Nosemonkey's EUtopia

In search of a European identity

The European Union and British Sovereignty

UK and EU flagsThe European Union Bill is one of those strange populist beasts announced by the Conservative Party in the run-up to last year’s general election, aimed squarely at keeping Britain’s eurosceptic right from abandoning them for the UK Independence Party (following David Cameron’s admission that he was not planning to hold a referendum on the Lisbon Treaty after it had already entered into force, despite what many eurosceptics had hoped/expected).

In short, this new bill promises to force the government to hold a nationwide referendum on any future transfer of sovereignty from Britain to the European Union – trying to put a referendum lock in place so that no future government could sign the UK up to a treaty like Lisbon (an act that caused much outrage among eurosceptics – not least because all three main parties had promised a referendum on the old European Constitution, on which the Lisbon Treaty was heavily based).

Of course, as no parliament can bind another, all any future British government that wanted to avoid a referendum would have to do is revoke this Act – if the Bill passes into law.

On top of that, the current government has realised that to hold referenda on *every* transfer of power to the EU – no matter how small – would be cripplingly expensive and inefficient, and so has opted to leave it up to ministerial discretion whether or not a transfer of power from Westminster to Brussels is significant enough to warrant a referendum. This, unsurprisingly, has greatly angered many hard eurosceptics.

Cunning Cameron

Yet despite the protestations of the eurosceptics, from British perspective this is actually a very canny move on the part of the current government – because if passed, it will instantly give the UK a far, far stronger bargaining position in the European Council, as well as throughout the rest of the EU as a whole.

The British government doesn’t like something being proposed? Whereas now the Prime Minister risks annoying and alienating his European allies by threatening to use his veto, he would now simply say “Sorry, chaps – we’ll never get it past the public in a referendum.”

By this simple piece of legislation, David Cameron will have effectively managed to have secured Britain’s continued ability to veto any EU legislation she doesn’t like – even in areas governed by Qualified Majority Voting – by creating a new line in the sand that the government can always profess to be out of their hands, thus (in theory) helping to maintain diplomatic relations in a way that would simply be impossible by the use of a ministerially-decided veto.

You’ve got to admire it – it’s very cunning. If just a little bit cowardly…

Constitutional correctives

A good overview of the first reading debate in the House of Commons (which took place on 11th January) can be found over at Connor’s place, with plenty of focus on the proposed amendments by the veteran Tory eurosceptic MP, Bill Cash.

These amendments were – thankfully – soundly defeated, with just 39 MPs voting in favour. As such, they have already become little more than a minor footnote in British/EU political history – but considering Cash’s prominence in eurosceptic circles (he led the Maastricht rebellion against John Major for starters), they can serve as interesting insights into just why (some) eurosceptics are so worried about the EU.

Bill Cash vs the British Constitution

Connor summarises the intentions of Cash’s amendments quite neatly – though his post is worth reading in full for some interesting, thoughtful observations:

these amendments were aimed at creating a version of parliamentary sovereignty that could not be interpreted or challenged by the courts (or, perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty beyond the reach of the courts). Parliamentary sovereignty is the UK legal doctrine that parliament has supreme legislative authority, and its Acts cannot be challenged by the courts – it can do whatever it wants, except limit the power of its successors (i.e. the next elected parliament(s)).

Nice summary – but I have one (important) quibble:

“perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty”

It was sadly not even that.

What Cash was trying to do with his amendments was to revert the idea of parliamentary sovereignty back to one (highly debatable) interpretation of the concept that hasn’t been (even arguably) valid since Edwardian times.

By his own admission, he wanted to push the clock back 40 years to before the passing of the 1972 European Communities Act, through which the UK joined the EEC and accepted the supremacy of European Law (in some areas) over British law.

In reality, he was trying to roll back the clock on the British constitution by the best part of a century – to before the creation of NATO, the WTO, the Council of Europe the UN and more, all of which have (to a greater or lesser extent) curtailed the ability of the House of Commons to do what it likes.

What is Parliament?

Cash also – seemingly deliberately – fails to note that Parliament is not just the House of Commons, as he repeatedly appeared to be stating throughout his speech: It is *both* Houses of Parliament, the Lords as well as the Commons.

In his amendment, Cash appeared to want to establish, by statute, not merely the supremacy of Parliament, but the supremacy of the House of Commons.

