By Oliver Garner
Brexit has been a personal matter for many British and European academics. In the last week, however, Brexit became even more personal for UK researchers based at the European University Institute in Florence. The UK government published its draft European University Institute (EU Exit) Regulations 2019 on 7th February. This is a Statutory Instrument promulgated under the executive power conferred by the ‘Henry VIII clause’ of section 8(1) of the European Union (Withdrawal) Act 2018. The manner in which the UK’s withdrawal from the Convention establishing a European University Institute has been communicated seems to vindicate concerns expressed during the reading of the Withdrawal Bill. Grievances were expressed that the provision of wide-ranging executive power would undermine the quality of decision-making. This seems to be borne out by the Regulations, which explicitly confirm no impact assessment has occurred. This post will consider the serious legal and political concerns regarding the withdrawal from the Convention. The Regulations may be predicated upon a misinterpretation of international treaty law. This seems to have arisen from the idiosyncratic way in which the Convention is treated in UK domestic law. The post will conclude with some reflections on the implications of such a retreat from European co-operations outside the auspices of the EU institutions.
Automatic Withdrawal from the Convention establishing a European University Institute?
The purpose of the Regulations delineated in section 2 is to terminate the recognition in domestic law of rights, liabilities, obligations, restrictions, remedies and procedures that are derived from the Convention setting up the European University Institute and continue by virtue of section 4(1) of the EU(W)A 2018. Consequently, it is claimed that the exercise of this power under section 8(1) of the Act is justified in order to address failures of retained EU law to operate effectively. The verdict that this retained EU law will not operate effectively is predicated upon the assumption that the UK will, from exit day, no longer be a Contracting State to the Convention Setting up a European University Institute. This interpretation is highly contestable. The explanatory memorandum to the Regulations argues that ‘When the UK leaves the EU, the UK will cease to be a party to the EUIC as it will no longer be a member state’. Article 1 of the EUIC states that the Member States jointly establish the Institute and Article 32 details that any Member State may accede to the Convention. Therefore being a Member State of the European Union is a condition sine qua non for acceding to the Convention. However, the text is silent on whether being a Member State is also a condition for remaining a Contracting Party. Loose parallels may be drawn to the argument in the ‘Amsterdam case’ that although nationality of a Member State is the predicative condition for the acquisition of EU citizenship this does not necessarily mean that loss of Member Statehood automatically leads to the loss of EU citizenship.
Unlike Article 50 of the Treaty on European Union, the EUIC does not have a specific withdrawal clause. Therefore, the residual rules contained within the Vienna Convention on the Law of Treaties apply. Article 54 states that in the absence of such an explicit withdrawal provision in conformity with the treaty, withdrawal may occur at any time by the consent of all of the parties. In the context of the EUIC it has been suggested that this would need to occur in accordance with the revision procedure of Article 33. If the other state Parties did not provide the necessary consent to enable the UK to withdraw, the government could foreseeably claim that a ‘fundamental change of circumstances’ has occurred in order to justify a unilateral withdrawal in accordance with Article 62 VCLT. The argument would be that the withdrawal from the EU constitutes such a fundamental change: the argument would follow that under paragraph (a) this constituted an essential basis of the consent of the parties to be bound by the treaties, and under paragraph (b) the UK no longer being a Member State would radically transform the extent of obligations still to be performed under the treaty (such as providing for the admission of UK citizens and funding grants). Regardless of the legal argumentation under the VCLT, the crucial point is that in international law the UK’s withdrawal from the EUIC would not occur automatically upon withdrawal from the EU. Instead the government would be compelled to pursue this as an active policy.
The domestic law implications
I would suggest that the UK government’s misinterpretation of the operation of the Convention establishing a European University Institute is rooted in the idiosyncratic way in which the obligations under the treaty were incorporated in UK domestic law. The Regulations outline that the European Communities (Definition of Treaties) Order 1975 designated the Convention as an “EU Treaty” as defined in section 1 of the European Communities Act 1972. This is the statutory loop which means that the EUIC was caught by the hook of the wholesale incorporation of ‘retained EU law’ executed by section 4 of the EU(W)A. However, I would argue that this is an erroneous interpretation of the EUIC. Although the Convention is undoubtedly intimately tied to the European Union as a project of European integration undertaken by the Member States, crucially it is not an international agreement in which the European Union as an autonomous legal body is a party thus creating effects for the Member State automatically by virtue of their membership. This is arguably the root of the misinterpretation of the operation of the Convention. The other “EU treaties” for the purpose of the ECA 1972 in which the UK participates by virtue of its membership of the EU undoubtedly cease to operate automatically by virtue of Article 50 TEU. By contrast, however, the EUIC has a free-standing existence in international law as a treaty concluded by the Member States as Contracting Parties. Consequently, as outlined above, it is subject to its own rules on the basis of international treaty law with regard to termination and withdrawal.
Without diverging too far into the intricacies of English administrative law, this idiosyncrasy could have implications for the application of a doctrine such as ‘error of law’. Although there may be an error in international law, the exercise of the statutory power in this case is legitimate on the basis of the UK constitutional law whereby the EUIC is regarded as forming part of the body of ‘retained EU law’. However, a more powerful argument may be made that the statutory instrument could be subject to judicial review on the basis that the irrelevant consideration that the UK would automatically withdraw from the EUIC was taken into account by the relevant Minister, with the relevant consideration not being taken into account that the UK remains bound by the Convention until there is an active agreement to withdraw. Indeed, if the UK proceeds to terminate the rights, liabilities, and obligations stemming from its treaty obligations in domestic law without formally withdrawing then it could find itself in breach of its international law commitments under the treaty. A further relevant consideration that may arise concerns the UK’s statement in the explanatory memorandum that it ‘will work to ensure that UK students currently at the EUI, and any who are successful in their applications for places in the 2019/2020 academic year, will be able to complete their studies’. The possibility arises that the funding already offered coupled with such a statement could produce a ‘substantive legitimate expectation’ that such funding will continue to be applied.
The spectre of Henry VIII vs. ‘Global Britain’
The direct experience of the operation of a Statutory Instrument that has immediate consequences for an individual’s status being published out of the blue with little to no consultation or forewarning vindicates the warnings regarding the Henry VIII clauses in the EU(W)A 2018. This could also constitute a foreshadowing of how an increasingly time-pressed government may engage in policy making with regard to cleaning up outstanding issues of EU membership for the foreseeable future. Beyond these procedural issues of accountability and due process, the United Kingdom’s resignation to withdrawing from the EUIC may also be regarded as a substantively regressive step. Before and after the referendum on 23rd June 2016 claims were made by prominent Brexiteers such as Boris Johnson that the UK is leaving the EU, but it is not leaving Europe. The decision to withdraw from an Institute which enables researchers from the United Kingdom to engage in an epistemological community beyond the UK’s borders would contradict such claims. Invariably, many academics who have attended the EUI enter the UK university sector enriched by their experience and prepared to make a positive contribution to the experiences of the students at their home institution. The decision to cut off such a portal to European cultural and educational co-operation outside of the official EU institutions is not indicative of a government pursuing an outward-looking ‘Global Britain’ policy. Instead, just as the monarch who bestowed these executive powers with their name pursued the English reformation, such a policy would be a similarly regressive and isolationist step.