EU Constitutional Change and its Legal Implications Within the UK
Submitting InstitutionUniversity of Liverpool
Unit of AssessmentLaw
Summary Impact TypeLegal
Research Subject Area(s)
Studies In Human Society: Policy and Administration, Political Science
Law and Legal Studies: Law
Summary of the impact
This case-study is based upon research by Prof Michael Dougan and Dr
Michael Gordon (both members of the Liverpool European Law Unit)
undertaken between 2008 and 2013. That work critically assesses a series
of interlinked EU constitutional reforms, and their impact upon the EU's
relationship to its Member States, with particular reference to the UK
experience: first, the interpretation and implementation of the Lisbon
Treaty 2007; secondly, the design and implications of the European Union
Act 2011; thirdly, Britain's legal and political reception of the 2012
"Fiscal Compact" Treaty. The research's principal impacts have occurred
within the period 1 January 2008 to 31 July 2013. They consist in
providing a wide range of high-level institutional actors (including the
European Court of Justice, the UK Foreign and Commonwealth Office and the
House of Commons) with an objective and thorough critical evaluation of
those major constitutional developments, so as directly to inform and
assist their policy deliberations (including specific recommendations
based directly on the research) on issues of fundamental importance to the
future interests of the EU and the UK.
For over a decade, the EU has experienced a period of almost unbroken and
often highly fraught constitutional reform. This has posed important legal
challenges not just for the EU itself, but also for its Member States -
not least the UK - as they seek to redefine their own relationship to the
changing European landscape. Within that context, the research outputs
detailed in Section 3 explore three main interrelated themes; in each
case, identifying the key issues which should command legal and
political attention, providing original and objective critical
analysis of those issues, and offering practical recommendations
to guide future policymaking.
First, the adoption of the Lisbon Treaty 2007, which
entered into force in 2009 and brought with it sweeping reforms to the EU.
The research explores the constitutional significance of Lisbon for the
fundamental structures and principles underpinning the EU's institutions,
powers, procedures and policies. The research also addresses the impact of
Lisbon upon the EU's system of fundamental rights protection, and
discusses the new Treaty's relevance for broader debates about
citizenship, democracy and legitimacy in Europe.
Secondly, the UK's direct response to the Lisbon Treaty's entry
into force through enactment of the European Union Act 2011. That
legislation was proposed after the 2010 general election, in the light of
the Conservative Party's manifesto pledge to reassess the UK's
relationship to the EU. The Act is a major constitutional statute that
radically increases public and parliamentary control over a host of
decisions relating to British participation in European integration, as
well as clarifying the fundamental legal basis of the UK's membership of
the EU. The research critically assesses the Act's context, content and
implications for both Britain and Europe.
Thirdly, the conclusion of the Treaty on Stability, Coordination
and Governance 2012 (the so-called Fiscal Compact). At a meeting
of the European Council in December 2011, the UK controversially vetoed
any changes to the post-Lisbon EU Treaties designed to tackle the Eurozone
debt crisis. Instead, 25 Member States decided to pursue their reforms to
governance of the single currency through the medium of an ordinary
intergovernmental treaty. Here, the research explores various complex yet
crucial questions: the relationship between the Fiscal Compact and the
Lisbon Treaty's constitutional settlement for the EU as a whole; the
interaction between the Fiscal Compact and the provisions of the EU Act
specifically within the UK; and the broader implications of these
developments for the UK's very place within the EU.
All of the research underpinning this case-study was completed while
Dougan was employed as Professor of European Law and Gordon as Lecturer in
Public Law at the University of Liverpool. Some research outputs were
published in peer-reviewed academic journals/edited collections. Others
were written specifically at the invitation of/in response to
consultations by major public bodies, but the latter papers were also
drawn directly from academic publications in press or under preparation
for future publication. All relevant research outputs were published after
1 January 2008. All associated impacts occurred during the period from 1
January 2008 to 31 July 2013.
