In what sense and to what extent may the United Kingdom expect to regain ‘control’ by leaving the European Union?

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Introduction

The impact on the UK as a sovereign state through membership in the European Union (hereinafter “EU”) is undeniable. Debate concerning the extent, as well as the positive and negative nature of these impacts, has been long running and divisive, resulting in the Referendum of June 2016 and the invocation of Article 50 TEU.[1]When joining the EU, a Member State can identify areas where, firstly, the loss of control, and the extent thereof, is reasonably foreseeable (such as in the case of competences); secondly, areas where the loss of control is anticipated but the extent thereof is not foreseeable (such as in the case of the principle of supremacy); and finally, can expect social debate on a vast range of political topics.

The refrain of ‘taking back control’ from the EU was widespread during the Brexit debate. This article argues that from a legislative standpoint, a regain of control is clearly identifiable. The re-assertion of UK control in the areas of competences and supremacy will be explored, as well as additional ways the UK may expect to re-exert control within these areas. This article further discusses the notion that the freedom to act and exercise ‘control’ is multifaceted and will undoubtedly require compromise.

Part I: Competences

EU Membership is voluntary and required the UK to confer powers to the EU through competences. This section focuses on exclusive and shared competences which the EU institutions exercise by adopting regulations and directives (Art. 288 TFEU).[2]Exclusive competences are defined in the TFEU as areas where “only the Union may legislate and adopt legally binding acts”.[3] Article 3 provides a classification of areas where the EU has exclusive competence, for example; the customs union, establishing competition rules, the common commercial policy,[4] but also in the conclusion of international agreements.[5] The Court of Justice of the European Union (hereinafter CJEU) has reiterated this, declaring certain competences to be of an exclusive nature.[6]

Shared competences allow Member States to exercise their competence only “to the extent that the Union has not exercised its competence”.[7] Although the EU must abide by the principles of subsidiarity and proportionality, when acting in these areas, its actions will prevail over those of the Member States.[8]  Therefore, whilst shared competences seemingly enable the UK to exercise a level of control, in reality this control is limited. Firstly, the control national parliaments can exercise through subsidiarity merely exerts a political pressure on the EU, rather than having immediate, certain effect.[9] Secondly, although the Lisbon Treaty codified competences to an extent (which can be deemed a positive), it expanded shared competences in additional areas (for example, crime prevention).[10] Thus, the Lisbon Treaty limits the UK’s exercise of control further, as underlined by Schutze.[11]

Finally, through the doctrine of ‘implied powers’ the EU can perhaps expand its own competences in areas that are not specifically outlined. The result of this wide scope of power is almost comparable to what a sovereign state would possess and significantly infringes on the UK’s state sovereignty.[12]

Craig argues that the EU having competence over areas cannot be regarded as illegitimate, seeing as Member States “consciously consented to these grants of power”.[13] This does bear truth. His analysis is supported by Art. 5 of the TEU which states that conferral of powers from Member States is the basis for EU competences,[14] and is reinforced in BverfG, where Member States were labeled as “Masters of the Treaties”.[15] However, arguing that the UK retained sovereignty from a macro perspective must be contrasted with the idea of immediate and direct control.

The scope in which the UK has sole unimpeded control is indeed significantly limited. This is supported by Tridimas, who argues there is “hardly an area of regulation where the EU does not have a presence”.[16] Further in the Viking case, it was held that even where Member States have exclusive competence, “when exercising that competence, the Member States must nevertheless comply with Community law”.[17]  As is shown, the extent of control the UK has been unable to exercise while in the EU is severe. Upon exit, this would be remedied in the sense that the UK would regain absolute control over legislating in previously unavailable areas and be able to fully govern its own areas of exclusive competence without interference of EU law. Taking the example of the Customs Union, where the EU has exclusive competence, leaving the EU means the UK will be able to set their own tariffs and negotiate individual trade agreements, illustrating the far-reaching effects regaining control can have for the UK.[18]

The argument that unencumbered control will be regained should however be made cautiously. The extent of the control regained may be limited by Section 3 of the EU Withdrawal Act, which provides for a domestication of a large range of EU laws stemming from competences.[19] Since the UK will continue to trade with the EU, its manufacturers and exporters will continue to be guided by EU Law.  Further, if the UK wishes to remain a global power in the sphere of economics, it must be ready to consider the needs and wishes of its trading partners. As Elliot highlights, domestication of EU law is “sensible in the interests of legal continuity”.[20] However, can the UK be said to have truly regained control when much of EU law will continue to assert itself in domestic legislation despite Brexit. Therefore, although the UK will ultimately regain sole legislative control, UK law will still contain overtones of the EU legal order and future legislation will need to consider the UK’s position in the world and any rational compromises. In this sense, the ideal of legal continuity as espoused by Elliot can in fact be seen to run counter to the objective of ‘taking back control’.