By repeatedly attacking “radical judges” and “Common Law interpretations” of the status of parliamentary legislation, he was effectively arguing that nobody is entitled to overrule the House of Commons but the House of Commons itself. (We’ve already gone a long way down that route thanks to the Parliament Acts of 1911 and 1949, which both enable the Commons to overrule the objections of the Lords in certain circumstances – Cash’s proposed amendments, however, would have set a precedent that could easily have gone even further.)

In this, at least, Cash comes closer to the mark than many eurosceptics, who frequently attack “European judges” for forcing Britain to comply with internationally-agreed laws while seemingly not realising that British judges can do much the same thing. Yet you rarely hear anyone openly (as Cash did repeatedly throughout his speech) attack the British judiciary’s right to interpret British law – which is, after all, the whole point of the judiciary…

(As a related aside: It never ceases to amaze me how British critics of non-British systems of law, regulation and government so often fail to follow the age-old maxim of “put your own house in order“. Yes, European Commissioners are unelected – but neither are British Cabinet ministers; yes, many EU laws and regulations enter into force without being scrutinised by elected officials – but so do British statutory instruments; yes, the EU’s accounts have repeatedly failed to be signed off – but neither would the UK’s accounts if they were subject to the same criteria to be passed; yes, it’s arguable that too many powers have been centralised in Brussels – but too many have also been centralised in Westminster; yes, the EU has lots of bureaucrats – but the UK has many, many times more, etc. etc. ad infinitum… Unless your own actions are blatantly better, don’t be surprised if those you are criticising don’t take you too seriously – cf. China’s response to American criticisms of the imprisonment of political prisoners while Guantanamo Bay continues to exist, or Russia’s failure to pay attention to British criticisms of the 2008 invasion of Georgia after Britain’s role in the 2003 invasion of Iraq.)

What is Parliamentary Sovereignty?

Cash also singularly failed to realise that there’s a strong distinction between the idea of *Parliament* being sovereign (as he argues passionately should be the case), and the *actual* case, which is that sovereignty lies with “the Crown in Parliament”.

A seemingly subtle distinction, this, but a vitally important one: Parliament has *never* been sovereign – sovereignty *still* lies with the monarch, even after the Civil War, Glorious Revolution, Bill of Rights, etc. etc..

This is most obviously, if largely symbolically, expressed through the fact that the Queen still has to give the royal assent to all Acts of Parliament before they can become law – Parliament lacks the power to create new laws without the approval of the Sovereign.

This is also strongly indicated in the law courts – if the state prosecutes someone, it is expressed as “Crown vs”, not “Parliament vs”.

Likewise, the government is always “Her Majesty’s government”, and the Prime Minister is still not elected – either by the people or by Parliament – but is *appointed* by the monarch in his/her role as Sovereign. (The last British Prime Minister, Gordon Brown, was frequently attacked by the Tory right for being “unelected”, having succeeded Tony Blair to the post midway through a parliamentary term. But this is not a rare event – Major, Callaghan, Douglas-Home, Macmillan, Eden, Churchill, Chamberlain, Baldwin (twice), Lloyd-George, Asquith and Balfour all became Prime Minister without a general election having been held – and that’s just the 20th century!)

Of course, the monarch no longer directly exercises most of the crown’s executive/sovereign powers, and has – for a good three centuries – mostly allowed the government of the day to run things as it sees fit. It could be argued – and many have – that the monarch’s powers are now merely symbolic, and that in practice the Sovereign is no longer sovereign, having ceded those powers to his/her representatives in Parliament.

But until that convention is actively, openly challenged (as Cash’s amendments arguably sought to do), by the wonderfully obtuse rules of the British constitution nothing has *technically* changed, even though many things may well have changed in practice. And when it comes to points of law, technicalities can often be vital. A new constitutional convention may well have been set by the crown’s failure to veto Parliament since 1708, stating that the right of veto no longer exists (thus meaning that the crown is no longer Sovereign) – but until a monarch tries (and fails) to veto parliament again, we simply won’t know.

Cash the constitutional radical

Needless to say, both of these (significant) misinterpretations of the way the UK works threatened some fundamental alterations of the British constitution when the person who believes those misinterpretations is in a position to attempt to introduce amendments to British statute law – and is eloquent enough to sound convincing.

In other words, while professing to be a constitutional conservative – and quite probably even believing that he is to his core – Bill Cash’s proposed amendments were in fact infinitely more radical than pretty much everything he was proposing them to prevent.

