This edition is brought to you in partnership with Rhodri Williams QC from Henderson Chambers, who specialises in EU law and local government and administrative law, looks at the possible impact of the referendum on local government lawyers and their clients.
How could your practice area be affected by the EU referendum?
The vast majority of my practice concerns the application of EU internal market rules, notably in the fields of the free movement of goods and services and public procurement law. Potentially, the prospect of a Leave vote in an EU referendum, followed by the withdrawal of the UK from the EU and the consequent repeal of the laws which provide for the free movement of goods and services and the detailed rules which govern the procurement by public bodies of such goods and services, is a daunting one.
However, in practice, how likely is this to occur? Even if a majority of the British public were to vote Leave and the UK Government did negotiate its exit from the EU, the likelihood is that the internal market rules would not fundamentally change.
First of all, even the most fervent of the siren voices calling for a Leave vote, still maintain that we should keep our relationship with the EU insofar as the internal market is concerned. We may have little or no further say in what the internal market rules might be, but we would surely remain within the EEA or, at the very least become part of EFTA.
Secondly, the UK has historically been a place in favour of free trade, meaning that the imposition of trade barriers, even if legally possible within the UK’s continuing international treaty obligations, would be highly unlikely. Even in the area of public procurement, where historically (before the early 1990s) the UK had virtually no legislation, there is unlikely to be a rush to abolish the legislative regime which has been built up over the past twenty years or so. The twin goals of transparency in the actions of public bodies and the attainment of best value would make such abolition very unattractive. I assume, therefore, that in practice, little would change.
What issues currently arise in your practice area in relation to the UK’s relationship with Europe?
A whole host of issues involving the free movement of goods and services, the application of the EU public procurement regime and, in particular, the general principles of equality of treatment and non-discrimination, transparency, proportionality and good administration etc. arise every day of the week. In vogue at the moment are the intricate rules surrounding public-public partnerships (application of the so-called Teckal exemption) and the ability of public bodies to enter into public private partnerships.
Are there any areas of EU law you would like to keep or expect the UK to implement?
I consider that the risk of the wholesale repeal by any future British government of the internal market laws to be unlikely. I would certainly like and expect these to be kept as they are now (rather than need to be re-implemented).
Do you think there are any issues that may not receive enough attention or consideration?
I expect UK businesses and their representative organisations to make the case for keeping EU internal market law as it is. Indeed, I expect such businesses to make both the political and economic cases for remaining in the EU by way of a Remain vote in the referendum.
What would a vote to leave the EU mean for clients in your field?
Public sector clients would probably not see wholesale changes in the law applicable to them.
Running and participating in referendum campaigns in the UK
Charles Livingstone, partner, and Douglas Waddell, solicitor, in the public law & regulatory team at Scottish firm Brodies LLP, discuss the legal requirements in running referendum campaigns in the UK, including some valuable insights gained from the Scottish independence referendum.
What are the key legal issues facing the two campaigns on the EU referendum trail?
In advance of the campaign period proper, the key issue will be designation. PPERA 2000 gives the Electoral Commission the power to designate one campaign organisation as the official organisation for each side. However, at present there are organisations competing for that designation for the Leave campaign.
There does not appear to be any such jostling on the Remain side, perhaps because almost all of the major political parties seem set to back Remain and so will run their own separate campaigns.
The criteria used by the Electoral Commission to designate the official campaign organisations are:
- How the applicant’s objectives fit with the referendum outcome it supports
- The level and type of support for the applicant
- How the applicant intends to engage with other campaigners
- The applicant’s organisational capacity to represent those campaigning for the outcome, and
- The applicant’s capacity to deliver their campaign (including its financial probity)
The financial question is important, as the official campaign organisation will not only receive £600,000 in public funding but will also have a much larger expenditure limit of £7m. Unofficial campaigns designated as permitted participants can only spend up to £700,000. The Electoral Commission will want to avoid a situation in which one side of the argument is hampered because the official campaign organisation does not have enough funds to reach its spending limit, while other groups have more money than they are allowed to spend.
