The UK’s supranationalism is at the root of its EU difficulties

The ongoing debate in the UK about the EU is largely about UK constitutional politics. The Prime Minister has pledged that if re-elected, he will present the United Kingdom with an in/out referendum in 2017 on a reformed EU. Opponents, notably in UKIP, call for a referendum now, or for a commitment to invoke Article 50 in the Lisbon Treaty. The article stipulates that any Member State may decide to withdraw from the Union “in accordance with its own constitutional requirements”, and that withdrawal has to be negotiated. The terms of the article make it plain that the member state negotiating withdrawal risks facing very tough and demanding conditions.

Article 50 on page 46 http://www.eudemocrats.org/fileadmin/user_upload/Documents/D-Reader_friendly_latest%20version.pdf

UKIP’s attraction.

At first glance, this would seem to present a major argument against withdrawal. Deputy Prime Minister Nick Clegg argued “We are better off in Europe – richer, stronger, safer – and that’s why I will fight to keep us in, for the sake of jobs, for the sake of our clout in the world, for the sake of Britain.” Nigel Farage argued in his TV debates with Nick Clegg that the UK would be far better off as a self governing country, trading with the rest of the world, than remaining a province of a new European super state headquartered in Brussels. http://www.lbc.co.uk/watch-lbc-leaders-debate-live—26th-march-87667

The draw of UKIP is that it alone is dealing with the central question of how the UK is governed, and by whom. The question: who governs the UK? is the elephant in the room. The main parties accuse UKIP of being little Englanders; of playing on latent racialism in its emphasis on immigration; of jeopardizing British jobs and influence in international affairs; and in general of appealing to the “angry vote” of the many who are disillusioned with Westminster, and of the many more who dislike “Brussels”.

People in the UK know about the way the UK works. Elections, political parties, spin, government, elections…they are all familiar. So is Farage, the UKIP leader. He has picked up immigration because it has long been no 1 issue across the UK, that most parliamentary candidates have failed to relay, and also because his argument that the UK should have a policy for immigration points out that in the EU the UK does not have one. Farage is talking about governance. Clegg in the TV debate talked jobs. 
They are related, but by far the most important is governance. Most people want the UK to be self-governed. The pro group has to address this problem. Their problem is that when they say that we are better pooling sovereignty, i.e. being in the EU process, and being on our own is madness, then the question is: well explain please why Australia, Canada and Singapore do pretty well as self governed states? There are answers, but they are not compelling.

By contrast, Europe is very unfamiliar. It is a set of institutions; it is a mosaic of interdependent states; it is bound into the rest of the world through trade, investment and alliances; and its institutions and member states stand in varied power relationships with each other, and with the powers of the world. Each one of the European states, whether members of the EU or not, are particular, with their own history, memories, and hopes for the future. Given their interdependence, they share many attitudes: the Euro crisis has seriously dented public support, always modest, for the EU institutions; all countries face a sense of their sovereign powers being hollowed out; the German public are no longer prepared to be the milch cow of the EU; the Italian public, long favourable to the idea of a European federal arrangement, has become skeptical; the French public have never ever accepted liberalisation, which the EU entails. The British public clearly wants their own elected officials alone to hold responsibility for policy. They have long been ardent supporters of international cooperation. 
But they are among the least enthusiastic for the European “project”.

The UK and Europe: early days.

There can be no doubt that the two world wars severely dented British confidence in being able to ensure the peace. Some other way had to be found than the arms length diplomacy that had been practiced prior to 1914 and in the 1930s. UK diplomacy was active in the search, taking a lead role in the creation of the United Nations; of the Organisation of European Economic Development; of the North Atlantic Alliance, the Council of Europe and other institutions. But the UK stood aside from the European Coal and Steel Community, created in 1951, on the grounds that its supra nationalist aspirations would undermine UK control of the coal and steel industries, and also prove incompatible with parliamentary sovereignty. The UK stood aside from the even more ambitious and supra nationalist project for a European Defense Community, which was killed by the French National Assembly in 1954. The UK also stood aside from the more modest project to create the European Economic Community, whose terms were laid down in the Rome Treaty, signed in 1957.