And that’s before we even start on his truly dangerous attempt to exempt Acts of Parliament from judicial scrutiny/interpretation – effectively putting Parliament in the position enjoyed by the monarch prior to the Civil War (a state of legal immunity/infallibility which was in large part responsible for Parliament’s revolt in the first place – the Commons arguing that *no one* should be above the Law, including the Commons themselves).

Add that attack on long-established legal principles on top, and Cash’s amendments would have amounted to one of the most radical revolutions the British constitution has ever seen. Certainly far, far more radical than anything contained in Lisbon *or* Maastricht.

Parliamentary absolutism

Cash was, in short, arguing for the reintroduction of *absolute* sovereignty – albeit absolutism based upon an elected House of Commons rather than an inherited crown.

The reason? Cash holds with what I like to think of as the *nice* (mis)interpretation of the British constitution – the interpretation held by most of the better-educated eurosceptics I’ve talked to. Students of history or political theory will recognise it as the theory of the Social Contract.

This view holds that the people of Britain are ultimately sovereign, having voluntarily ceded power first to the monarchy, then (following the Civil War and, especially, the Glorious Revolution) to Parliament. It holds that today, the people’s election of MPs to parliament shows their willingness to continue to cede power to Parliament, which exercises the people’s sovereign will on their behalf.

Sound familiar? Yep – it’s extremely close to Cash’s interpretation of “the Crown in Parliament”, which holds that the crown has ceded power to Parliament, which exercises the monarch’s sovereign will on their behalf – only this sees sovereignty passing to Parliament from the bottom up, rather from the top down.

Where do the people fit in?

What is particularly interesting is that, despite professing to be pushing for parliamentary sovereignty to be entrenched, at no point did Cash call for the concept that the people are sovereign to be entrenched – despite using the Social Contract theories about the people’s sovereignty to justify his claims about the sovereignty of Parliament. Cash was not interested in returning power to the people, but to the politicians.

Proponents of the Social Contract theory of the British constitution frequently – while being extremely well intentioned – fail to acknowledge that the Social Contract is not, nor ever has been, an actual document. Nor did the idea of the Social Contract precede the supposed initial transfer of power from the people to the monarch – nor, indeed, from the monarch to an elected government.

The Social Contract was, and always has been, an attempt to justify rebellion, or the right to revolt. Its history tells you all you need to know: First developed by Grotius in the Dutch Republic in the early 17th century following the Dutch Revolt, then developed by Hobbes (partially accidentally) following the British Civil Wars, then by Locke in Britain following the Glorious Revolution, then by Rousseau during the rising discontent of the absolutist reign of Louis XV of France – with Rousseau’s ideas and justifications later being adopted by the leaders of the French Revolution who brought Louis to the guillotine.

The Social Contract has never been the basis of government – as much as its proponents have always wanted it to – it has only ever been an excuse for usurpation.

What is sovereignty?

What *actually* grants the right to govern is simple and obvious: It is the ability to govern. That’s it.

I could publish a statement tomorrow declaring myself to be Emperor of Europe, announcing a broad range of new laws, and demand tribute from every single person in the EU. Would it mean anything? No – because I don’t have the ability to enforce those laws or the payment of that tribute.

Likewise, does an assertion that Parliament, rather than the EU, is sovereign change anything if Parliament is unable to alter EU legislation?

And here lies the rub: The sole purpose of EU legislation and regulations is intended to be to harmonise systems across the EU. If Britain were to assert her independence by rejecting more and more aspects of EU legislation and regulations, Britain would increasingly become out of synch with the rest of the EU.

A few opt-outs? Not a problem – and Britain already has quite a few (most notably on joining the Euro). But a systematic rejection of any further harmonisation – as the hardline Tory eurosceptics want? This would effectively be a declaration that Britain will no longer be participating in the EU.

Because as much as Britain may be able to claim sovereignty within her own borders, to assert her will in France, in Slovakia, in Denmark, in Finland, or in Spain would be to claim sovereignty over *those* countries as well.

By threatening to reject any further EU integration in the name of British sovereignty while still professing a desire to remain a member of the EU, Britain would be restricting the sovereignty of every other EU member state – much as the UK is *already* restricting the sovereignty of Ireland by refusing to join the Schengen Zone (which in turn has prevented Ireland from joining due to the British ultimatum: Schengen or the Common Travel Zone?)

Thanks to the very nature of the EU’s aim of harmonising European economies, a pick and mix approach such as that proposed by the (non-withdrawalist) proponents of the European Union Bill is going to be extremely difficult to put into place – and I say that as a long-time advocate of a multi-tier EU.