In the unlikely event that the Electoral Commission is not satisfied that any of the organisations seeking to be the official campaign fulfils its criteria then it can decline to make a designation, which would obviously have significant adverse implications for that side of the debate.
In addition to the offence of breaching expenditure limits, it is also a criminal offence for a person to knowingly or recklessly make a false declaration of referendum expenditure. In an election, a winning candidate who spent more than the limit could be disqualified, with a by-election resulting. However, an offence committed in the course of a referendum campaign will, of course, not result in the referendum being re-run. If a campaign organisation or permitted participant breaches the expenditure limits, and a criminal offence has been committed, then the responsible person nominated by the organisation or permitted participant (in the case of political parties, the treasurer), or the participant themselves if an individual, will be criminally liable.
The official campaigns, permitted participants and others taking part in the campaign will all need to be aware of the limitations on co-ordinating their activities with others. Under EURA 2015, if one organisation is spending money in pursuit of a ‘common plan’ agreed with another organisation, the expenditure will be counted towards the expenses limit of both parties (unless one of them is a designated campaign, in which case expenditure by a permitted participant, or an unofficial participant who does not exceed their £10,000 limit, will only count towards the campaign’s limit). The aim is to prevent campaigns circumventing the expenditure limits by channelling their spending through different groups.
Has there been any recent case law in this area?
As national and UK-wide referendums are comparatively rare in the UK, there is no meaningful case law relating specifically to the conduct of referendums. However, there is some case law relating to other aspects of referendums, or to other issues that may be generally relevant to the EU referendum:
- Moohan and another v Lord Advocate  UKSC 67,  All ER (D) 186 (Dec) concerned the prohibition on prisoners voting in the Scottish independence referendum. Two Scottish prisoners challenged the Scottish Parliament’s refusal to allow prisoners to vote on the grounds that it violated ECHR, A3P1—the right to free elections. Although the ECtHR has previously ruled that blanket bans on prisoner voting were contrary to the ECHR, the UK Supreme Court decided that these rulings (and ECHR, A3P1) applied solely to legislative elections and so did not apply to referendums.
- R (on the application of Preston) v Lord President of the Council  EWCA Civ 1378,  1 All ER 869 concerned an appeal by a British citizen living abroad who had become ineligible to vote under RPA 1985, having been resident outside the UK for more than 15 years. The appellant had argued that the restriction was contrary to EU law as an impediment to the free movement of people. The Court of Appeal held that the restriction was neither an impediment to free movement nor resulted in such an impediment.
- R (on the application of ProLife Alliance) v British Broadcasting Corp  UKHL 23,  2 All ER 977 concerned the BBC’s refusal to broadcast an election broadcast by the Pro-Life Alliance featuring images of aborted foetuses and abortion techniques, on the basis that the BBC considered that the broadcast was likely to prove offensive to the public. The House of Lords held that, notwithstanding that the broadcast was an election broadcast by a political party and that the protection of freedom of expression under HRA 1998 was engaged, the BBC was also obliged to refrain from broadcasting offensive material by statute, and had acted proportionately in refusing to broadcast. The right to campaign broadcasts is therefore not unlimited.
There were also a couple of cases arising from Parliament’s failure to hold a referendum on the EU Constitution or the subsequent Lisbon Treaty:
- In R v Secretary of State for Foreign and Commonwealth Affairs, ex p Southall  EWCA Civ 1002, the Court of Appeal held that Parliament’s decision not to legislate for a referendum on the EU Constitution was a non-justiciable matter of political judgment.
- In R (on the application of Wheeler) v Office of the Prime Minister  EWHC 1409 (Admin),  All ER (D) 333 (Jun) concerning the failure to hold a referendum on the Lisbon Treaty (despite the government’s promise to hold a referendum), the High Court held that the government’s promise did not give rise to a legitimate expectation of a referendum. Any judgment by the court against the government would in any case interfere in the proceedings of Parliament, contrary to the Bill of Rights and the doctrine of parliamentary sovereignty.
Parliament has, of course, now chosen to legislate for a referendum, but these cases demonstrate the court’s reluctance to interfere with the decisions Parliament makes on such issues.