In the words of Sir Roy Denman, an ardent UK Europeanist, “In the euphoria of Allied victory in 1945, Britain could have had the leadership of Europe for a song. Britain missed that chance and almost every other since. British ministers did not understand the desire of the continental countries, after five years of defeats and occupation, to unite”.[1]Denman’s thesis captures the essence of a popular view, both in the UK and in France, whereby Britain is an awkward partner in the complex process of European unification. [2] The evidence though points to the UK, once it joined in 1973, as a particularly active and influential member state.[3]

The Rome Treaty and President de Gaulle.

There have always been two fundamental positions taken by participants in the diplomatic process since the inception of the movement for some form of cooperation or unity among European states: on the one hand, stand the representatives of a Europe of states. Their most powerful representatives have been President de Gaulle in France and Prime Minister Thatcher in the UK. Their position is that the member states must be free to cooperate together wherever necessary, but to retain their independence, and most of all, their own institutional legitimacy. A Europe of cooperating states can only function on the basis of the consent of their peoples through their national parliaments.

The proponents of a united Europe have argued that the division of Europe into a multitude of small to medium size states became, over time a prime engine for war, as governments promoted or were transformed by local nationalisms, which in turn exacerbated relations between the states. The result, in this view, was the two world wars. The answer to Europe’s structural deficiency is therefore to overcome fragmentation by either a big leap to union, or through a boring but detailed creation of binding commitments between the member states. The big bang approach failed in the proposal for the European Defense Community in 1954, followed by the failure of the Euratom Treaty, but arguably won out in the creation of monetary union, signed into initial existence with the Maastricht Treaty of 1992. The poor sister of the Rome Treaties of 1957/58 was the Treaty founding the European Economic Community. http://www.hri.org/MFA/foreign/treaties/Rome57/

The Rome Treaty represented a hard-negotiated balance between the representatives of the six founding states. The French Fourth Republic, having failed to implement the ambitious EDC project, favoured a more prudent approach in negotiations on the creation of the EEC, not least because its terms required the opening of France’s protected and high cost national markets to German and Dutch manufactured goods. Without any doubt, prudence predominated.

The Treaty preamble commits the member states to “ever closer union among peoples”. Article 2 of the EEC Treaty specifies that “The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of member states, to promote throughout the community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the states belonging to it”. This common market is founded on the famous “four freedoms”, namely the free movement of persons, services, goods and capital. It creates a single economic area establishing free competition between undertakings. It lays the basis for approximating the conditions governing trade in products and services over and above those already covered by the other treaties (ECSC and Euratom). But the Treaty also incorporates multiple exceptions and get outs, to allow for changing circumstances and diverse conditions.

At the time, the supranational enthusiasts for a United States of Europe considered that the Euratom Treaty was much more significant. But de Gaulle scotched that idea, and accepted the more modest economic union. As the most powerful member state, France under de Gaulle entrenched the Common Agricultural Policy, opening French machine tool markets to German goods in return for French access to German food markets. A common external tariff was set up, and internal tariffs and quotas lowered. Fuelled by low oil prices, the EEC economies boomed.

The European Court of Justice and its supremacy claim.

The proponents of a European union did not abandon hope, though. The Commission acquired powers to represent the EEC in international trade negotiations, and the judges in the European Court of Justice (ECJ), in the landmark case of Flaminio Costa v ENEL [1964] ECR 585 (6/64) acclaimed the supremacy of EEC law over the laws of its member states. It ruled that EC law would not be effective if Costa could not challenge national law on the basis of its (Italian) alleged incompatibility with EC law: “It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.” This principle, never explicitly stated in the Rome Treaty, had been sketched out in the Van Gend en Loos case (Case 26/62); [1963] (http://www.cvce.eu/obj/judgment_of_the_court_van_gend_loos_case_26_62_5_february_1963-en-4b81dcab-c67e-44fa-b0c9-18c48848faf3.html), and extended to the principle of direct effect, whereby provisions of EEC law may confer rights on individuals which the courts of member states are bound to recognize and enforce. The ECJ subsequently expanded the principle as applicable to virtually all possible forms of EU legislation.