References to the research
On the Treaty of Lisbon 2007, the key research output is a
peer-reviewed article by Dougan in one of the field's leading journals:
"The Treaty of Lisbon 2007: Winning Minds, Not Hearts" (2008) 45 Common
Market Law Review 617-703. Derivative papers sought to summarise its
main findings for non-academic audiences, e.g. "The Treaty of Lisbon:
Selected Highlights" for the Foreign and Commonwealth Office (December
2009; 8,500 words); "Freer than we were" for Parliamentary Brief
(February 2008 issue, Volume 11, Number 9; 2,000 words).
On the European Union Act 2011, the key research output is a
peer-reviewed article by Dougan and Gordon in another of the field's
leading journals: "The European Union Act 2011: `Who Won the Bloody War
Anyway?'" (2012) 37 European Law Review 3-30. This article was
directly based on the authors' written evidence to the European Scrutiny
Committee of the House of Commons.
On the Fiscal Compact 2012, the key research output consists of
written evidence by Dougan and Gordon (12,000 words) submitted to the
European Scrutiny Committee in response to its public inquiry Possibilities
for Reinforcing the Eurozone Following the December European Council.
That evidence provided the basis for two subsequent academic publications:
"Some Thoughts Concerning the Draft Treaty on a Reinforced Economic Union"
(2012) 49 Common Market Law Review 1-14 and "What do we want?
`Flexibility! Sort-of...'" (2013) 50 Common Market Law Review
Details of the impact
Taken together, the research outputs detailed in Section 3 have led to a
combination of significant impacts for a range of important beneficiaries,
which can be divided into three main categories.
i) Benefiting the political and legal debate over Lisbon's
ratification within the UK and beyond; while also assisting with the
UK's legal preparations for implementing Lisbon
Within the UK, the research contributed to critical understanding of the
Lisbon Treaty among the country's political leaders. First, it did so by
helping to inform Parliament's decision about whether or not to ratify
Lisbon at all. Dougan's analysis of various major EU reforms and
their specific relevance for the UK, as summarised in "Freer than we
were", was quoted (with approval) by Edward Davey MP during a Commons
debate on the European Union (Amendment Bill) which led to the UK's
ratification of Lisbon. The same paper was also the subject of direct
(critical) correspondence by William Hague MP (then Shadow Foreign
Secretary) in Parliamentary Brief (March 2008 Issue).
Secondly, the research also directly assisted in Whitehall's
preparations for implementing Lisbon. In November 2009, Dougan was
the primary speaker at the only in-house event organised for the entire
Foreign and Commonwealth Office in preparation for Lisbon's entry into
force. That event was designed to identify the new Treaty's potential
implications for the UK and to explore the myriad challenges facing civil
servants and diplomats. The FCO noted that the high turnout for this event
meant that Dougan's work reached a wide audience, who appreciated his
focus on those issues of greatest interest to, and that directly affected
the work of, government policymakers. Moreover, the summary paper
delivered at this event, drawn directly from Dougan's CMLRev
analysis, was also widely circulated among the UK civil, legal and
diplomatic services - including senior members of the FCO, the UK
Permanent Representation to the EU, and the Cabinet Office.
In other EU Member States, ratification of the Lisbon Treaty caused
problems more in the judicial than in the parliamentary context: legal
challenges were brought to Lisbon's compatibility with national
constitutions as concerns the extent to which it had created a new
federal entity which threatened Member State sovereignty. In its 2009
ruling on the constitutionality of the Lisbon Treaty, the Latvian
Constitutional Court cited "Winning Minds, Not Hearts" as direct authority
for confirming that Lisbon did not fundamentally change the legal
character of the EU, nor the essential architecture of the EU's judicial
system, thus supporting the court's decision that Lisbon's ratification
would not be incompatible with the Latvian constitution.