Are there any lessons that can be learnt from the referendum on Scottish independence?
After the Scottish independence referendum, a blogger complained to the Electoral Commission that the pro-independence organisation ‘Business for Scotland’ had worked to an agreed plan with the SNP. Like EURA 2015, SIRA 2013 regulated organisations’ ability to co-ordinate their campaigning through common plans by counting the expenses incurred under the plan towards each organisation’s total expenditure.
The complaint was prompted by leaked emails from the chief executive of the SNP regarding the structure of Business for Scotland, implying that the SNP had a say in the affairs of the organisation, but the Electoral Commission ultimately found that the two organisations had not in fact been working together under an agreed plan. However, this is an issue the various campaign organisations for the EU referendum will have to carefully consider.
There are also lessons from the Scottish independence referendum about the need to file accurate expenditure returns with the Electoral Commission (all items of expenditure over £200 must be vouched for). A failure to do so can lead to the Electoral Commission imposing a fine, and organisations on both sides of the Scottish independence debate have recently been fined for failing to comply with the rules. In January 2016, the Electoral Commission imposed a £2,000 fine on ‘Better Together’, the official pro-Union campaign, for a failure to supply receipts or vouching in respect of £57,000 worth of expenditure. The Electoral Commission also fined the blogger behind the pro-independence ‘Wings Over Scotland’ blog £750 for failing to file a fully vouched return, and fined ‘Labour for Independence’ £1,500 for failing to lodge any accounts at all. The Communication Workers Union was also fined £500 for incurring expenditure before registering as a permitted participant.
The ‘Better Together’ and ‘Wings Over Scotland’ fines came despite the Electoral Commission accepting that their omissions were not deliberate, illustrating the degree of risk for campaigners (including but certainly not limited to the official campaigns) fail to comply with the reporting rules.
The impact on case law and legislation
Tim Eicke QC, a leading public and EU law advocate at Essex Court Chambers, looks at some of the issues that might arise domestically and internationally with a decision to leave the EU.
What would an exit from the EU mean for domestic law?
Of course, the outcome of the referendum is currently uncertain. Nevertheless, it is important to consider what would happen if the referendum produced a majority Leave vote—what would be the impact on UK domestic law?
As a matter of EU law, the impact of any such Leave vote and the desire to withdraw from the EU thereby expressed are set out in Art 50 TEU. This provides that:
- Once the UK has notified its intention to withdraw from the EU, the EU, acting through the Council, ‘shall negotiate and conclude an agreement…setting out the arrangements for its withdrawal’ with the UK ‘taking account of the framework for its future relationship with the Union’ (Art 50(2)), and
- ‘the Treaties shall cease to apply [to the UK] from the date of entry of the withdrawal agreement or, failing that, two years after the notification…unless the European Council, in agreement with the [UK], unanimously decides to extend this period’ (Art 50(3))
This makes it clear that, as a matter of EU law which is (and will continue to be), at the very least, binding on the UK as a matter of public international law (pacta sunt servanda) there will be no immediate impact on the UK’s domestic law arising out of a Leave vote.
As a matter of UK domestic law, of course, the gateway for EU law into domestic law is ECA 1972. As long as that remains unamended and, as a matter of EU law, the treaties continue to apply to the UK there should also be no immediate change to our domestic law. As Art 50(2) TEU anticipates, of course, the exact changes to, or impact on, UK domestic law, whether in the form of legislation or case law, will depend very heavily on the form and content of the withdrawal agreement and any agreed ‘framework for its future relationship with the Union’. As the political indications are that even if there were a ‘Leave’ vote, it would be desirable to achieve some form of free trade arrangement with the EU:
- The exact impact on or required changes to UK domestic law are currently highly uncertain and will depend on what agreement as to their future relationship the EU and the UK manage to agree, and
- If it takes a form similar to the arrangements currently applied in the relationship between the EU and Norway (through EFTA and the EEA) or Switzerland (through a series of bi-lateral arrangements), the changes to domestic law may well be very limited
What effect would it have on legislation?
