Brexit: A curious case of mistaken identity?

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The United Kingdom is due to withdraw from the European Union in March 2019. But why? There are many possible explanations, however one common argument is that the UK voted to reclaim sovereignty from the EU.

Brexit is a complex and highly emotional issue, with wide ranging impacts for both the UK and the EU27, and presenting risks and opportunities for both. This article seeks neither to support nor oppose Brexit, but merely examines a different theory on the outcome of the referendum.

A question of sovereignty

Reclaiming sovereignty is, in principle, a justifiable argument. In its 45 years of membership of the EU, the UK has indeed sacrificed elements of its sovereignty to the EU. This includes the ability of the UK to freely create laws which bind its citizens. As a Member State, EU Directives and Regulations are regularly imposed on the UK Parliament, which in turn must enact certain laws within a set framework.

This is however a condition of membership of the EU as a supranational body. Every EU Member State has given up the same degree of sovereignty, which is arguably a necessary measure to allow the 28 Member States, acting together as the EU, to coordinate certain policies.

There are however two elements to consider in making this argument of sovereignty.

Firstly, the UK has a curious feature in its constitutional law: that of “parliamentary supremacy”.[i] This is an offshoot of the democratic principle, where the Parliament acts as the elected voice of the people. As this voice may change over time with each successive election, parliamentary supremacy dictates that no UK Parliament can be bound by any previous Parliament, and consequently no Parliament can bind a future Parliament. Indeed, any UK law can be amended or repealed with a simple majority.

This concept is one reason why the UK has no written constitution. In comparison, following National Socialist rule in Germany, certain democratic and liberal values have been entrenched so that they are impossible to remove from the constitution by any future parliament. These are called “Ewigkeitsklausel” or eternity clauses, and would require a revolution and new constitution to repeal.[ii] From the perspective of UK parliamentary supremacy however, this would argued as undemocratic, as the rights of the current electorate have been restricted.

EU membership however means that the UK Parliament has willingly bound itself to the supremacy of the EU, which in effect limits its power to freely enact certain laws.[iii] Despite being legally possible, and perhaps economically beneficial, this does not sit well with the principle of parliamentary supremacy.

The second point is that throughout its membership, the UK has secured very favourable conditions in comparison to other Member States. This includes a significant rebate from the EU budget, as well as exemption from both the Eurozone and Schengen. The UK therefore retains its own currency, monetary policy and border controls.[iv] Furthermore, as a country of approximately 66 million people, the UK is the third largest Member State (after Germany and France), and as such has greater representation in the European Parliament than the 25 other Member States.[v]

For these reasons, despite arguments commonly being made that Brussels wields power over the UK, the UK indeed has an equal, if not better than equal, role in the EU decision making process, which in turn binds all 28 Member States.

This argument of sovereignty is therefore – on a high level at least – not entirely satisfactory. There is however one alternative theory.

The Human Rights Act

In 2001, John Hirst, a British convicted killer, challenged the validity of a UK law which effectively banned prisoners from voting in parliamentary elections.[vi] The High Court however dismissed the case[vii], and Hirst appealed the judgment, taking the case to the European Court of Human Rights (“ECHR“).

In 2005, in Hirst v UK the ECHR ruled that the ban breached the prisoners´ fundamental right to free elections, as protected by Protocol I, Article 3 of the European Convention on Human Rights (“Convention“).[viii] The Convention has been implemented into UK law by the Human Rights Act 1998.[ix]

After the ECHR judgment, the UK Government sought to comply with it and pass legislation to overturn the ban, however Parliament did not support any of the proposals.[x] The issue became highly politicised, with a general outcry that the UK Parliament no longer had sovereignty to independently enact laws, and that the judgments of the UK senior courts could be appealed to a court in France to be heard by a majority of non-UK judges.

