Subrosa ran a post and to be fair, it’s from the Scottish point of view and not the English. Essentially, it was saying that “upon reflection” it is better not to have an in/out referendum:
“None of the proponents of an “in/out” referendum appears to have given any thought as to how the process of disengagement from the EU would be carried out, if an “out” vote by the electors were achieved but the government in power remained composed of “old style” politicians who were reasonably comfortable with life under the EU and not passionately and totally committed to leaving it.”
Yes we have given it thought, much thought and some of us have even begun campaigns about it, having thought it through and constantly discussed it.
There are two cogent reasons why we need a referendum on our membership of the EU:
1. The people want it;
2. It is efficacious and imperative in the context of strategies for withdrawal from the EU.
N1 The people want it
This reason trumps all and the the rest of this article, from N2 onwards, merely comprises constitutional arguments – vital but in no way more important than N1.
It is possible to gauge the climate of opinion in the UK. None of those polls at the end of the link were in the lead-up to this General Election but they are still quite indicative of the wish of people to have a say and to have it now.
We can throw in the Angus Reid Public Opinion Poll [Methodology: Online interviews with 2,000 British adults, conducted from Nov. 4 to Nov. 6, 2009. Margin of error is 2.2 per cent]:
# If the Conservatives form the next government, there should be a referendum on the Lisbon Treaty 46%
# If the Conservatives form the next government, there should not be a referendum on the Lisbon Treaty 22%
# Not sure 32%
Friday’s New Statesman carries a ComRes poll that will make interesting reading for David Cameron. Three quarters of his prospective parliamentary candidates want to renegotiate the UK’s relationship with Europe “as a matter of priority”. And 91 per cent favour a cap on immigration. Meanwhile, only 28 per cent believe that the next government should legislate to make people behave in a “greener” way.
It’s reasonable to conclude from that that the statistics on people wishing for a referendum on the issue might be just 46% but the stats on those wanting out, once a referendum is put, are considerably higher. so clearly, it comes down to national leader’s] putting it on the agenda and then framing the question for discussion correctly.
This is where the Don’t Put a Referendum people are a bit at cross-purposes with the Do Put a Referendum – we all agree that no national leaders exist, among the big three to raise the issue and carry it through. The Don’t Put a Referendum people see the lack of political resolve in Westminster as an actual reason not to give the referendum.
It’s not a reason in the least – it is an impediment which clearly has to be got round by other means. The Don’tPaR people see it this way:
There will definitely be a general election before there’s a referendum on UK membership of the EU. If you want out, then don’t vote for anyone who wants to keep you in the EU.
But that didn’t happen, did it? The general election was fought on entirely different grounds and the EU Referendum was kept off the page. Toque made mention of Power 2010, the Labour front which invited people to submit issues and though the English issue was being discussed, it never made it to the list. Ditto EU Referendum. It was being prevented from appearing on the list by their editors.
N2 The opportunities are diminishing by the day
In the very act of not putting referenda, precedent has therefore not been set in a national UK context, whilst at the same time, precedent is being set at an alarming rate in an EU context and thus, in a court of law, as precedent is an essential criterion, then any national argument is progressively weakened by failure to ascertain the will of the people, except in the context of a General Election which, as you know, has zero to do with mandate, especially in the context of a hung parliament.
It’s just a passing round of the reins of power from one of the big three to another.
Furthermore, because the Lisbon Treaty is a self-amending text, there is serious reason to suppose that any attempt to unwind amendments made within the provisions of the Lisbon Treaty will be subject to challenge in the courts, unless of course the Referendum was expressed as “notwithstanding the European Communities Act 1972” with an obligation on the judiciary to construe the Referendum Act accordingly.
This “lack of specific provision” has been and still is an enormous impediment to non-referendum supported withdrawal. In short, you can’t give the EU any operating space to delay, tie up, complicate and negotiate, decree and demand compliance, nor can you give them any time to weave their web.
While we are still in the EU, in even its most watered-down form, the EU has legal grounds to argue with it and has the European Court to back that up. When government does oppose and fly in the face of an EU court, e.g. on Prisoner’s Votes, then they are able to do so. Brussels knows full well that the UK government need only say No and it is done.
