s role in relation to it, can be found at the UKCLA blog and by David Allen Green.

Editor’s note: the initial title of this blog was “What is sufficient to constitute an Article 50 notification to leave the EU?” It was edited on 28 June 2016 to change “notification” to “decision”.

 

 

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Inheritance law and the European Union: the impact of ‘authentic instruments’

This blog post is by Dr. Jonathan Fitchen.

Aunt Jemima died last week. She was 102. She lived in Belgium and was so very fond of you – now her only surviving relative – that you went to stay with her on many happy family holidays. Jemima always promised that you would be left her money and property by her Belgian will. You heard of Jemima’s death from her neighbour, Jacques, who you phoned to find out why Jemima was not answering her phone. When you travel to Belgium to Jemima’s funeral you also learn from Jacques that as well as her Belgian will, Jemima entered into various other arrangements via a type of document called an authentic instrument. There are three authentic instruments, one each from Bulgaria, Italy and Spain. You don’t know what an authentic instrument is, and nor do you know if such things can affect your entitlement to Aunt Jemima’s money and property under the Belgian will.

An expert team from the Law School of the University of Aberdeen (consisting of Professor Paul Beaumont, Dr. Jonathan Fitchen and Ms Jayne Holliday) has worked for the European Parliament to address some of these questions by producing a comparative survey of the law concerning a special type of legal document called an ‘authentic instrument’ that is used in 22 of the 28 EU Member States in matters concerning wills and succession (‘succession’ being the word lawyers tend to use for ‘inheritance’). (The six Member States that do not are the UK, Ireland, Denmark, Sweden, Finland and Cyprus.) The matter has become more important because of a law called the European Succession Regulation (Regulation 650/2012).

Authentic instruments are formal documents created by public officials, such as notaries, from some civil law legal systems. They provide strong evidence of any officially verified facts that they contain.

The Succession Regulation applies directly in every EU Member State (except in the UK, Ireland and Denmark – but it can still affect their citizens in situations such as that in the example above). It determines issues such as: what the testator can do in a will to choose a law for the will before his death; or what law and procedures apply after his death if his estate is spread across different legal systems.

The Succession Regulation was created to deal with the problems of uncertainty arising from very different laws of succession across the legal systems of the EU. The worry was that the estate of an EU citizen from one EU Member State who then lived and worked in (or retired to) another EU Member State might be very much complicated by a patchwork quilt of different succession laws that could ALL be applicable to this single estate. The legal complexity would entail delays and extra costs many of which would be paid by the estate.

An important provision of the new Regulation is Article 59. Article 59 obliges the authorities in one Member State to accept an authentic instrument from another EU Member State by giving that document the same or very similar evidence effects to those that it would produce in the Member State from which it originated. To comply with Article 59 it is necessary to know what the evidentiary effects of authentic instruments in each of the 22 EU Member States that allow their creation are. This is what our Study does (PDF). We have explained what the domestic evidence effects of authentic instrument are in matters of succession so that lawyers and courts in other countries can properly comply with Article 59 of the Succession Regulation.

What does this mean for your entitlement to Aunt Jemima’s money and property? Well, if the authentic instruments from Bulgaria, Italy and Spain fall within Article 59 of the Succession Regulation they will (in nearly all imaginable circumstances) produce the same evidential effects in Belgium (or any of the other relevant EU Member States) as they produced domestically (with these points being covered in our Study): you may not get all of Aunt Jemima’s money after all!

Further details of this (and other) work undertaken by the Centre for Private International Law can be found here. An earlier blog post by Jayne Holliday looking at another aspect of Private International Law’s relationship with the EU is available here.

Expatriates Lose Supreme Court Bid for Right to Vote in EU Referendum

In this post Dr. Heather Green, Senior Lecturer, considers the law setting the franchise for the referendum on the UK’s membership of the European Union, which takes place on 23 June 2016.