On a strict reading of ECA 1972, s 2 which refers to ‘[a]ll such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom’ (for similar language in relation to the devolved administrations see for example SA 1998, s 126(9)) it may, in fact, not be necessary to amend (or repeal) ECA 1972 at all because, of course, once the treaties cease to apply as a matter of EU law, there are no more rights, obligation, remedies etc arising under the treaties (in so far as they concern the UK).
That said, of course, a majority Leave vote is likely to lead to an amendment or repeal of ECA 1972 and/or any other relevant (constitutional) legislation, such as the devolution statutes, all of which expressly render anything done by a devolved legislature or administration which is incompatible with EU law ultra vires.
In so far as any such amendment or repeal seeks to deny EU law direct effect in UK law prior to the date on which, as a matter of EU law, the treaties cease to apply to the UK, this would of course put the UK in breach of its obligations under EU and/or public international law— though it is unclear what legal (as distinct from political) consequences this would have (and/or how an individual/company could enforce any remaining EU rights through the domestic courts). Depending on the form and content of the future relationship between there UK and the EU, it will also, almost inevitably, be necessary to enact legislation to provide a basis for giving effect to that new relationship.
How far specific sectoral legislation, which had its origin in EU law, would be or would need to be amended or repealed will again inevitably depend upon:
- The arrangements for the UK’s future relationship with the Union and the extent to which EU measures continue to apply and have effect in UK law (as they do for example in Norway and, as far as within the scope of the bi-lateral relations, in Switzerland), and
- How far any amendment or repeal is necessary and/or desirable to give effect to post-withdrawal government policy.
What effect would it have on case law?
It is difficult to see that withdrawal would have any significant impact on the case law of the English courts. After all, the Supreme Court, in its judgment in Pham v Secretary of State for the Home Department  UKSC 19,  3 All ER 1015 has already made clear (though obiter) that:
- It is already now a question of domestic law, to be determined by the UK courts, as to how far the UK, by means of ECA 1972, has granted jurisdiction to the EU in a particular field (para ), and
- That, in fact, the concept of ‘proportionality’, traditionally seen as a decisive difference between EU/ECHR law and domestic public law, may, in any event, now also be available as a matter of the common law (at least in ‘some cases’) irrespective of whether EU law applied (but see the important caution issued by Lord Neuberger in Keyu v Secretary of State for Foreign and Commonwealth Affairs  UKSC 69,  3 WLR 1665 at paras – about the ‘potentially profound and far-reaching consequences’ of a complete ‘move from rationality to proportionality’ which would have to be considered—in a future case—by an enlarged composition of the Supreme Court).
There is no reason why this development should be reversed after a withdrawal from the EU (irrespective of the form and content of any future relationship). The only limited impact might be in a situation where there was no freetrade arrangements with the EU and the courts would, therefore, no longer:
- Have to apply or construe EU legislation and/or domestic legislation by reference to any EU obligations, and
- Be able or required to make an order for reference to the CJEU
However, even in an arrangement akin to that enjoyed by Norway, similar obligations as to compatible construction and orders for reference (to the EFTA court) would most likely continue to apply.
How would the government cope with the immediate uncertainty over legislation and case law?
As indicated, it is unclear that there would be any ‘immediate’ legal (as opposed to political) uncertainty following a Leave result in the referendum. The first uncertainty would arise out of the negotiations concerning the future relationship with the EU and that uncertainty is one that will have to be managed primarily at a political level to avoid any adverse impact for example on inward investments and the financial services industry in the City of London. Once those negotiations have been concluded, there should be relatively little uncertainty impacting on legal practice as it should be known at that stage what the new relationship between the UK and the EU is and which rules and legislation continue to apply and which do not.
Are there any areas of the law that would be particularly affected?
It is much too early to identify any particular areas of the law which might be affected, even though, of course, from the political statements made so far, it might be suggested that the free movement of workers and services might be most affected. However, depending on the future relationship with the EU there may be little that can be changed about either of these fundamental freedoms.