The ECJ’s unremitting campaign for the supremacy of EEC/EU law has remained controversial from the start. In 1964, de Gaulle was in office. A year before, he had rejected the UK first bid for entry as threatening to dilute what he conceived of as a French sphere of influence in western Europe. Successive Gaullist governments brushed aside the ECJ’s supra nationalist bid for power, just as de Gaulle in 1965 boycotted the Council of Ministers, unless the Commission bowed to his wishes. Gaullists interpreted supra nationalism as none other than a German imperial bid for power, not by a Schlieffen Plan lunge at France through Belgium, or by tank offensives through the Ardennes, but as silent institutional aggression against French sovereignty, in other words, France’s right as an independent state to say: “Non”.

The EEC five all pretended to be horrified at de Gaulle’s “nationalism”, the Italian Christian Democrats because they were born in the Vatican and were familiar with supra national law; the German Christian Democrats voiced similar opinions; so did the Dutch, Belgians and Luxemburg. Of course, at the time, it was hardly possible to export into Germany given the cross shareholdings; the local supply chains; the multiple tiers of laws protected by Länder governments designed to keep business local. Words in the 1960s among the representatives of the EEC five were federal in orientation, but in practice, they were no less national than de Gaulle’s actions.

The UK’s supranationalism.

So when Wilson’s government made the UK’s second bid as EEC member, and was rejected by de Gaulle in 1967, this played into the hands of the UK’s very own supra nationalists. Who were they? They were cross party people like Roy Jenkins and Ted Heath; they were senior officials in Whitehall, like Sir Roy Denman; they included the CBI, the Financial Times, The Times and the BBC; in particular, they appealed to the generation which had experienced the wars of the early part of the century.

To make amends for past sins of insularity, the pro entry UK lobby advocated alliance with the Five; claimed to have an answer to Britain’s economic problems; talked progressive modernism, rejecting empire, Commonwealth, naval interests, and worked up their own ideological vision for the UK in a post national EEC. Simply put, the UK had to lead the way to a new super state, which would replace the empire as the prime source of UK influence in the world; would spike French nationalism; contain Germany; ensure Europe’s continued division; play to US interests, and ensure continued UK influence at various high tables.

In the European Communities Act of 1972 the crucial clause, under the section General Implementation of the Treaties, is Section 2.1. It states:(http://www.legislation.gov.uk/ukpga/1972/68/section/2/enacted)

“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ” enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.”

The Act in effect recognized the supremacy of EEC law, thereby silently burying the UK constitution from 1689, based on the Bill of Rights, and that underpinned the US Constitution. As the UK parliamentary website states:(http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63304.htm)“ Section 2(1) means that provisions of EU law that are directly applicable or have direct effect, such as EU Regulations or certain articles of the EU Treaties, are automatically “without further enactment” incorporated and binding in national law without the need for a further Act of Parliament. Section 2(1) applies to EU law now and as it develops in the future “from time to time” either by Treaty revision “created by” or interpretation by the Court of Justice of the EU “arising under”. So, when an EU Regulation enters into force, it automatically becomes part of national law, as it does in the other 26 Member States on the same day. The uniqueness of section 2(1) is that it gives effect to directly applicable or effective EU law without the need each time for implementing legislation, as would usually be required for the incorporation of other obligations assumed under international law by a dualist State. The domestic courts are obliged to give full effect to section 2(1), in the light of the case law of the Court of Justice (section 3(1)”.