Part II: CJEU and Supremacy

Unlike in competences, where Member States can be expected to understand the areas and extent of control they relinquish by EU membership, the CJEU confronted Member States with a loss of control by virtue of developing the principles of supremacy, direct applicability and direct effect. 

Supremacy of EU law threatens the UK largely through its tie to the principle of direct applicability. Direct applicability ensures that EU treaties and regulations are directly applicable in Member States without the need of any implementing legislation (thus, Parliamentary approval is not required).[21] Prima facie this is a reasonable concept, given the need for uniform application of EU law. However, consideration should be given to the growing scope of EU law as well as the growing number of EU regulations, the future nature of which cannot be known at present but will be directly applicable to the UK nevertheless. Direct applicability mirrors a more monist approach to non-domestic legislation, contrasting with the typically dualist system the UK entertains with international law.

Costa highlights the tie between the principle of supremacy and direct applicability saying direct applicability would be virtually “meaningless” if it could be “called into question” by legislative acts of Member States.[22] Supremacy of EU law was also recognized in Factortame, where the CJEU confirmed domestic laws must be set aside (“disapplied”[23]) if they conflict with EU laws.[24]

Alter labelled the CJEU an “unusually influential”[25] court. This is demonstrated through its development of the principle of supremacy. Alter further states that it was not the Member States’ intention to create a court that would “significantly compromise national sovereignty or national interest.”[26] However, it is put forward that the CJEU has nevertheless changed the legal system “fundamentally”.[27] Reflecting on Alter’s argument, upon exit the UK will not only regain control via supremacy not applying, it will regain independence from the jurisdiction of the CJEU.  Regaining control in this sense is indeed significant, as the CJEU can use its autonomy to “rule against interests”[28] of the UK and perhaps expand its judicial authority beyond the scope originally intended by the Member States. This is supported by the fact that supremacy was never directly incorporated into a Treaty and was merely mentioned in non legally binding Declaration 17.[29]

Etkins argues supremacy merely poses practical limits on the UK parliament’s ability to legislate, meaning economic and diplomatic limits.[30] However, to conclude that these are the only limits the UK suffers from is misleading. Firstly, an implied ‘supremacy clause’[31] inserted into Acts of Parliament suggests virtually any Act is potentially subject to EU supremacy. This can include even the most fundamental doctrines such as constitutions.[32] Additionally, in Simmenthal, it was highlighted that any national court must give effect to Community law over national law, meaning judges from lower ranking courts have the power to set aside national legislation immediately.[33] Not only does this show the extent to which the principle of supremacy infringes upon the UK’s principle of “Parliamentary Sovereignty”[34]but further, may be seen to lower the legitimacy accorded to national legislation, as it can be ‘easily’ and immediately disapplied. The UK would ultimately regain control in the sense of re-attaining the importance and sanctity accorded to national legislation. Post-Brexit, EU law will no longer be supreme and CJEU decisions will not have any weight.[35] Further, where EU law is incorporated into domestic law, it can be repealed or amended as desired.[36]

Secondly, as underlined in Firma Molkerei Zentrale, the reasoning behind the principles of supremacy and direct applicability was the effectiveness of the EU and ensuring that the “fundamental principles of the Treaty”[37] were met. However, as supremacy works for the benefit of EU objectives rather than national objectives, when in conflict and upon withdrawal, the UK would be able to develop its laws to suit national interests that may have previously conflicted with EU legislation. Alternatively, the UK undoubtedly benefited from EU membership and it could be argued that Treaty objectives largely coincided with those of the UK. Nevertheless, the UK would then have the freedom to legislate in accordance with either EU objectives or national ones. It will be able to ‘pick and choose’ which objectives to pursue via its legislation. 

