Screen Shot 2014-05-13 at 12.22.21This post is the fourth in a series of six updates for the 2015-16 academic year. The posts in this series are co-written by Mark Elliott and Robert Thomas, the authors of Public Law, published by Oxford University Press. Further information about Public Law can be found here. Our focus in these updates is on six key areas in which the constitution is undergoing, or is likely to undergo, change. We have taken as our reference point the outcome of the 2015 general election, and its likely implications for the future of the British constitution. In this fourth post in the series, we consider the EU Referendum Bill and broader constitutional issues raised by the possibility of the UK’s leaving the EU. 

The whole issue of the UK’s place in the European Union (EU) has been a contentious matter ever since (and, indeed, before) Britain joined. In its election manifesto, the Conservative Party made two key commitments: first, to negotiate a new settlement for Britain in Europe; and, second, to then ask the British people whether they want to stay in the EU on this reformed basis or leave altogether (often known as “Brexit”). It is intended that there will be an in-out referendum on the UK’s membership of the EU by the end of 2017. The Conservative Party’s principal concerns are various. It is said, for instance, that the EU has over-reached itself by being committed to an every closer union; that it is too bureaucratic and undemocratic; and that it unnecessarily interferes too much in people’s daily lives with too much regulation being placed businesses. Another concern has been that the expansion of the EU over recent years has increased the scale of migration from new member states to the UK, which — so it has been argued — has had a real impact upon local communities and the welfare system. It is also said that the EU has changed dramatically since the UK entered the then European Economic Community in 1975, but that the British public has not had the opportunity to have its say upon the terms of EU membership. Finally, there is the concern over sovereignty: should the EU be able to make laws affecting key aspects of public policy which do not need to be approved by the UK Parliament — and which can override laws made by Parliament — or should the ultimate say remain with British law-making institutions?

At the same time, it is important to note that the Conservative Party has long been divided upon the issue of UK membership of the European Union. Differing degrees of Euro-scepticism (and Euro-enthusiasm) have thus been a key feature of internal Conservative politics for some decades. One strand of thought is that the UK should simply leave the EU altogether. By contrast, an alternative view is that the UK benefits considerably from EU membership in terms of trade access to the European single market. These different schools of thought, as well as being represented within the Conservative Party, can be discerned more broadly across political parties, the Liberal Democrats being notably positive about the UK’s membership of the EU, whereas the UK Independent Party (or UKIP) is, as its name suggests, implacably opposed to the UK’s remaining within the EU.

What does the UK Government want?

Following the May 2015 election, the UK Prime Minister, David Cameron MP, toured European capitals to discuss the issue of the terms of continued UK membership with other European heads of government. The Prime Minister has not publicly revealed his negotiating position. However, it has been reported, based on a leaked diplomatic note, that there are four key areas of the European Union which David Cameron is seeking to change:

  • First, reflecting concerns about sovereignty, it said that Cameron is in favour of giving the UK an exemption from the EU’s commitment to “ever closer union”. Related to this position, it is said that the Prime Minister wishes national parliaments to have an enhanced role, by, for example, allowing them to block or place obstacles in the way of EU proposals to which they object.
  • Second, it is said that the Prime Minister favours “a renewed focus on competitiveness and economic growth by freeing up the service sector and promoting trade, including the EU-US transatlantic free trade agreement, which is the subject of lengthy and intense negotiations”.
  • Third, the report of the leaked diplomatic note states that the Prime Minister wishes to place greater emphasis on “fairness between eurozone and non-eurozone members to ensure that countries outside the single currency do not have new rules in the single market imposed on them”.
  • Fourth, the report says, the Prime Minister wishes to impose restrictions on EU migrants claiming benefits. The Conservative Government has repeatedly raised concerns that the free movement of workers is being used by individuals from poorer member states to claim welfare benefits in the UK. The issue of free movement of people is a highly controversial one: free movement of workers is one of the founding principles of the European Union and other member states have indicated that maintaining this principle would be a red-line issue in the discussions, and it remains to be seen whether the Prime Minister will be able to persuade other EU member states to qualify the free-movement principle in this way.