As Lord Denning famously stated, in the 1974 case of Bulmer versus Bollinger, (http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1974/14.html&query=Bulmer+and+v+and+Bollinger+and+%281974%29&method=boolean)

“The treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. “He went on: “Any rights or obligations created by the Treaty are to be given legal effect in England without more ado. Any remedies or procedures provided by the Treaty are to be made available here without being open to question. In future, in transactions which cross the frontiers, we must no longer speak or think of English law as something on its own. We must speak and think of Community law, of Community rights and obligations, and we must give effect to them.”

Denning realized what had happened. But the enormity of what the Heath government had done was not widely appreciated or understood. Up to that time, the sovereign was the Crown in parliament. That had been the basis on which the unwritten Constitution of the UK had evolved over centuries. Prior to 1972, voters in the UK assumed that their MPs would vote always in their conscience for the UK’s interests. This trust was destroyed by entry to the EU: Those who negotiated the UK’s EEC entry: 1. shared the view of the time that parliament was unimportant; 2. were desperate to enter the EU in order to attract multinational investment, then from the US; 3. were prepared to ditch the Commonwealth farm suppliers for CAP, which involved paying a yearly tribute to mainly French agriculture, and that raised the price of food on the table in the UK; 4. gave in to French demands that the waters around the UK were EEC waters, thereby sacrificing UK fisheries; 5. shared the current view that large markets should override national political systems, i.e. signed up already to the notion of the “internal market”; 6. and above all, were more supranationalist than any other government in the EEC.

In the EU referendum of 1975, the “ins” won. But the referendum was a further massive infringement of parliamentary sovereignty, a Jacobin principle that “the will of the people” must prevail, not the discretion of the people’s representatives in parliament.[4] In Scotland, the discovery of North Sea oil; the collapse of the heavy industrial economy; the disbandment of famous regiments; the rapid collapse of formal religion, and the wave of Marxism that washed over Scottish universities[5] prompted an awakening that the auld pact of 1707 on which the Union was built had been betrayed. By the end of the 1970s, old loyalties to the Union were still vigorous enough to deny devolution to Scottish Labour and the SNP in the referendum of 1979.

 

The continentals call a halt to “ever closer union”.

No other member state at the time went anywhere near recognizing the ECJ’s claim that EEC law was supreme over national law: Only in 1975, under President Giscard d’Estaing, did France recognize the supremacy of EC law over French ordinary courts; France’s supreme administrative court, the Conseil d’Etat, only accepted the supremacy claim in 1990, and then with reservations, predicated on the principle embedded in all French Constitutions since the Revolution, that France is “Une et Indivisible”. In Germany, the ECJ supremacy claim led to a direct clash with the German Constitutional Court, that was partially settled in 1986, when, in the so called Solange II case, the German Constitutional Court held that so long as EU law had a level of protection of fundamental rights substantially in concurrence with the protections afforded by the German constitution they would no longer review specific Union acts in light of their own constitution.

But reticence remained: in the European Constitution, (which was defeated in referenda in France and The Netherlands in 2005) Article I-6 of the European Constitution stated that “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.” (http://www.cvce.eu/obj/the_treaty_establishing_a_constitution_for_europe-en-4eb2765d-720c-4358-a5fe-e318d06562f1.html)

After defeat in the referendum, the Constitution was rejigged as the Lisbon Treaty, a treaty being a document freely entered into by sovereign states, whereas a constitution writes the rules for a sovereign territory. The supremacy clause duly found its way into an annex. The legal opinion of 22 June 2007 
on which this annex to the Lisbon Treaty is based, declares: “It results from the case-law of the Court of Justice that primacy of EU law is a cornerstone principle of Union law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.” (http://en.wikisource.org/wiki/Consolidated_protocols,_annexes_and_declarations_attached_to_the_treaties_of_the_European_Union/Declarations#17._Declaration_concerning_primacy)

In other words, the Court claims supremacy, but that supremacy is not recognized in any Treaty form. For the member states, it is a provisional convenience.