Elliott argues that as the UK parliament “remains capable of amending, overriding or even repealing”[38] the ECA 1972, which ultimately enables EU supremacy and thus the UK has effectively not given up control.[39] Article 12 could also be brought into the discussion, suggesting Member States delegate their sovereignty for the purposes of EU law and ensuring the “good functioning of the Union”.[40] Although these arguments bear a measure of truth, suggesting the UK itself enabled EU law to be supreme and this principle was known to the UK upon entry (as outlined by Lord Bridge in Factortame)[41], the conclusion that, as a result, the UK remained completely in control, would prove problematic. Although the UK willingly gave up some sovereignty upon entry (in order to benefit from the Union), the principle of supremacy as developed by the CJEU, and by virtue of its far reaching scope, can now effectively impact any legislative act of a Member State, up to and including its constitutional law. With little opportunity for the UK to meaningfully resist this power, the question of what constitutes an “acceptable balance of power” between the UK and EU is warranted.[42]  Clearly, upon withdrawal the UK will regain its independence from the CJEU and the principle of supremacy altogether, avoiding direct applicability of future EU treaties and regulations and freedom from implementing directives. Withdrawal will rebuild the UK’s system of legal hierarchy and reestablish the supremacy and importance of domestic law.

Part III: A Further Aspect

Although this essay focuses on legal control and concludes the UK will regain control from a legislative standpoint, a further aspect of control should be elaborated on to provide a well rounded answer. Political factors may ultimately determine the effectiveness of the UK’s newfound control. The EU formed for the reasons of prosperity, stability, and security (outlined in the Preambles of the Treaties).[43] Arguably, the main reason the EU functions as a body to this day is due to the economic success between Member States. In the decades since the UK joined the EU it can be argued that the world has radically changed, with new centres of economic power.  The UK will emerge from the EU as a respected nation but without the collective power it currently enjoys as an EU member. The regain of control could in fact be wholly offset by the loss of the collective power the UK enjoys in the EU. 

As Christopher Clement-Davies points out, the consequence of the loss of EU membership will hinder the UK’s international influence.  Focusing on trade, he argues trade agreements will take “years to negotiate, with both the EU and other countries, and will represent an arduous and painful process”.[44] Though a very specific example, it sheds light on the vast impact Brexit will have on the UK as a State, from both a domestic and international perspective. This is why it would be a mistake to disregard the impact that politics may have on the extent to which the UK truly regains control. The control regained may in reality be significantly limited by the option of its exercise. The UK will have to be measured in the exercise of its regained control in view of the challenges it may face post-exit and in view of retaining its well established position on the European and international stage.

Conclusion

In conclusion, as has been illustrated it is undoubtable that the UK will indeed regain control to a large extent upon exit from the European Union. However,  this position has been tempered by the realities that will affect the UK’s freedom to act or effect change.

From a legislative perspective, regaining control has been taken to mean regaining immediate freedom to act without facing direct limitations imposed on the UK by the EU. In this sense, the UK will regain absolute control in the area of EU competences, where exclusive, shared and implied competences have significantly wide scope. Furthermore, the UK will no longer be bound by the principle of supremacy of EU law, which champions EU objectives and in fact subverts domestic laws and objectives when in conflict.  In addition, the absence of EU law and the disrupting effect of direct applicability on the UK’s legal hierarchy will rebuild and reinforce the importance of domestic law.

Finally, it has been shown that although the UK will regain control in these two vast and highly impactful areas, the practical extent of that control will be limited.  Firstly, addressing the issue of trade, a significant number of UK manufacturers and exporters will continue to work closely with the EU, requiring them to comply with current and future EU regulations. The UK will need to negotiate separate trade agreements without having the significant EU market as an enticement, possibly emboldening trade partners to demand more concessions.  Secondly, the domestication of EU law (as provided through Article 3 of the EU Withdrawal Act)[45] will leave overtones of EU laws in the domestic legal system for years to come, as the sheer amount of time and energy to review, replace, amend or repeal will be significant.


[1] Consolidated Version of the Treaty on the European Union [2012] OJ C 326/01, Art 50.

[2] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/01, Art. 288 (1).

[3] Ibid, Art 2 (1).

[4] Ibid, Art. 3 (1).