The EU Referendum Bill

The EU Referendum Bill was introduced into Parliament in May 2015 to enable the proposed referendum to be undertaken. No date has been set for the referendum, but the Bill provides that it must take place by 31 December 2017.

Two particular issues have arisen during the Bill’s passage through Parliament. The first issue is the wording of the referendum question. The original referendum question to be asked was: “Should the United Kingdom remain a member of the European Union? Yes/No”. The wording was tested by the Electoral Commission, which concluded that whilst voters understood the question, some campaigners and members of the public felt that the wording was not sufficiently balanced. Consequently, the Electoral Commission proposed the question “Should the United Kingdom remain a member of the European Union or leave the European Union?”, the responses to which would be either “Remain a member of the European Union” or “Leave the European Union”. The Government has accepted the Electoral Commission’s proposal.

The second issue — known as “purdah” — concerns the constraints placed upon government ministers and civil servants in the period immediately before an election or referendum. Purdah is a longstanding convention whereby governments refrain from making any major announcements in the run-up to general elections or other polls to avoid influencing their outcome. Under section 125 of the Political Parties, Elections and Referendums Act 2000, there is a 28-day “purdah” period before any referendum, during which time ministers, government departments and local authorities are banned from publishing any “promotional material” arguing for or against any particular outcome or referring to any of the issues involved in the referendum. However, the rules are not all-encompassing: for instance, they do not prevent ministers from issuing press notices or from responding to specific requests for information from members of the public.

In relation to the EU referendum, the Government’s initial position was that the normal purdah rules should not apply because ministers would have to continue dealing with EU matters during the referendum period. Ministers also said the purdah rules would stop them from being able to defend the national interest in Brussels. By contrast, critics of the Government’s position (who are largely Euro-sceptic Conservative backbench MPs) have argued that not applying the ordinary purdah rules could mean that the pro-EU campaign would benefit from the “machinery of government”. In July 2015, the House of Commons Public Administration and Constitutional Affairs Committee expressed the view that the proposed suspension of the purdah rules was inappropriate on the ground that it would risk comprising the impartiality of the Civil Service and be tantamount to the improper use of the machinery of government. The Bill returned to the House of Commons on the 7th September 2015 for its report stage and third reading. An amendment was successfully tabled to the effect that the purdah rules ought to apply to the referendum. The Government was defeated — meaning that the purdah rules will apply. The Government also conceded an amendment tabled by Bernard Jenkin MP — the chair of the Commons Public Administration and Constitutional Affairs Committee and a prominent Conservative Euro-sceptic — which would prevent a snap referendum from being held by requiring four months’ notice of how the final purdah rules would work.

Our multi-layered constitution

It is worth concluding by noting that the EU referendum, and the possibility of “Brexit”, highlight the way in which the different elements of our increasingly multi-layered constitution relate to one another. It is, for instance, possible to imagine circumstances in which a slim majority of English voters supported the UK’s leaving the EU, whilst a majority of voters elsewhere — for example, in Scotland — voted in favour of the UK’s remaining in the EU. This raises questions about whether today the UK can be regarded — for the purpose of making major constitutional decisions of this nature — as a single bloc, or whether it is necessary to acknowledge that the wishes of different political units within the UK fall to be regarded somewhat separately.

Of course, it is the UK that is a Member State of the EU, and it is only the UK and that can either remain in the EU or leave it. But it is nevertheless necessary to confront the fact of contemporary British political life that if the UK as a whole were to vote to leave and Scotland were to wish to stay, that would very likely trigger a second Scottish independence referendum. The choice before Scottish voters would then be a stark one: to be part of a United Kingdom that would exist outside of the European Union, or to be part of the European Union but not of the United Kingdom. It follows from this that the choice before voters throughout the UK who take part in the EU referendum is equally stark, since they will almost inevitably be shaping not only Britain’s future vis-à-vis the EU, but the future territorial extent of the UK itself.