Yes, they’ll tie up the UK in years of litigation in their own court but they won’t enforce it because if they try sanctions, the UK will simply withhold the money. Brussels knows they can only operate by keeping the UK in a web of precedent which Brussels itself has set and the lily-livered Westminster politicians will interpret “recommendations” as directives and directives as virtual law because they are placed politicians of patronage.
The Referendum Act 1975 allowed for an “in or out” Referendum but since that time, the power of referendum has not been used [except on a spurious issue] and thus the ECA 1972 has been the primary authority, along with EU law which becomes UK Law at between 60-80% of all legislation, depending on the authority you quote.
The EU has a vested interest in a referendum not being put and it is adopted as its own strategy by the Don’tPaR brigade:
There is another argument against a referendum. For us to get one, MPs would first have to vote to grant us one, as they did in 1975 (and for AV). If they’re prepared to do that, they might as well just vote to repeal the European Communities Act; they know that that’s the real wish of most of those calling for a poll. But they are prepared to do neither. The EU is, to invert Abe Lincoln, “government of the politicians, by the politicians, for the politicians”, whatever their nationality or orientation.
None of that is being argued with – it’s the current situation, yes. However, to argue that the people should not have what they legitimately demand, on the grounds that the government won’t give them what they legitimately demand, is a most convoluted piece of sophistry, particularly conceding that the polls, on the whole, give an “out of the EU” return.
It is imperative to continue the call for a referendum because it is one of only two effective weapons the EU fears, the other being unilateral UK action. As David Davis noted below, on November 4th, 2009:
Referendums terrify the European Commission and the political elites who run Europe. They are clear statements of the popular will. They force issues to be stated in clear and unambiguous terms. They are impossible to ignore.
That is why the European reaction to referendums is to make concessions. Look at the history. After Ireland’s first rejection of the Lisbon Treaty, the European Council conceded legally binding protocols pledging to keep the treaty out of taxation policy, family and social issues (such as the right to life, abortion and euthanasia), and Ireland’s traditional military neutrality.
Denmark has obtained similar opt-outs after a referendum, and the defeat in the French and Dutch referendums led to the rewrite of the original European Constitution.
So referendums are incredibly powerful weapons. What is more, they are necessary if a single nation is going to achieve any material change.
The Europeans are past masters at the permanent negotiation that makes up the federal project. They know all the tricks of isolation, pressure, delay, coalition, vague language, and institutional and judicial expansion.
They are entirely capable of repackaging rejected ideas over and over until they get them accepted. Lisbon is a good example of this. Indeed they are capable of retabling a rejected proposal five or ten years later, after the relevant national governments have changed.
The DPaR people’s argument against what DD has just said here is that DD himself has been inconsistent and has a bad track record. Who cares? We’re looking at the argument, not at the man.
We are not operating on a level playing field with the EU but are engaging with an enemy which is hellbent on subsuming powers for itself, for purposes outside the scope of this article to go into and they are past masters at tying up, cheating and confusing the issues, as has been stated.
“Although no Parliament at Westminster can bind its successor, the European Union operates differently and has no reverse gear. The United Kingdom is propelled into ever deeper integration against the wishes of its people. Leaving is the only way to stop this process.”
The steady erosion of sovereignty and the bankrupting of UKplc
Researchers sifted through more than 2,000 of the UK government’s impact assessments for regulatory proposals and found that 72 per cent of the cost of regulation over the last ten years is EU-derived.
EU legislation does bind UK governments in practical ways. Take equality legislation, for example:
The EU has instructed the UK to end exemptions to equality laws that allow religious employers to discriminate on the grounds of sexual orientation. This came via a “reasoned opinion” sent to the UK on Friday for “incorrectly implementing” EU rules prohibiting discrimination based on religion or belief, disability, age or sexual orientation in employment or occupation.
The EU process for subsuming powers is like a ratchet block, a one-way pulley – it allows movement one way but blocks it the other. The only solution is to unshackle the block and put a new one in. Negotiating with a ratchet block is wishful, naive madness.
The legal position
Let’s start with the noted Lord Pearson of Rannoch opinion:
Article 5(2) of the Treaty on European Union (consolidated version following the Treaty of Lisbon, which entered into force on 1 December 2009):
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
A more descriptive analysis of the principle can be found in Protocol 30 to the European Community Treaty. Against this is the new definition of National Parliaments:
National parliaments – The glossary is being updated given the recent signing of the Treaty of Lisbon .