"Winning Minds, Not Hearts" has also informed senior judicial
understanding of other Lisbon reforms particularly at the Court of
Justice of the European Union: e.g. it was cited by Advocate General
Trstenjak in the landmark NS case, as regards interpretation of
the new Protocol on application of the Charter of Fundamental Rights to
Poland and the United Kingdom; and by Advocate General Kokott in the
equally important Inuit dispute, as representing the current state
of scientific opinion, in the English-language scholarship, concerning
Lisbon's impact upon the access to justice of individual citizens directly
before the EU courts.
ii) Benefiting Whitehall's understanding and Parliament's scrutiny of
the EU Act 2011
In late 2010, Dougan and Gordon submitted Written Evidence to the
European Scrutiny Committee of the House of Commons for the purposes of
its inquiry into the newly published EU Bill. Evidence concerning
Part 3 of the EU Bill, concerned with the impact of the draft legislation
upon the fundamental UK constitutional principle of parliamentary
sovereignty, was cited and discussed by the Committee in its final report.
It was also cited, as making a "pretty powerful statement", by Wayne David
MP during the plenary debate in the House of Commons.
Moreover, evidence concerning Part 1 of the EU Bill, concerned with the
legal and political problems associated with introducing a system of
"referendum locks" on a wide range of EU matters, was described as
"particularly useful" by the Committee and is cited repeatedly and
extensively in its final report. One point of particular influence
concerned the authors' unique research insight that there were
potential loopholes in the system of public and parliamentary control
provided for under the EU Bill. Based on those research findings, the
Committee specifically recommended amending the Bill so as to close those
very loopholes. That aspect of the evidence was also highlighted during
plenary debates in the House of Commons by both Emma Reynolds MP and
William Cash MP.
In Autumn 2010, Dougan was invited by the Foreign and Commonwealth
Office to take part in a closed roundtable discussion of academics
and NGOs aimed at informing the department's understanding of the detailed
provisions and broader implications of the EU Bill. In March 2011, Dougan
was also invited by The Constitution Trust to speak about the EU Bill to
the All-Party Parliamentary Group on the Constitution (a regular
meeting of parliamentarians from the House of Commons, the House of Lords
and also the European Parliament to discuss issues of major constitutional
concern): summarising the authors' written evidence to the European
Scrutiny Committee, as well as answering questions from the various
parliamentary attendees, Dougan here sought to inform lawmakers' critical
understanding of the EU Bill at a key stage during its passage through the
Commons and shortly before its consideration by the Lords.
iii) Benefiting the political and legal debate within Parliament over
the Fiscal Compact, as regards its relationship to existing EU / UK law,
and its broader future implications
In early 2012, Dougan and Gordon submitted Written Evidence to the
European Scrutiny Committee of the House of Commons, for its public
inquiry into resolution of the Eurozone crisis. Dougan was also
among a small number of experts invited to give Oral Evidence to
the Committee at a public evidence session.
That evidence was cited repeatedly and extensively by the Committee in
its final Report. In particular, the authors' research findings
directly informed the Committee's critical evaluation of crucial but
deeply contested constitutional questions such as: whether the
Commission's roles under the Fiscal Compact were compatible with EU law;
whether the EU Courts could legitimately be granted jurisdiction over the
Fiscal Compact; and whether the UK had any legal grounds for objecting to
the Fiscal Compact as a matter of EU law. The authors' evidence was also
directly cited by David Lidington MP (Minister of State for Europe) during
an emergency House of Commons debate on the Fiscal Compact, as well as
during the Minister's own evidence to the European Scrutiny Committee.
After the adoption of the Fiscal Compact, the prospect of further EU
constitutional reform prompted a broad political debate about the UK's
future place within/relationship to the rapidly evolving EU legal
landscape. In March 2012, the Foreign Affairs Committee of the House
of Commons launched a major inquiry into UK Government policy on the
future of the European Union in the light of the "December veto".