You cannot maintain the Common Market without common rules and regulations – which apply to all. No one should be above the law.

Does this mean that Britain’s sovereignty has been limited by EU membership?

Yes and no. Let’s use the idea of the Social Contract to explain why, as so many who argue for more British sovereignty seem to like it so much:

According to Social Contract theory, way back in the mists of time, the people ceded their sovereignty to the monarchy because they realised the advantages the protection of the monarch could bring – this despite the downsides of now having to pay tribute, serve in the militia and so on.

Later on, that sovereignty passed to Parliament because Parliament could bring even more benefits than the monarch – better laws, better regulations. More restrictions again – taxes have gone up repeatedly since Parliament took charge – but the advantages were seen to outweigh the disadvantages. If they weren’t, then the British parliamentary system of democracy would not have survived, and we would have either reverted to monarchy – as we did in 1660 after the failure of the Cromwellian republic – or come up with something better.

Indeed, the whole point of democracy is that we are *constantly* trying to come up with something better – that’s why we have new minor laws and regulations enacted every day, and change governments every few years to allow new ideas to be tested.

Now, in turn, the governments of nation states (to whom the people have ceded their sovereignty) have come to see the advantages of, in turn, passing some of *their* sovereignty to even higher bodies, which can transcend national boundaries to provide greater advantages to all. This is not just apparent in the EU, but also in NATO, the UN, the WTO, the African Union, ASEAN (in South East Asia), CARICOM (in the Caribbean), SICA (in Central America), CCASG (in the Middle East), EAEC (in Central Asia), SAARC (in South Asia), UNASUR (in Latin America), and countless other bodies – even the federal United States of America itself counts, albeit a couple of centuries earlier.

Yes – I’m adopting a teleological approach *and* the Social Contract (both of which I despise as ahistorical nonsense) to argue that passing sovereignty to a level above the national is a natural next step in society’s evolution.

More seriously, I’m arguing that the advantages of EU membership far outweigh the advantages of withdrawal. That, while we could leave – just as we could go back to absolute monarchy – it is not in our interests to do so.

British sovereignty and the EU

But – and this is crucial – Britain retains the right to reclaim the sovereignty she has pooled at EU (or UN, or NATO, or WTO, or whatever) level any time she likes. As former Foreign Secretary Malcolm Rifkind succinctly put it in the European Union Bill debate:

“is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.”

If Britain doesn’t like it, she’s still free to leave any and all of her international treaty obligations. She’s also free to try to persuade other countries to leave with her, or to set up her own alternatives (as she did with EFTA back in 1960, having missed the boat with the initial launch of the EEC).

Britain’s ability reclaim *total* independence and sovereignty is not constrained in the slightest by EU membership, or by membership of NATO, the UN, the WTO, or whatever. We can go the way of North Korea any time we like – principles of self-determination are firmly entrenched in international law.

But what Britain *can’t* do is guarantee that *other* countries will be happy to play along in the way that Britain wants if Britain decides to throw her toys out of the pram.

What Britain also can’t do is expect other countries to always agree with her. We can’t be members of just the kind of European Union that we would like it to be – we can only be members of the EU that we’ve got (created by compromise and slow evolution over 60-odd years of negotiations between more than two dozen countries), while continuing to try to convince everyone else that our ideas are worth adopting.

There is no possibility – no matter how much many may want it – of Britain simply being a member of the Common Market without any of the EU rules and regulations that are now an intrinsic part of that Common Market. This is no more possible than me owning a pet Dodo. We missed our chance.

And if she knows what’s good for her, what Britain *shouldn’t* do – within the current EU set-up – is attempt to impose her will on other EU member states through the threat of veto or referendum.

Use vetoes and referendums to protect her own interests? By all means. But not to force others to comply with her wishes in ways that will negatively affect them.

If Britain wants to remain a member of the EU but in doing so prevents further European integration from happening, she will be destroying the EU – forcing it to stay as something Britain wants, not what other EU member states may want. And this not by negotiation, but by an obstinate, childish refusal to either compromise or have the decency to leave and let others get on with it. It’d be the diplomatic equivalent of puncturing the football the other children are playing with because no one wants to play cricket with you.

In short, my fear is that in attempting to assert British sovereignty, the European Union Bill threatens to undermine the freedoms – the sovereignty – of other EU member states, in the process building resentment against Britain that would only serve to undermine British interests.