Why this crevasse between talk among EU continental states of Union and their behavior to pursue national interests? Simply, the sovereign member states were not prepared to hand over sovereignty to EU institutions, as if they were turkey’s voting for Christmas. Chancellor Kohl at the time of the Maastricht Treaty had hoped to flank the newly minted ECB with a political dimension, ceding more powers to EU institutions. Political development of EU powers was said to be all the more urgent as membership expanded from 12 to 15, and then to 28. As German Foreign Minister Joschka Fischer argued in May 2000, in order to master the tensions between western continental monetary union and eastern enlargement, the EU had to become a European federation of independent states. [6] “A tension, he warned, has emerged between the communitarization of the economy and the currency, on the one hand, and the lack of political and democratic structures, on the other, a tension that might lead to crises within the EU if we do not take productive steps to eliminate the deficits in political integration and democracy, thus completing the process of integration”. Negotiations to modify EU institutions began in 2001. After a lengthy process of inter-governmental conferences, and its rejection three times by the French, Dutch, and Irish voters, the Lisbon Treaty became law on December 1, 2009,[7] after a yes vote in a second referendum in the Irish Republic. While extending the legal powers of EU institutions, the Treaty formalized the Euro Group of finance ministers, which had been meeting since the currency’s inception.

But the Lisbon Treaty was far from creating a federal state. Germany’s Constitutional Court confirmed the compatibility of the Treaty with the Basic Law. But the Court made the crucial statement that the EU was “an association of sovereign national states” (Staatenverbund), and not a federal state (Bundestaat). If another intergovernmental conference were to be called to create a European democratic polity, Germany’s “accession to a European federal state would require the creation of a new constitution”.[8] As the Court opined:

“As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority. In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law. There is no such act here.”

 

The Court continues:

The peoples of the Member States are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution, i.e. of the constitutional identity (Article 23.1 sentence 3, Article 79.3 GG). The constitutional identity is an inalienable element of the democratic self-determination of a people. To ensure the effectiveness of the right to vote and to preserve democratic self-determination, it is necessary for the Federal Constitutional Court to watch, within the boundaries of its competences, over the Community or Union authority’s not violating the constitutional identity by its acts and not evidently transgressing the competences conferred on it.

In counterpoint to the UK Accession Act, the Court proceeds:

The Act Approving the Treaty of Lisbon is measured by the Federal Constitutional Court against the standard of the right to vote. As a right that is equivalent to fundamental right, a violation of the right to vote can be challenged by a constitutional complaint (Article 38.1 sentence 1 in conjunction with Article 93.1 no. 4a GG). The right to vote specifies the right to democratic self-determination, to free and equal participation in the state authority exercised in Germany and to compliance with the principle of democracy including the respect of the constituent power of the people. The review of a violation of the right to vote also comprises encroachments on the principles which are codified in Article 79.3 of the Basic Law as the identity of the constitution. The citizens’ right to determine, in equality and freedom, public authority affecting them with regard to persons and subject-matters through elections and other votes is anchored in human dignity and is the fundamental element of the principle of democracy.

In words which would rejoice Nigel Farage, the Constitutional Court goes on to hit a number of nails firmly and squarely on the head:

“The authorisation to transfer sovereign powers to the European Union pursuant to Article 23.1 GG is, however, granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of a responsible integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Federal Republic of Germany does not lose its ability to politically and socially shape the living conditions on its own responsibility. Article 23.1 GG and the Preamble do not say anything about the final character of the political organisation of Europe. With its Article 23, the Basic Law grants powers to participate and develop a European Union which is designed as a Staatenverbund. The concept of Verbund covers a close long-term association of states which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order is, however, subject to the disposal of the Member States alone and  in which the peoples of their Member States, i.e. the citizens of the states, remain the subjects of democratic legitimisation. The European Union must comply with democratic principles as regards its nature and extent and also as regards its own organisational and procedural elaboration (Article 23.1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law). This means firstly that European integration may not result in the system of democratic rule in Germany being undermined. This does not mean that a number of sovereign powers which can be determined from the outset or specific types of sovereign powers must remain in the hands of the state. European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. To the extent that in these areas, which are of particular importance for democracy, a transfer of sovereign powers is permitted at all, a narrow interpretation is required. This concerns in particular the administration of criminal law, the police monopoly, and that of the military, on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

