EU REFERENDUM SPECIAL: The EU debate: in or out?

Rhodri Thompson QC presents the case for the UK remaining in the EU & Martin Howe QC presents the case for the UK leaving the EU

THE IN ARGUMENT: 

Lawyers - IN for Britain is a group of lawyers who believe the UK’s interests are best served by remaining in the EU. We have prepared a detailed report setting out the best available evidence on the benefits of, common misconceptions about, and alternatives to, EU membership. As our report explains, we believe that an objective assessment delivers a clear answer – a view shared by all four British prime ministers since 1990.

I will be voting for the UK to remain a member state of the EU on the basis that this is in the interests of myself and my family, the UK as a whole, and also the wider European and global community. I am concerned that the campaign for the UK to leave the EU is driven by a combination of political opportunism, nationalism and xenophobia, to which I am strongly opposed.

The decision whether or not to leave the EU should not be confused with the disaster in Syria that has led to a major refugee crisis, or with the rise of Islamic State as a terrorist threat, or with the ongoing problems of the Eurozone. These international crises require an international response. The EU is an important player in such a response. The UK can contribute its particular expertise in financial regulation, international development and counter-terrorism in addressing these crises, but it also has important opt-outs which mean that it is significantly less exposed than other member states.

Global economic power

Contrary to the arguments of Eurosceptics, the EU is a dynamic and powerful institution. It is one of the three global economic powers, able to negotiate on equal terms with the US and China. It is a constitutional model of international cooperation under the rule of law that has been widely copied. For example, in 2014, I participated in a three-day seminar in China to explain the operation of EU competition law to Chinese judges – they were clearly interested in our expertise in EU – not 
UK – law. Although the expansion of the EU to include former Eastern bloc countries has caused significant problems of integration, the EU acted as a magnet for such countries; and membership has greatly improved the lives of their citizens.

The press often carry allegations of excessive EU regulation, but they are rarely balanced by explanation of deregulation within the single market. Harmonisation of national rules promotes investment and enables our major service industries to expand – we take for granted the presence of our financial services, legal and transport operators throughout the EU, but the principles of deregulation, mutual recognition and non-discrimination are core aspects of EU law that are highly beneficial. Likewise, the accounts of immigration from the EU are not balanced by the benefits that free movement confers on our economy (and our Premier League football teams).

Sovereignty and settlement agreement

Two specific legal arguments have been advanced by those campaigning for the UK to leave the EU: alleged loss of sovereignty; and the lack of binding force of the settlement agreement that triggered the referendum. Both of these points are misleading.

The sovereignty argument is an old one – it was rehearsed in 1972 by Enoch Powell. The EU operates as a treaty-based system of law with a court that interprets and applies the law in a way that is binding not only at international level but also in national litigation – these fundamental principles were well understood when the UK joined the European Communities. However, EU law takes effect within the UK by the operation of the European Communities Act 1972 – this was confirmed by s 18 of the European Union Act 2011 and the decision of the Supreme Court in Pham [2015] UKSC 19 at § 76. The UK Parliament retains its sovereignty, and many areas of national life are unaffected by EU law in any event.

The argument as to the status of the settlement is addressed separately in this edition of Counsel by Sir Alan Dashwood QC (see also the recent Report of the European Union Committee of the House of Lords, The EU Referendum and EU Reform, referring to the opinion of the Legal Counsel to the European Council, the aptly named Mr Hubert Legal).. I will only add that any concerns as to the binding nature of the settlement should be balanced by the fact that any vote to leave the EU would render that hard-won settlement non-existent. Renegotiation of the UK’s relationship with the EU would therefore start from the existing treaties. Any alternative deal offered by the remaining member states would be difficult and time-consuming to negotiate and much less beneficial to UK interests than the current modified arrangements. Moreover, the deliberate abandonment of our current ability to influence and enforce EU law would in reality represent a loss rather than a gain in national power. ●

Contributor Rhodri Thompson QC is a silk at Matrix Chambers and a member of Lawyers - IN for Britain

THE OUT ARGUMENT: 

An independent country should be able to live under laws made by people it elects, and can kick out if it doesn’t like what they are doing. Within the EU, we lack that basic democratic right – a right enjoyed by the peoples of more than 100 independent countries round the world, most far smaller than us economically.

