Departure from Europe throws up yet another fundamental constitutional questionby George Peretz / October 11, 2018 / Leave a comment
Article 3 of the First Protocol to the European Convention on Human Rights (ECHR) proclaims that “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” In other words, it proclaims the most fundamental aspect of any representative democracy—the right to vote for those who make your laws.
In 1994, Denise Matthews—a UK national living in Gibraltar—asked for the right to vote in elections to the European Parliament. She was refused: UK legislation said that only UK nationals resident (or resident within the previous 15 years) in Great Britain and Northern Ireland had the right to vote for the UK’s MEPs.
But Matthews didn’t take “no” for an answer. She took her complaint to the European Court of Human Rights in Strasbourg (ECtHR), which rules on alleged breaches of the ECHR. She pointed out that (unlike, for example, the Channel Islands) Gibraltar is fully subject to EU law. So, she said, the denial of a vote to Gibraltarians breached their rights under Article 3 of the First Protocol. The EU parliament was their legislature. It made their laws too. But they had no right to vote for its members. (For simplicity I am going to refer to the EU, though, at the time, it was the European Communities.)
Matthews won her case—and forced the UK government to give Gibraltarians the right to vote for UK MEPs. But her victory also, now, raises an important legal question about the withdrawal agreement that the UK may well end up signing with the EU: is it consistent with Article 3 of the First Protocol?
Since the UK’s membership of the ECHR is entirely independent of its EU membership, the UK will remain bound by the ECHR after Brexit, and subject to the rulings of the ECtHR, which is separate from the Court of Justice of the EU in Luxembourg (ECJ).
The provision of the draft withdrawal agreement that deals with the post-Brexit transition lays down this fundamental rule: “Union law shall be applicable to and in the United Kingdom during the transition period.” In other words, EU law will apply in the UK during the transition period more or less exactly as it does now. In particular, any new EU regulation passed by the European Parliament and Council will have direct effect in—i.e. will automatically become law in—the UK. I say “more or less” because there are some exceptions. And by far the most important of those exceptions is that “Article 11(4) TEU, Articles 20(2)(b), 22 and the first paragraph of Article 24 TFEU, and Articles 39 and 40 of the Charter of Fundamental Rights of the European Union” will no longer apply to the UK. When you look those provisions up, you find that they are the provisions that give EU member states the right to vote in the Council of Ministers and the voters of EU member states representation in the European Parliament.
Put together, the result is that the UK becomes directly and immediately subject to EU law and to new EU law made during the transition period, but its voters have no representation in the EU Parliament (and it has no judge on the ECJ and its government has no vote in the Council of Ministers).
Let’s go back to the Matthews case. The UK tried to defend its position by arguing that Article 3 did not apply to the right to vote for a supranational legislature. But the ECtHR was having none of it. It pointed out that EU law has precedence over domestic law—in Gibraltar as well as the rest of the UK. The UK also pointed out that the exclusion of Gibraltar was based on a provision of the EU legal instruments that set up the system for elections to the EU Parliament. But the ECtHR was having none of that objection either: the UK had agreed the instruments at issue and—if those instruments involved a breach of the ECHR—was answerable for the consequences. (After Matthews was decided, the UK secured, after delicate negotiations with Spain, an amendment to the EU rules so as to allow it to give Gibraltarians a vote.)
The parallel with the UK during the transition period seems very close. The UK will continue to be bound by EU law. But UK voters will have no right to vote for an MEP. (It’s worth noting at this point that, though they are often said to be “rule takers” from the EU, the position in the EEA member states is quite different from this: EEA law does not have direct effect but is brought into effect via national legal measures. So this problem does not arise.)
Of course, the transition period is supposed only to be temporary—20 months to the end of 2020. But there is a fairly universal consensus (outside some pro-hard Brexit knitting circles) that that period is not remotely long enough and will—at least—need to include a mechanism for its own extension. That consensus is based on: (1) the time—seven years—taken to negotiate the Canada/EU agreement; (2) the need for the UK/EU agreement (even on a “Canada” model) to include “+++” elements relating to services, security, data protection and so on (where the UK will both need to work out what it wants, a process that has to date not run entirely smoothly, and seek to persuade the EU to give it what it wants); and (3) the need for any such agreement to be ratified by all EU member states, not of all of which are reliably above a bit of brinkmanship in order to achieve their own collateral objectives.
“Twenty months is a long time in politics: who knows what controversial law the EU will need to pass in that period?”
More fundamentally, the observation that “this is just temporary” doesn’t really do justice to the fundamental nature of the principle at stake: though the phrase “Article 3 of Protocol 1” does not, perhaps, set hearts ablaze or start revolutions, what it represents—the right to vote for those who make the laws that govern you and the principle of “no taxation without representation”—certainly does. And even 20 months is a long time in politics: who knows what controversial law the EU will need to pass in that period to deal with some as yet unimaginable crisis, ranging from a trade war with the US to an outbreak of foot and mouth in the UK?
But, it may be asked, what’s the practical importance of the point? The withdrawal agreement will be brought into UK law by an Act of Parliament. And parliament can pass legislation that breaches the ECHR if it wants to: all the courts can do, under the Human Rights Act 1998, is to tell it that that is what it has done, or (if an action is brought for a declaration before the implementing legislation is passed) that that is what it is going to do.
Those are all fair points. But the UK courts could be asked—probably in the period between the government’s decision to sign the agreement and the decision of parliament to approve it and to pass the necessary implementing legislation—to rule on whether there was infringement of Article 3 of Protocol 1. And if they decided that they were not compatible, it would at least be embarrassing for the government if it was forced, when fulfilling its general duty to state whether its proposed legislation complies with the ECHR, to state that it does not comply. And non-compliance with the ECHR is a factor that would, one hopes, weigh with MPs and peers, and the public at large, when deciding whether the withdrawal agreement and implementing legislation were acceptable.
There is also a further issue on the EU side. The ECJ—the ultimate arbiter of EU law—has always said that, although the EU is not itself party to the ECHR or bound by ECtHR case law, the ECHR expresses fundamental principles that are also found in the EU Treaties. Indeed, the EU Charter of Fundamental Rights states that it is “reaffirming” rights that result from, among other instruments, the ECHR. The EU has very wide powers to enter into agreements with a departing state under Article 50: but it must be open to doubt whether even those very wide powers extend to entering an agreement that infringes the ECHR rights of citizens of that state, all of whom were EU citizens at the point the agreement was entered into—particularly a right as important and fundamental as this.
So even if the UK, which notoriously fails to provide for any significant constitutional restriction on the powers of its parliament, could lawfully ratify the withdrawal agreement in those circumstances, there must be some doubt as to whether the EU institutions could lawfully do so, at least without an amendment to the EU Treaties. As a result, a UK court might be invited not only to rule on the compatibility of the withdrawal agreement with Article 3 of Protocol 1, but also (if it thinks it is incompatible) to make a reference to the Court of Justice of the question whether the EU institutions have power to enter into such an agreement.
None of this is correct beyond the possibility of argument. But it is another example of where the Brexit process throws up important constitutional issues, few of which are as fundamental to a representative democracy as the right to vote for those who make our laws. And one of the paradoxes here is that although the principle of democratic self-government lay at the heart of the pro-Brexit cause, it is also the modern legal incarnation of that principle that throws into question the government’s attempt to deliver Brexit, at least in its current form.