Dougan and Gordon submitted Written Evidence to that inquiry; the
Committee itself solicited further views from Dougan and Gordon as the
Once again, that evidence was cited repeatedly in the final report
of the Foreign Affairs Committee - the authors' research findings serving
directly to inform the Committee's analysis and evaluation of key issues
such as: the degree to which the legal obligations contained in the EU Act
may have influenced the Government's decision to exercise its veto over
amendments to the EU Treaties; how far the EU Act should be seen as a
watershed in the UK's policy towards the EU; and the complex legal issues
raised by the relationship between the EU Treaties and the Fiscal Compact.
On that last point, Dougan and Gordon were specifically credited for
having brought to the Committee's attention the highly pertinent
implications to be drawn from the recent Pringle ruling of the
European Court of Justice (Case C-370/12; Judgment of 27 November 2012),
which confirmed the authors' interpretation of the legal relationship
between the Fiscal Compact and the post-Lisbon EU legal order, as they had
previously proposed to the European Scrutiny Committee.
Moreover, in his January 2013 keynote speech on the future of UK-EU
relations, the Prime Minister called for a debate about the
possibilities for greater flexibility in the terms of EU membership.
In February 2013, Dougan was invited to speak on the legal framework for
facilitating such greater flexibility within the EU legal order at a closed-door,
high-level policy forum on The Future of Europe organised by
Wilton Park (an agency of the Foreign and Commonwealth Office). That event
was attended by politicians, political advisors, diplomats and political
commentators from the UK and across the EU as well as the USA. Dougan
presented the paper subsequently published in CMLRev as "What do
we want?". His presentation was followed by a plenary Q&A session in
which attendees explored further the various legal and policy issues
raised by Dougan's analysis of the Prime Minister's speech and the
prospects for more flexible EU policymaking.
Sources to corroborate the impact
- For documented impact on the European Scrutiny Committee's
deliberations concerning the EU Act, see The
EU Bill and Parliamentary Sovereignty (10th Report of
Session 2010-11): Written Evidence published at Ev 11 and Ev 32;
Citations at paras 40 and 65 of Volume I. And The
EU Bill: Restrictions on Treaties and Decisions Relating to
the EU (15th Report of Session 2010-11): Written
Evidence published at Ev 27; Citations at paras 38, 42, 45, 46, 48, 53,
54, 55, 76 and 99.
- For documented impact on the European Scrutiny Committee's analysis of
the Fiscal Compact, see Treaty
on Stability, Coordination and Governance: Impact on the Eurozone
and the Rule of Law (62nd Report of Session
2010-12): Written Evidence published at Ev 60 and Ev 84; Oral
Evidence published at Ev 16; Citations at paras 25, 26, 30-32, 36,
40-41, 46, 48, 51, 69, 71 and 73 of the Report; and also in Ev 42, Q
- For documented impact on the Foreign Affairs Committee's inquiry
concerning the Lisbon Treaty, EU Act and Fiscal Compact, see The
Future of the European Union: UK Government Policy (1st
Report of Session 2013-14): Written evidence published at Ev 110
and Ev 113 in Volume II; Citations at paras 23, 37, 45, 46, 80 and 122
of Volume I.
- For documented impact in the various Commons debates referred to in
Section 4, see: HC
Deb, 3 March 2008, c1524; HC
Deb, 25 January 2011, c187 and c208; HC
Deb, 11 July 2011, c76; HC
Deb, 29 February 2012, c346.
- For documented impact on the various judicial proceedings referred to
in Section 4, see: Latvian
Constitutional Court, Case No 2008-35-01 (7 April 2009), paras
10.3 and 18.9; Case
C-411/10 NS (Opinion of 22 September 2011, paras 169 and
C-583/11 P Inuit Tapiriit Kanatami (Opinion of 17
January 2013, para 28).
- The Head of Europe Research Group at the FCO has provided a statement
corroborating the nature of Dougan's participation in the 2009 Lisbon
Treaty seminar as well as the distribution of Dougan's research within
the UK civil service (as described in Section 4).
the 2013 Wilton Park policy forum are available on their website
(event reference: WP1215).