In short, Germany’s supreme legal instance was declaring that German policy in the EU had to be predicated on what Charles de Gaulle used to call “L’Europe des Etats”. As Paul Kirchhof, a former constitutional judge, declared: “The European Union is a contract between sovereign states and as such a political space of secondary rank”. He added: “There never will be a European state as long as the German constitution has life”.[9]

 

Conclusion.

There are a number of conclusions to draw from this account of the UK as the EU’s lone supra nationalist. First, the Heath government’s supranationalism opened the UK to a flood of EU legislation, regardless of the inherited rights and liberties of the people of the United Kingdom. By contrast, the German Constitutional Court stood watch over Germany’s democratic rights as laid down in the 1949 Basic Law. The difference in the public’s support in both countries for the EU is evident: there is solid support for European co-operation in Germany and for the elaboration of a European peace system, which respects the constitutional democracies of the member states. In the UK, there has been an ever more bitter opposition, first to “Brussels”, and then to “Westminister”. The main focus of Farage’s attack on the UK’s EU policy is that the UK is no longer self-governed. It would not be credible for a German politician to make the same point in Germany. And yet in the UK, in the 2014 elections to the European Parliament, UKIP won 27% of the vote, and since then is eating into Labour, Conservative and Liberal support. Farage’s claim that the UK has been sold down the river has very strong traction.

The second point is that this account of the UK as the EU’s prime supranationalist member state highlights the bizarre nature of the debate in the UK media on the EU. Since the late 1980s, at the latest, the pundits of the UK media have been pleased to divide the UK population into two, with a large group of undecided in the middle. On the one side, stand the “pro Europeans”, who claim to talk on behalf of an EU as if it were just about being a market of 500 million consumers. They are nicely represented, say, by Nick Clegg, who in his debate with Farage argued that exit from the EU would endanger jobs, whereas Farage was talking about who governed the UK. On the other side of this false dichotomy are the “Euroskeptics”, derided for their “little Englander” approach, their “narrow nationalism”, or their hostility to wogs. But the idea that skepticism should be amiss in discussing political matters is more than slightly odd: it is positively dangerous. Skepticism is a pre requisite for a free debate and a contestation of ideas; belief is the suspension of reason. It is what Big Brother recommends.

The third point is that the extremism inherent to UK’s entry to the EEC, now the EU, is presently driving it to the exits. Take the case of immigration. There has been a major influx of working people from the EU, but also of relatives of people already here, but hailing from the sub continent. Farage chose immigration, not as some would have him, because he is racist: he denies it, and there is no reason to think that he is not sincere. He chose immigration because he realized that this had become a major topic of concern, which successive governments had failed to address for multiple reasons: they believed in the benefits of immigration; they feared to be branded as anti-foreigners; they no longer bothered to listen to the UK electorate. And he chose immigration as a subject because the UK establishment, bound hand and foot to its view of a supra national Europe and to the supremacy of EU law over national law, had no policy on the subject. By its own definition of the EU, it had to go to “Brussels” to beg for exemptions, for understanding. There was no robust defense of the prime duty of government to foster the democratic rights of UK citizens, as exemplified in the rulings of the German Constitutional Court.