One noteworthy potential aspect of withdrawal from the EU, though, is the consequent withdrawal from the EU Charter of Fundamental Rights, in the context of the government’s stated policy of abolishing HRA 1998 (to be the subject of consultation) and (in extremis) possibly withdrawing from the ECHR. A combination of both these policies taken to their extremes, therefore, risks leaving those in the UK without any external (judicial) safeguards for the protection of their human rights.
That said, even in the context of the EEA (if that were the basis of any future relationship between the EU and the UK) or any other association with the EU, the EU is likely to insist on compliance with fundamental human rights and, in the context of the EEA, the EFTA court (like the CJEU) protects ‘fundamental rights guaranteed in the legal order of the EEA Agreement’ (Joined Cases E-3/13 and E-20/13: Olsen at para ) on the basis that they constitute ‘general principles of EEA law’ (para ).
Moohan v Lord Advocate  UKSC 67
The proceedings concerned the right of convicted prisoners to vote in the Scottish independence referendum. The Scottish Independence Referendum (Franchise) Act 2013, an Act of the Scottish Parliament, based the franchise for the referendum on the franchise for local government elections, which was determined by the Representation of the People Act 1983. Section 3(1) of the 1983 Act incapacitated convicted prisoners from voting. The claimants were Scottish prisoners who had been convicted of very serious offences. They sought judicial review of the 2013 Act. The Outer House of the Court of Session refused the claimants' applications and the First Division of the Inner House of the Court of Session refused a reclaiming motion. The claimants appealed.
They submitted that the 2013 Act's blanket disenfranchisement of convicted prisoners in relation to the independence referendum was ultra vires the Scottish Parliament because it: (i) was incompatible with art 3 of Protocol 1 of the European Convention on Human Rights (A3P1); (ii) was incompatible with art 10 of the Convention; (iii) was incompatible with European Union (EU) law, because the outcome of the referendum might affect rights conferred and protected by the legal order of the EU, namely, the rights of EU citizenship; (iv) was outside the competence of the Scottish Parliament because it had been contrary to the United Kingdom's obligations in international law contained in art 25 of the International Covenant on Civil and Political Rights (ICCPR); and (v) was incompatible with the basic democratic principles of the common law constitution, namely, the principle of universal suffrage and the concomitant fundamental right to vote, and contravened the common law requirements of the rule of law. In that regard, the court considered the Scotland Act 1998, s 126(10).
The appeal would be dismissed, per Lord Hodge, Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed.
(1) The requirement in A3P1 that elections were held 'at reasonable intervals' suggested that the drafters had not had referendums in mind. The words in their ordinary meaning did not support a wider view that it had been intended to cover any major political decision which was put to a popular vote, however important that decision might be. That the object and purpose of A3P1 was so limited was confirmed by the consistent case law of the European Commission on Human Rights and the European Court of Human Rights (ECtHR). What A3P1 required was regular periodic elections to the legislature of a contracting party and it also protected the right to vote and stand for election in such elections. 'The legislature' did not include local authorities in the UK. The fact that the referendum was a very important political decision, for both Scotland and the rest of the UK, was not material. Further, art 25 of the ICCPR did not affect the proper interpretation of A3P1 (see , , , , , , ,  of the judgment). The claimants' claim under A3P1, therefore, failed. There was no real support for the claimants' position in the Strasbourg jurisprudence and there was no clear direction of travel in that jurisprudence to extend A3P1 to referendums (see , ,  of the judgment).
(2) Article 10 of the Convention had not conferred any wider right to vote than had been conferred by A3P1. There was nothing in the Strasbourg jurisprudence to suggest that (see , , ,  of the judgment).
(3) The prohibition from voting in the independence referendum had not involved any breach of EU law. First, it had to be borne in mind that a 'yes' vote in the referendum would not itself have determined the citizenship of the claimants. It would not have been the independence referendum, but legislation that followed negotiations between the Scottish and UK Governments and also negotiations between the Scottish Government and the governments of EU Member States, which might have given rise to a withdrawal of EU citizenship. Secondly, applying previous authority, EU law did not incorporate any right to vote, such as that recognised in the ECtHR's case law on the Convention (see -, ,  of the judgment).