[5] Ibid, Art. 3 (2).

[6] Case 22/70, Commission v Council (ERTA) [1971] ECR 263, para 31.

[7] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/01, Art 2 (2).

[8] Consolidated Version of the Treaty on the European Union [2012] OJ C 326/01, Art 5.

[9] Takis Tridimas, ‘Competence after Lisbon: The Elusive Search for Bright Lines’ in Ashiagbor, Countouris and Lianos (eds) The European Union after the Treaty of Lisbon (2012) 47, 54.

[10] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/01, Art. 4.

[11] Robert Schutze, ‘Lisbon and the federal order of competences: a prospective analysis’ (2008) 33(5) ELR 709, 721.

[12] Takis Tridimas, ‘Competence after Lisbon: The Elusive Search for Bright Lines’ in Ashiagbor, Countouris and Lianos (eds) The European Union after the Treaty of Lisbon (2012) 47, 51.

[13] Paul Craig, ‘Competence: Clarity, Conferral, Containment and Consideration’ (2004) 29 ELR 323, 325.

[14] Consolidated Version of the Treaty on the European Union [2012] OJ C 326/01, Art 5.

[15] Bundesverfassungsgericht, decision of 30 June 2009 2 BvE 2/08, para 231.

[16] Takis Tridimas, ‘Competence after Lisbon: The Elusive Search for Bright Lines’ in Ashiagbor, Countouris and Lianos (eds) The European Union after the Treaty of Lisbon (2012) 47, 77.

[17] Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779, para 40.

[18] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/01, Art 3 (1).

[19] European Union (Withdrawal) Act 2018, s. 3.

[20] Mark Elliott, ‘1,000 words / The European Union (Withdrawal) Act 2018’ (Public Law for Everyone, 28 June 2018) <https://publiclawforeveryone.com/2018/06/28/1000-words-the-european-union-withdrawal-act-2018/> accessed 24 November 2019.

[21]Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 3, paras 11-14.

[22] Case 6/64 Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] ECR 585, 584.

[23] Joined Cases C-10/97 to C-22/97 Ministero Delle Finanze v. IN.CO.GE.’90 Srl and Others [1998] ECR I-6307, para 21.

[24] Regina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 2) [1991] 1 AC 603, 644.

[25] Karen Alter, ‘Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice’ (1998) 52 International Organization 121,121.

[26] Ibid, 122.

[27] Ibid, 122.

[28] Ibid, 121.

[29] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/01.

[30] Richard Ekins, ‘Legislative freedom in the United Kingdom’ (2017) 113 LQR 582, 590.

[31] Regina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 2) [1991] 1 AC 603.

[32] Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, para 3.

[33] Case 106/77 Amministrazione delle Finanze v Simmenthal SpA [1978] ECR 629, para 21.

[34]A. V. Dicey, ‘An introduction to the study of the law of the Constitution’ (Macmillan, 8th edn, 1996) 36.

[35] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [80].

[36] Ibid, [80].

[37] Case 28/67 Firma Molkerei-Zentrale Westfalen/Lippe GmbH v. Hauptzollamt Paderborn [1968] ECR 143,152.

[38] Mark Elliott, ‘1,000 words / If EU law is supreme, can Parliament be sovereign?’ (Public Law for Everyone, 21 February 2016) <https://publiclawforeveryone.com/2016/02/21/1000-words-if-european-union-law-is-supreme-can-parliament-be-sovereign/> accessed 24 November 2019.

[39] European Communities Act 1972.

[40] Consolidated Version of the Treaty on the European Union [2012] OJ C 326/01, Art. 12.

[41] Regina v Secretary of State for Transport, Ex parte Factortame Ltd. and Others (No. 2) [1991] 1 AC 603, 658.

[42] Mark Elliott, ‘“Vote leave, take control”? Sovereignty and the Brexit debate’ (Public Law for Everyone, 23 June 2016) <https://publiclawforeveryone.com/2016/06/23/vote-leave-take-control-sovereignty-and-the-brexit-debate/> accessed 24 November 2019.

[43] Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] OJ C 326/01.

[44] Christopher Clement Davies, ‘BREXIT – Plunging over the Cliff-Edge’ (2019) 5 IELR 125, 126.

[45]  European Union (Withdrawal) Act 2018, s. 3.

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