Fourth, Farage’s real enemies are not in “Brussels”. They are in Westminster. There can be no better illustration of this than President elect of the Commission Juncker’s visit to the UKIP group of MEPs. Here is the YouTube film of it. (https://www.youtube.com/watch?v=b5NqQKwBDjk) There are two points worth pointing out here: Juncker points out that he has never been a supra nationalist, he does not believe in the United States of Europe, he wants a Europe grounded on the identity and institutions of the member states, and that he did not campaign in Britain. The reason was that he did not have a brother party in Britain, hardly surprising since in the UK context, he would find himself lost. The anti Europeans there are with him in opposing a United States of Europe and want national states to be the foundations stones of European constitutional democracies, while the pro Europeans talk  supra nationalism-the “internal market”, the supremacy of EU law, the importance of asking permission from “Brussels” about almost anything. The second interesting point worth making is that Farage at the end puts words in Juncker’s mouth that he never said. He needs a supra nationalist as his foe, because that is his foe. But the foe is in Westminster, and only partially in “Brussels”.

Fifth, “Brussels” is the clearing house for European affairs. It is not the only one, but it is the location where European diplomacy, no longer just about foreign affairs, but about the domestic affairs of the member states, is conducted. It is conducted by the member states, the most powerful of which is Germany. As former Commission President Prodi pointed out in a recent interview, if the UK leaves the EU, the result will be German hegemony on the continent. (http://www.telegraph.co.uk/finance/economics/11250994/Britains-EU-retreat-means-German-hegemony-warns-Prodi.html?fb)

“France is ever more disoriented and Britain is losing power by the day in Brussels after its decision to hold a referendum on EU membership,” he said. “All the countries that previously maintained an equilibrium between Germany, France, and Britain (from Poland, to the Baltic States, passing through Sweden and Portugal) are regrouping under the German umbrella,” he told the Italian newspaper Il Messaggero. Germany has become, Prodi adds, the referee of Europe. In other words it is not “Brussels” but Berlin that pulls the strings in Brussels.

Sixth, this is the main reason for staying in the EU. For all the efforts to create a “new Europe”, based on the formal equality of states, operating under agreed rules and regulations to settle differences, the Euro crisis has revealed the  underlying political structure of Europe, and not just of the EU.  That structure’s key feature is the primacy of Germany in a reconstituted balance of power, where the smaller states, as Prodi emphasizes, are regrouping around Germany. But for the UK to stay in the EU, it must do so on a sound political and economic basis. Both leave much to be desired. But both can be addressed. There are two related steps to take.

First, the UK parliament must rewrite the UK Accession Act, and eradicate Section 2.1. It is a supra nationalist clause which belittles parliament, deprives UK voters of their rights, and leaves the UK wide open to the verdict of judges, whose claims to legitimacy are tenuous to say the least. Section 2.1 can be substituted by reference to the annex in the Lisbon Treaty, which in effect states that the supremacy clause is no more than a convenience, conditional on its applications being acceptable to the constitutions and supreme courts of the member states.

What is more, Section 2.2. gives the Crown in parliament absolute powers, called Henry VIII powers, according to which “Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision—(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised ; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above ; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid. In this subsection ” designated Minister or department” means such Minister of the Crown or government department as may from time to time be designated by Order in Council in relation to any matter or for any purpose, but subject to such restrictions or conditions (if any) as may be specified by the Order in Council.” The British state, to make a complex matter succinct, has the power to rescind or enact whatever it likes.

Second, it follows that the UK has all the necessary powers to redefine its relationship within or outside of the EU. Were the Crown in Parliament to decide one way or the other, we, the public, would be spared  the ludicrous sight of a UK Prime Minister begging “Brussels”(who, pray, do you beg in “Brussels”?) to repatriate powers which no one maintains, other than the perpetrators in Britain of myth of the EU as a supranational state,  is located anywhere else than at home. Repatriation by unilateral act of parliament must be accompanied by a reaffirmation of the UK as a self governing country, with the self confidence to say “No” as an exercise of its sovereignty. But that reaffirmation must also be accompanied by a move to a de facto federal state first, and then to grace the whole with a document, updating the 1689 Bill of Rights, which the Heath government in effect repealed. The UK can only be comfortable in the EU as a self-governed country. The reform begins at home, not in “Brussels”.