The Conference of European Community Affairs Committees (COSAC), consisting of representatives from relevant committees of the national parliaments and Members of the European Parliament, has met every six months since 1989.
With the entry into force of the Maastricht Treaty in 1993, the European Union acquired competence in areas which had traditionally been a national preserve, such as justice and home affairs. For this reason, the importance of exchanges between national parliaments and the European Parliament was underlined in a declaration on the role of national parliaments in the European Union.
This definition is in the context of provisions of these treaties:
* the ECSC Treaty of 1951 (Treaty of Paris)
* the EEC Treaty of 1957 (Treaty of Rome, Treaty on the Functioning of the European Union)
* the EURATOM Treaty of 1957 (Treaty of Rome)
* the Merger Treaty of 1965
* the Acts of Accession of the United Kingdom, Ireland and Denmark (1972)
* the Budgetary Treaty of 1970
* the Budgetary Treaty of 1975
* the Act of Accession of Greece (1979)
* the Acts of Accession of Spain and Portugal (1985)
* the Single European Act of 1986
* the Treaty of Maastricht of 1992 (Treaty on European Union)
* the Acts of Accession of Austria, Sweden and Finland (1994)
* the Treaty of Amsterdam of 1997
* the Treaty of Nice of 2001
* the Treaty of Accession 2003
* the Treaty of Accession 2005
* the Treaty of Lisbon of 2007
It has been ruled many times by the European Court of Justice that EC (European Community-first pillar) law is superior to national laws. Where a conflict arises between EC law and the law of a Member State, EC law takes precedence, so that the law of a Member State must be disapplied. This doctrine, known as the supremacy of EC law, emerged from the European Court of Justice in Costa v ENEL.
Article 1-1.6: Establishes the EU as a country with a legal personality and gives it the right to negotiate international treaties.
Article 17.1: If the EU decides that the Constitution does not give it the powers to do what it wants, it may take the appropriate measures to give itself the powers that it requires.
Article III 62: European law shall lay down measures for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation.
A separate protocol says that if national Parliaments representing one third of the votes object to a proposal of the Commission, the Commission shall review its proposal. After such a review the Commission may decide to maintain, amend or withdraw its proposal.
The Lord Chancellor’s opinion:
The Lord Chancellor continued, “All EU regulations and directives have to be read in the context of the European Communities Act, which expressly provides that all EU statutes should be construed and have effect subject to the provisions in the 1972 Act giving Community law primacy in our legal system.”
With reference to the Factortame case, which rested upon the 1988 Merchant Shipping Act, the Lord Chancellor pointed out, “That was enough, in the absence of a clear provision in the 1988 Act overriding the 1972 Act, to reverse the rule that, in a conflict between two Acts of Parliament, the latter takes precedence. Accordingly the English court correctly proceeded on the basis that Parliament did not intend to override Community law in passing the Merchant Shipping Act. It is open to Parliament expressly to override the 1972 Act and, if it did so, the courts would be bound to give effect to this, even though that might be a breach of obligations under the Community treaties.”
Exactly the same legality applies to the 1985 Weights and Measures Act. If it had included a provision deliberately over-riding any EU law to the contrary then the traders would have won. For example, if it had included a phrase to the effect “regardless of any provision of community law to the contrary and notwithstanding the provisions of the European Communities Act 1972″ then the Appeal would have been upheld.
At least this case has made it crystal clear that EU law, including all the regulations and directives which come into force, are automatically the supreme law of the land, courtesy of the extraordinary 1972 European Communities Act.
Lord Denning in 1979:
“If the time should come when Parliament deliberately passes an Act with the intention of repudiating the Treaty, or any provision in it, or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. I do not however envisage any such situation… Unless there is such an intentional and express repudiation of the Treaty, it is our duty to give priority to the Treaty.”
The European Union Amendment Act, in accordance with our constitutional requirements as enacted, adds the Treaty to the list of treaties under Section 1 of the European Communities Act 1972, clearly recognising its continued existence. This Act provides that the Treaty becomes enforceable United Kingdom law. The actual provisions of the Treaty, however obscure, become the law of the United Kingdom through Section 2(1) ECA 1972 and, under Section 3 ECA 1972, fall to be enforced by the courts of the United Kingdom.