(4) The submission that the Scottish Parliament lacked the competence to legislate in breach of art 25 of the ICCPR failed to allow for the fundamental separation of powers in the constitution. The UK Parliament and the Scottish Parliament made laws, the executive branch of the UK Government made international treaties, but, unless those treaties were incorporated into law, they did not affect domestic rights. The drafters of the 1998 Act had clearly borne in mind the distinction between international and domestic obligations. Section 126(10) had excluded from the expression 'international obligations' the obligations to observe and implement EU law and the Convention rights. The latter obligations, as part of domestic law, limited the competence of the Scottish Parliament. However, no such limit was imposed on the Scottish Parliament in relation to the international obligations of the UK, which were not part of the domestic law (see , ,  of the judgment). The challenge based on art 25 of the ICCPR, therefore, failed (see , ,  of the judgment).
(5) Whilst the right to vote was a basic or constitutional right, the common law had not been developed so as to recognise a right of universal and equal suffrage form which any derogation had to be provided by law and had to be proportionate. It was not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determined the democratic franchise. Accordingly, there was no common law right of universal and equal suffrage which could require the Scottish Parliament to extend the franchise in the 1983 Act to encompass convicted prisoners. Further, there was no separate argument that the rule of law encompassed a universal right to vote (see , , , ,  of the judgment).
R (on the application of Preston) v Lord President of the Council  EWCA Civ 1378
The claimant was a British citizen. He had become ineligible to vote in United Kingdom parliamentary elections under s 1(3)(c) of the Representation of the People Act 1985, having been resident outside the UK for more than 15 years. The claimant brought judicial review proceedings challenging the application of the '15 year rule' on the grounds that it was an unjustified and discriminatory restriction on the exercise of the fundamental right to move and reside freely within the European Union (EU) conferred by the Treaty on the Functioning of the European Union. The claimant relied on witness statements from British citizens living overseas who objected to the 15 year rule. In dismissing the application, the Divisional Court held, inter alia, that the claimant had failed to establish that the 15 year rule restricted the right to freedom to move to and reside in other member states in the sense of setting up an obstacle or barrier to its exercise. It found that the effect of the rule was in practice 'too indirect and uncertain' to constitute a restriction of the right. The claimant appealed.
The principal issue which fell to be determined was whether it had been established by evidence and argument that the 15 year rule restricted the right of free movement and residence. The claimant contended, inter alia, that the Divisional Court had not applied the correct legal test to identify a restriction of a fundamental EU right. He submitted that the correct approach was that the right to free movement was restricted, if the national legis-lation was capable of restricting that right, or was liable to deter the exercise of it, by placing at a disadvantage certain nationals of the member state on the sole ground that they had exercised the right of free movement.
The appeal would be dismissed.
The 15 year rule was not in terms an express restriction on free movement. Nor was it in substance a disguised or inherent restriction on free movement. The Divisional Court had been correct to consider the potential effect of the 15 year rule on free movement in practice. Its conclusion that any interference with the right of free movement, in such cases, was 'too indirect and uncertain' to require justification was not contradicted or undermined by the claimant's evidence. It did not follow that every disadvantage of non-residence in the UK was a restriction on or deterrent to free movement. Further, as disenfranchisement was only triggered after the passing of 15 years' residence overseas, a long term view had to be taken when considering whether the prospect of ceasing to be eligible as an overseas voter after the end of 15 years of non-residence in the UK could deter free movement. No legal test, whether formulated in terms of 'probability', or 'likelihood', or 'capability', or 'liability, or 'real possibility' addressed the basic difficulty that what was asserted in the claimant's case was too speculative, remote and indefinite to establish a case. Disenfranchisement by reason of 15 years of non-residence in the UK was both qualitatively and quantitatively different from those more direct, certain and immediate obstacles and barriers to basic day-to-day living that were set up by certain social benefits rules which had been held to amount to restrictions on free movement. The 15 year rule differed from those rules and did not create a restriction that had to be objectively justified under EU law (see , , , ,  of the judgment).