Mrs Thatcher’s government was the first to legislate for expatriate voting rights, creating rules in the Representation of the People Act 1985 that permitted citizens overseas to continue to rely on their last UK electoral registration for up to 5 years after leaving for the purposes of voting in Parliamentary and European Parliamentary elections. The time period has since been varied: to 20 years in 1989; and then to 15 years in 2000. The European Union Referendum Act 2015, section 2 adopts this scheme. This was challenged in the courts by expatriates disenfranchised by the rule.

Harry Shindler, a 94 year old Second World War veteran, has lived in Italy since the 1980s. Jacquelyn MacLennan, a partner in a law firm in Brussels, has lived there since 1987. Both are British nationals, and neither holds another nationality. Their challenge was based on EU law, arguing that section 2 of the EU Referendum Act 2015 interfered with their rights to freedom of movement under EU law by effectively punishing them for choosing to exercise those rights for longer than the 15 years during which voting rights are enjoyed. The European Convention on Human Rights could not help their claim in this case, as the Convention right to free elections (found in Article 3, Protocol 1) does not extend to referendums. The Supreme Court confirmed this reading of Strasbourg doctrine in 2014, rejecting attempts to deploy it by prisoners disenfranchised in the Scottish independence referendum. (Strasbourg is where the European Court of Human Rights sits, so it is the decisions of that court that make up Strasbourg doctrine.)

Mr Shindler has conducted a long-running legal campaign to acquire the right to vote in UK elections. In 2013, he lost an earlier case before the European Court of Human Rights arguing that the 15 year time bar breached A3P1. The Court considered that it was within the margin of appreciation enjoyed by the UK to set this cut-off point as an approximate means of measuring the likely strength of the bond between expatriates and the UK. Case by case assessments of individuals’ links to the UK were not feasible. The Convention permits states to employ “bright-line” rules such as the 15 year time bar.

The EU Referendum Challenge

The first hurdle in this case relating to the impending EU referendum was to establish that EU law is engaged by the franchise law in the 2015 Act. In the Court of Appeal the government succeeded in its argument that it is not so engaged. Article 50 of the Treaty on European Union provides that “Any Member may decide to withdraw from the EU in accordance with its own constitutional requirements.” The Court of Appeal took the view that the 2015 Act forms part of those constitutional requirements, and as such the government was free to design the electorate for the referendum without considering the constraints imposed by EU law guarantees.

That would have been enough, but the court went on to consider the position if EU law was assumed to be engaged. the Court of Appeal endorsed the reasoning of the Divisional Court that the 15 year time bar did not interfere with free movement rights: the court did not accept that disenfranchisement in a one-off referendum was a factor likely to influence the decision to settle or remain in another EU state.

Aware of the difficulties of establishing the EU law argument, counsel for the expatriates included in the case put to the Court of Appeal the additional claim that voting is a common law constitutional right which judges have a duty to protect against statutory restrictions of the sort included in the 2015 Act. The Master of the Rolls dismissed this argument as ‘hopeless’ [para. 50], considering that the Supreme Court’s dicta on common law protections of the franchise in Moohan v Lord Advocate were confined to hypothesising about political abuses by a Parliament intent passing a statute effecting mass disenfranchisements. There was nothing so contrary to principles of democracy in section 2 of the 2015 Act.

The UK Supreme Court

The case, reported as R (on the application of Shindler and another) (Appellants) v Chancellor of the Duchy of Lancaster and another (Respondents) UKSC 2016/0105, reached the Supreme Court last week. The Court held an oral hearing for application for permission to appeal. This failed. Lady Hale expressed sympathy for Shindler and MacLennan, but announced the Court’s decision that, assuming EU law to apply, it is not arguable that the 2015 Act interferes with free movement rights. As the hearing was confined to seeking leave to appeal, the Supreme Court did not engage in review of the Court of Appeal’s stance on Art 50, TEU. Nor did it accept the bold invitation of counsel for the appellants, put during the oral hearing, to declare the 15 year time bar unconstitutional on common law grounds. Aidan O’Neill QC drew the Court’s attention to the government’s plans, announced in the May 2015 Queen’s Speech, to abolish the 15 year time bar, which it has conceded to be arbitrary. The planned Votes for Life Bill has not materialised.

