Brexiteers often argue that a vote to remain in the EU will inevitably drag the UK into further EU integration. But that argument ignores section 4 of the European Union Act 2011 – which is odd, because that section was a major victory for Eurosceptics.
Section 4 is a lengthy provision. With exhaustive thoroughness, it goes through every single way in which a transfer of competence from the UK to the EU could take place, or any diminution in the UK’s ability to veto EU legislation in fields such as tax could occur. In each case it requires that any such change be approved in a referendum.
Section 4 therefore provides a complete answer to concerns that, if it votes to remain, the UK is on an unstoppable train to a superstate. Those interested in its precise mechanics should look at the Explanatory Notes (here, from paragraph 49).
When pressed on the issue, Brexiteers tend to come up with two responses.
The first is that EU law could somehow be interpreted to override the requirement for a referendum. But there is no basis for this fear. Even if you believe that Brussels “Eurocrats” and the European Court of Justice are constantly trying to expand the reach of EU law, it has become clear that our own courts would not accept that EU law could overrule section 4.
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That was underlined last week in the Court of Appeal’s judgment in a case about the rights of UK citizens who have lived abroad for more than 15 years to vote in the referendum. Expat Harry Shindler had argued that EU law required that he have a right to vote. In response, Lord Justice Elias and Lady Justice King pointed out that EU law has effect in the UK only via section 2(1) of the European Communities Act 1972. Furthermore, they referred to a German Constitutional Court judgment in 2010 to maintain that Parliament could not have intended that section to apply so widely as to extend to a referendum on the question of whether EU law should apply at all. In other words, Parliament simply would not have granted competence to the EU over the question of how withdrawal from the EU should be decided.
That analysis would apply equally to the question of a referendum on amendments to the EU Treaties, and would preclude any argument that EU law prevented the UK from holding a referendum.
The second concern is that Parliament might just repeal section 4. That is certainly theoretically possible, since Parliament is sovereign. But Parliament could also, in theory, vote to abolish elections altogether. The Brexit campaign is largely based on a desire to “restore” Parliamentary sovereignty. If Brexiteers don’t trust Parliament to exercise that sovereignty democratically, doesn’t that blow a gaping hole in their case?
Edited by Alan Wheatley
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