In 2015, Prime Minister David Cameron sought to overcome the problem, and promised to repeal the Human Rights Act 1998 and replace it with a UK bill of rights.[xi] This approach would effectively mean that the UK would no longer be subject to the Convention, and that the UK Parliament and courts would no longer be subject to the jurisdiction of the ECHR. By creating its own bill of rights, the UK would be allowed to enact laws as it saw fit.

In 2015 and 2016, the UK Conservative party was experiencing an increasing number of defections of MPs to the EU-critical United Kingdom Independence Party (“UKIP“), and additionally faced a loss of its grassroots supporters.[xii] In response to this as well as a number of other issues, Prime Minister David Cameron announced a referendum, which would allow the British people to decide whether to remain in the EU or to leave, i.e. Brexit.

A continent of Europes

It is at this point we need to consider the word “Europe”. Europe is one of seven continents, extending from Portugal, Spain and France in the West to the Ural mountains in Russia in the East.[xiii] For this reason, the word has seen widespread usage in various contexts.

The European Union is a socio-political union of 28 Member States, first established on 1 January 1958. Its decision-making bodies include the European Commission, the European Council, and the European Parliament.

Rather confusingly, there is the separate Council of Europe. Established on 5 May 1949 and therefore pre-dating the EU, the Council of Europe has 47 member countries. These include the EU Member States, as well as countries such as Russia, Ukraine and Turkey.[xiv] Its aims include the promotion of human rights, democracy, and the rule of law, and to this end, the Council of Europe adopted the Convention in 1950.

The Council of Europe and the EU are frequently confused with one another.[xv] Indeed, they have similar names, similar flags, and both have an international court which has wide-reaching relevance.

In 1959, the ECHR was established in Strasbourg to hear cases concerning potential breaches of human rights by the member countries of the Council of Europe. It was on this basis that Hirst took the UK to the ECHR.

On the other hand, the Court of Justice of the EU (“CJEU“) is the highest court of the EU, based in Luxembourg. Its tasks include ensuring the Member States and the EU bodies themselves comply with EU law. The CJEU is often criticised because some believe it removes sovereignty from Member States´ national courts, however this is misleading. The closest competence it has in this regard, is that it has a monopoly on the interpretation of EU law.[xvi]

The best way to explain this concept is as follows. As EU law seeks to harmonise various social and economic policies across the 28 Member States, it must be applied consistently to be effective. If a court in the UK for example needs to understand what a specific point in EU law means in order to make its judgment, it must refer this question to the CJEU for interpretation. The CJEU will then hear the case and decide on how the specific point in EU law must be interpreted. After this, the UK court will then continue to make its own judgment based on this interpretation. National courts therefore retain their sovereignty in interpreting national law.

From the perspective of the UK Parliament, it is arguable that the Convention and the ECHR have placed greater restrictions on the UK´s law making powers than EU law and the CJEU.[xvii]

It is however noteworthy that after the second World War, UK Prime Minister Winston Churchill proposed the concept of the Council of Europe, and David Maxwell Fyfe, a UK lawyer and lead prosecutor at the Nuremberg trials, prepared the first draft of the Convention.[xviii] The UK therefore took the lead in developing the European standard of human rights.

In light of the general similarity between the institutions of the EU and the Council of Europe, the CJEU and the ECHR, the increasing concern about loss of national sovereignty, as well as the publicity of Hirst v UK, the repeal of the Human Rights Act 1998 and campaigning for Brexit, it is possible that the distinct concepts of withdrawing from the Convention and withdrawing from the EU may have become mixed.

On this point is interesting to note that, despite the Conservatives´ prior energetic campaigning for the UK bill of rights and claims that the Convention restricted UK law making powers, since the announcement of the Brexit referendum and the negotiation proceedings with the EU in 2016, the political will to pursue the repeal of the Human Rights Act 1998 has all but disappeared.

Perhaps it does not require a stretch of the imagination that, at least in respect of the sovereignty issue, the understanding of some may have been that the UK had sought an answer on the withdrawal from the Convention, rather than from the EU.