The difficulty for litigants invoking the common law in such cases lies in persuading a court to build on the acknowledged constitutional foundations of the franchise as a political liberty to articulate a concrete – actionable – common law right to vote. The constitutional principle the Supreme Court articulated in Moohan v Lord Advocate, echoed in the Court of Appeal in this case, indicates the potential readiness of the courts to step in to block attempts by Parliament to retract voting rights in some dramatic, discriminatory or blanket way: stripping the franchise from certain racial or religious groups for example, or setting the voting age at 45. There is little trace in the dicta on the nature of the common law right to vote indicating any willingness on the part of the judiciary to deploy the common law to police other sorts of disenfranchisements (of prisoners; of long-term expatriates) which appear less blatantly unacceptable on constitutional grounds. The common law protects a right to vote in the sense that it offers a broader constitutional assurance that judges would oppose political attempts to retreat significantly from the law’s commitment to universal suffrage. Judges are unlikely ever to be persuaded to regard the common law as a sound basis for claims seeking to recalibrate franchise laws that respect in broad terms the constitutional commitment to universal suffrage. This poses a structural obstacle for groups like prisoners and expatriates who find themselves currently situated beyond prevailing political understandings of the limits of the idea of universal suffrage. And a sceptic might think that a common law right to vote that merely tracks the statutory expressions of it which Parliament chooses to offer is not much of a legal right at all.

Another dimension of the issue that this litigation highlights (as does ongoing constitutional litigation in Canada) is the zeal with which constitutional law and politics remain committed to the idea that national citizenship is relevant to the distribution of voting rights. There is another group disenfranchised in the EU referendum: EU citizens lawfully resident in the UK. Though they enjoyed the right to vote in the Scottish referendum, they have no say in this momentous political choice concerning their rights to remain settled in their homes, jobs and lives here. Yet Commonwealth citizens residing here have the right to vote. This group includes those from Malta, who are also EU citizens. Cypriots might find themselves in a similar position. Separately, Irish citizens are in the privileged position of enjoying full UK voting rights, so they too can vote in the referendum by virtue of those laws if not in consequence of their EU citizenship.

Comment

We should consider reforming election law to endorse the principle that lawful residence, not the happenstance of the particular passport we possess, generates the right to vote. And though we may share Lady Hale’s sympathy with the expatriates who feel left out by their disenfranchisement, there are powerful arguments against including any expatriates in the electorate. Voting is not, after all, an act concerned with a person’s emotional attachments to a place they may never return to live in. It is a right related to the stake a person has presently in the polity. We should not allow respect for feelings of Britishness to dictate something as fundamental as the terms of our laws governing the franchise.

Instead of a Votes for Life Bill, how about a Votes for All Lawful Residents Bill, extending the franchise to resident non-citizens (perhaps after a one year settlement period) and retracting it from all non-resident citizens? The claims of the former to the right to vote are at least as strong as those of expatriates. New Zealand has led the way with reforms granting all permanent residents full voting rights. We should follow this model. The franchise ought not to be characterised as a lifelong free gift to privileged groups of people holding favoured passports. Perhaps one day norms will evolve that will condemn our present day willingness to disenfranchise large tracts of the population on the basis of their passport status as we now reject the historic denial of votes to women. Identity, whether tied to gender or nationality, ought not to be used to distribute or deny the right to vote. Those expatriates who have a legal right to vote on June 23rd are the beneficiaries of policies and election laws that seek to universalize suffrage extra-territorially while fencing out of the electorate many deserving domestic residents. This sort of practice is an injustice politics is unlikely to remedy soon, and one our courts are not equipped to cure.