[1] Roy Denman, Missed Chances : Britain and Europe in the Twentieth Century , Cassell, London, 1996. p.2. The book is extremely contentious : for instance, it declares that the UK pulled the rug from under the Weimar Republic of Bruning, whereas Adam Tooze in The Deluge : the Great War and the Remaking of Global Order, 1916-1931 (London, Allen Lane, 2014), lays much of the blame for the great depression squarely at the foot of Bruning, and his disastrous economic policies, not dissimilar to Germany’s since 2010.

[2] Stephen George, An Awkward Partner: Britain in the European Community, London, Oxford University Press, 1998.

[3] House of Commons, Voting Behaviour in the EU Council, SN/1A/0646.

[4] The classic statement on representative government is Edmund Burke’s speech to the Electors of Bristol, http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html)

[5] See for example Gordon Brown (ed) The Red Paper on Scotland, EUSPB, 1975

[6] Source of English translation: “From Confederacy to Federation – Thoughts on the Finality of European Integration. Speech by Joschka Fischer at Humboldt University in Berlin, May 12, 2000.” Berlin: Auswärtiges Amt (The Federal Foreign Office). Available on http://www.auswaertiges-amt.de/www/de/infoservice/download/pdf/reden/redene/r000512b-r1008e.pdf.

[7] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal of the European Union, 2008/C 115/01.

[8] Federal Constitutional Court – Press office Press release no. 72/2009 of 30 June 2009, Judgment of 30 June 2009 Act Approving the Treaty of Lisbon compatible with the Basic Law; accompanying law unconstitutional to the extent that legislative bodies have not been accorded sufficient rights of participation

[9] Joachim Jahn, « Vereinigte Staaten von Europa wird es nicht geben », Interview with Paul Kirchhof, Frankfurter Allgemeine Zeitung, June 30, 2009.

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About Jonathan Story, Professor Emeritus, INSEAD

Jonathan Story is Emeritus Professor of International Political Economy at INSEAD. Prior to joining INSEAD in 1974, he worked in Brussels and Washington, where he obtained his PhD from Johns Hopkins School of Advanced International Studies. He has held the Marusi Chair of Global Business at Rensselaer Polytechnic Institute, and is currently Distinguished Visiting Professor at the Graduate Schoold of Business, Fordham University, New York. He is preparing a monograph on China’s impact on the world political economy, and another on a proposal for a contextual approach to business studies. He has a chapter forthcoming on the Euro crisis. His latest book is China UnCovered: What you need to know to do business in China, (FT/ Pearson’s, 2010) (www.chinauncovered.net) His previous books include “China: The Race to Market” (FT/Pearsons, 2003), The Frontiers of Fortune, (Pitman’s, 1999); and The Political Economy of Financial Integration in Europe : The Battle of the Systems,(MIT Press, 1998) on monetary union and financial markets in the EU, and co-authored with Ingo Walter of NYU. His books have been translated into French, Italian, German, Spanish, Chinese, Korean and Arabic. He is also a co-author in the Oxford Handbook on Business and Government(2010), and has contributed numerous chapters in books and articles in professional journals. He is a regular contributor to newspapers, and has been four times winner of the European Case Clearing House “Best Case of the Year” award. His latest cases detail hotel investments in Egypt and Argentina, as well as a women’s garment manufacturer in Sri Lanka and a Chinese auto parts producer. He teaches courses on international business and the global political economy. At the INSEAD campus, in Fontainebleau and Singapore, he has taught European and world politics, markets, and business in the MBA, and PhD programs. He has taught on INSEAD’s flagship Advanced Management Programme for the last three decades, as well as on other Executive Development and Company Specific courses. Jonathan Story works with governments, international organisations and multinational corporations. He is married with four children, and, now, thirteen grandchildren. Besides English, he is fluent in French, German, Spanish, Italian, reads Portuguese and is learning Russian. He has a bass voice, and gives concerts, including Afro-American spirituals, Russian folk, classical opera and oratorio.
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