All the judgements made by our courts in respect of the individual treaties, and bearing in mind that Lisbon consolidates them all, refer to the provisions of the Treaty in question – thus no one has ever suggested before that the Lisbon Treaty or any other European treaty no longer exists.
The problem has arisen that the textbook doctrine of the supremacy of Parliament has been severely eroded in practice since 1972, particularly since the Maastricht Treaty, which created European government, and now the Lisbon Treaty:
An effective Sovereignty Act, which is to be welcomed, would deal with what is described as “a danger that over time” that our courts will come to regard ultimate authority as resting with the EU. This is because in the context of the Lisbon Treaty the declaration of primacy is included as a guide to our courts, as with other member states, as to where the sovereignty actually lies and not only over our laws but also over our constitution.
Declaration 17 restates the case law referred to below, but also as further guidance of the courts (otherwise, it would not be there) states that “The Conference has also decided to attach as an annex to this final Act the opinion of the Council Legal Service of the primacy of EC law (11197/07(JUR260).”
This emphasises that “it follows that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
As to amending the European Communities Act 1972, a Sovereignty Bill drafted properly would include prohibiting the transfer of power (including by reference to existing laws and assertions of EU law overriding our constitution) to the EU without a Referendum. In any case, there is already a prohibition, under the European Elections Act 1978, to increase the powers of the European Parliament without the specific endorsement of the UK Parliament.
The Human Rights Act 1998 made the European Convention on Human Rights (ECHR) part of the UK national law. Prior to this the courts could only take the ECHR into account in domestic proceedings in very limited circumstances.
The Act provides only a weak incorporation of the Convention into UK law. Section 19 of the Act tells us that all future legislation must contain a declaration of compatibility with the ECHR, thereby showing that the legislation is not intended to contravene the Convention, and giving effect to EC law.
Section 3 of the Act says that so far as it is possible all primary and subordinate legislation should be read and given effect in a way which is compatible with the ECHR. This applies to both future and past legislation. However, if it is not possible to interpret legislation in line with the Convention then the UK law prevails.
By section 6 of the Act it is unlawful for a public authority to act in a manner contrary to the Convention.
There is a whole line of ECJ cases, which goes back to Costa, Van Gend, Handelsgesellschaft and Simmenthal, all of which contain the most explicit assertions by the ECJ which under Sections 2 and 3 of the European Communities Act 1972 have lacked only the endorsement of primacy since the treaties commenced.
What the European Court has asserted has now been endorsed in Declaration 17 in its application to the consolidating Lisbon Treaty and is therefore now open to interpretation and judgement by our own courts as against our own Parliamentary sovereignty.
Take the Coal and Steel Industry:
Since the establishment of the European Coal and Steel Community under the Treaty of Paris in 1951, no member state has ever left the European Union or its predecessor bodies.
To date, there has been no formal mechanism for a member state to do so. Nonetheless, in 1982, Greenland – an overseas territory of Denmark and not a member state as such – did leave the EU, following massive opposition to the common fisheries policy and growing demands for home rule.
However, the draft treaty establishing a constitution for Europe, published in June 2003 by the convention on the future of Europe, does make explicit provision for how a member state could go about leaving the EU.
Article 59 says a member state must first inform the European council, which will produce guidelines under which the “Union” (the EU Commission) will negotiate a withdrawal agreement. This agreement is then subject to approval by the European parliament and the council of ministers.
The EU relies on the concept of Implied Repeal:
In 1934, the Court of Appeal held in Ellen Street Estates Ltd. v. Minister of Health  that if an Act of Parliament “appeared inconsistent with previous legislation, the previous legislation must give way” (Loveland, p. 34). The effect of this was that legal statutes were to be impliedly repealed once new statutes that came into existence contradicted previous ones.
In addition, such a decision was not inconsistent with an orthodox understanding of Parliamentary Sovereignty, as it allowed subsequent Parliaments to repeal (absolutely) the Acts of their predecessors whenever and wherever they saw fit.
Thoburn v Sunderland CC:
In Thoburn v. Sunderland City Council , Laws L.J. held that constitutional statutes fall within a special category that is immune to implied repeal.
Laws L.J.’s judgement, that constitutional statutes fall in a special category and can only be repealed using express language, provisions or wording that outline such a desire, is completely oblivious to the political reality that dictates that Parliament can easily circumvent this ineffective and judge-imposed restriction.