EU law extends far beyond anything needed to facilitate trade between ourselves and our Continental neighbours. To take a random example, how on earth did we get into a situation where whether or not Prince Charles’s letters should be published becomes a matter of EU law because they refer to environmental matters?

Nothing in our economic or national interest can possibly justify subjecting ourselves to a system of law which spreads so far beyond trade-related matters. Still less when the provisions of the treaty on free movement and competition ‘far from being an end in themselves, are only means for attaining’ the objectives of economic and political integration, and when they establish ‘a new legal order for the benefit of which the states have limited their sovereign rights, in ever wider fields’: the European Court of Justice’s (ECJ’s) judgment Op 1/92.

Political accountability

This invasive system of law corrodes our democracy. Voters cannot hold to account the politicians responsible for making the laws that apply to them, or even know who actually has power to make or amend laws within the labyrinthine EU legislative process. This is why the EU is so loved by large corporations and other special interest groups who have the money and knowledge to lobby the right parts of the machine to get what they want.

What of the “reform” supposedly achieved by David Cameron? Readers of this magazine have the advantage of being able to understand the actual legal effect (or rather the lack of legal effect) of the summit so-called ‘renegotiation’. We have analysed the 36 pages of Presidency Conclusions in detail on our website and I challenge readers of Counsel, with their legal understanding, to disagree with our conclusions. First, the so-called summit ‘decision’ does not bind the ECJ – but that is really a secondary matter because there is so little substance in the actual text agreed, even if it were binding.

The provisions on ‘ever closer union’ knock down an Aunt Sally: the ECJ has never used that phrase in a crude and direct way as a basis for new or expanded competences. More worryingly, our detailed analysis of the Eurozone governance parts of the deal shows that it does not claw back any of the recent UK defeats in the financial services field.

Even more importantly, there is no effective safeguard against future EU-wide measures which damage the UK financial services industry being imposed by the Eurozone bloc with its inbuilt QMV majority; merely a procedural right for the UK to call an extra meeting in protest which “cannot result in a situation which would amount to allowing a member state a veto”.

Imaginary terrors

The argument of pro-remain ministers that the summit somehow reformed the EU or altered the UK’s relationship with it is therefore totally without substance. Far from achieving the ‘fundamental reform’ which he promised, David Cameron’s initiative has conclusively demonstrated that the EU is non-reformable and that the UK can only change its relationship with it by exercising its right to leave the present treaty structure.

Here we encounter the imaginary terrors which the pro-remain faction within the government are pumping out every day. Ludicrous claims are made about EU exit: young people could no longer enjoy Interrail travel – despite the fact that Interrail includes non-EU member countries, and we joined it before the EEC. This kind of collaboration would not stop. The UK is a massive net importer of goods from the EU, and an overall net importer of goods and services. Germany will want all those BMW cars to continue to flow freely into the UK market: giving us a strong hand to negotiate a trade agreement which maintains free movement of goods and services, and to resist attempted linkages to budget contributions, free movement of persons or political conditions.

But improving the terms of our trading relationship with the dwindling percentage of our export markets represented by the Continental EU is not Brexit’s key attraction. It is the ability to reform our laws without EU interference to reflect the democratic wishes of our people and to make our industries more globally competitive. It is the prospect of powering ahead with our worldwide trade through forging new and renewed relationships, no longer shackled to an increasingly moribund, obstructive and slow-moving EU. I will be voting ‘Leave’ for a new beginning for our country, and a brighter future for us all. ●

Contributor Martin Howe QC is a silk at 8 New Square and chair of Lawyers for Britain

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Rhodri Thompson

Rhodri Thompson is a specialist silk in EU and competition law and related areas of regulatory and public law. He is a member 

Martin Howe QC

Martin Howe QC specialises in EU law and IP. He was a member of the coalition government’s Commission on a Bill of Rights for the UK, and was in one of the first cases in the UK Supreme Court which directly applied the EU Charter of Fundamental Rights.