The United Kingdom passed the European Communities Act (henceforth the ECA) in 1972, thereby making possible the legal entry into the European Community, as it was then known. The most relevant consequence of this act, inter alia, was the subsequent perceived transfer of sovereignty from London to Brussels; it should however be noted that the United Kingdom has only given up sovereignty in those legal areas that are covered by European Community Treaties.
However, H.W.R. Wade argues that with the passing of the ECA, the parliament of 1972 bound future parliaments and that this was nothing but revolutionary (Wade, pg. 3).
The legal doctrine of Parliamentary Sovereignty, as proposed by the Oxford professor A V Dicey, normatively stipulates that past parliaments cannot bind futures; that predecessors cannot negotiate on behalf of their successors.
Dicey’s theory can be further broken down into two main components, namely the positive and negative branches of Parliamentary Sovereignty. The former branch or the “positive limb” asserts that Parliament is capable of making (read: positing) or unmaking any law that it wishes, as no other sovereign body exists to legally prevent it from doing so.
In addition, the “negative limb” of Dicey’s theory adds that the legality of Acts of Parliament cannot be challenged in any legal court” (Loveland, pg. 24). Furthermore, while a second theory of Parliamentary Sovereignty is said to exist in the United Kingdom, namely that Parliament is “self-embracing” and can subsequently bind itself and future parliaments, constitutional commentators like Ian Loveland have argued that such a theory “has had no political effect in this country” (Loveland, pg. 37).
That’s as maybe but it does not take into account the moves to eliminate the concept of the UK itself [see below]. Not only that but in order for a Sovereignty Act to work, in the context of the plethora of other legislation, there must be three preconditions:
1. There must still be a UK in practical terms;
2. There must be a specific overriding clause inserted in the bill. Governments in the UK have consistently failed to do that;
3. There must be a set of written laws, e.g. a constitution, to provide an updated national directive on these matters of sovereignty.
Al of those are in a negative state at this time and do not look likely to be resolved for the better.
It is precisely because the constitutional area is so contradictory and because of the ability of the EU to utilize this to further entangle the question of withdrawal that a referendum would be a simple expedient which would carry weight in a UK context – it’s a different thing ignoring a UK result to ignoring an Irish result.
It has already been shown that parliamentary resolve does, in practical terms [e.g. on Prisoner’s Votes], result in the government acting in line with the people’s wishes and the EU, plus its concentric other forms – the CoE, ECHR etc. [and please don’t say it is a separate body – it is not, in terms of independence of policy followed] fears two main things:
1. The UK parliament acting on its own volition and
2. A referendum on membership.
With the economic climate, with increasing numbers questioning government expenditure on “unnecessaries”, with a concerted campaign on EU wastage, not only from the Express but taken up by combining other issues with it, e.g. immigration, there is a real case for a referendum to be put and it must not dilly-dally about but be a straight in/out. It’s the only thing the people will understand.
The Don’tPaR people will say that it equally validates a simple repudiation of the ECA. Yes it does, no argument there but that is done without the perceived legitimacy of the people. It is precisely the arguments here about the Lib Dems etc. and the disgust people feel for the politicians today which show that mere repudiation of the ECA is not sufficient. It’s gone beyond that now.
It needs an overwhelming legitimacy and the only legitimacy is by a referendum of the people. This has come down to an argument between strategy and legitimacy plus one other factor – the increased stranglehold of the EU on the reins of this country – you’ve just seen the Brussels attempt to take over financial regulation, on the grounds that the UK is turning into another PIIGS country.
One of many issues
It’s naive to think that the EU issue is front and square in the average person’s mind out there – it’s not. It’s been kept off the front page by all strategies. This is not to say the feeling is not latent in people’s minds, not just in the UK and the EU must fear that some other issue, e.g. a forcing of the Prisoners’ Votes issue in October or perhaps the coming collapse of the PIIGS, will precipitate a run of feeling within this country [perhaps even augmented by the feeling over Blatter and FIFA] and there is no controlling in which direction it will go.
There is good reason to think the most immediate target will be immigration. Immigration then brings into sharp relief the issue of EU membership. That’s the point when the referendum should be put, forced by popular outcry in a disintegrating economic and political situation.
And put it must be, to provide the much needed precedent against with later governments cannot legitimately go.
Perhaps Referism is the way to make them give us what is ours to have.