Robin Niblett is an ardent promoter of Remain, evident in his latest pamphlet from Chatham House, as the Lib Dem think tank in London is called. I summarise his argument, and then make some critical points.
Niblett on sovereignty.
In this new contribution to the debate, he argues correctly that “the question of sovereignty lies at the heart of the UK’s upcoming EU referendum.” “Many in Britain, he continues believe that the process of EU-decision making has undermined parliamentary democracy and that leaving the EU is the only way for the British people to regain control of their sovereignty”.
“This ignores the fact”, he goes on, “ that successive British governments have chosen to pool aspects of the country’s sovereign power in the EU in order to achieve national objectives that they could not have achieved on their own, such as creating the single market, enlarging the EU, constraining Iran’s nuclear programme, and helping to design an ambitious clilmate change strategy”.
The British economy, he maintains with some justification, has prospered in the EU. Its growth rates are higher than most developed economies; it attracts the most foreign direct investment in the EU, is ranked very high on the World Bank’s index for ease of doing business, and is ranked among the most open places to do business in the developed world.
Pooling is good for you.
Continuing to pool sovereignty selectively in the EU would enable the UK to help design integrated EU responses to the many challenges confronting us: energy security; environmental issues; internet governance; dealing with a more assertive Russia; the fight against terrorism. And he ends on a flourish: in today’s more interdependent world, the notion of “absolute” British sovereignty is illusory. It is also worthless of it limits the ability of future British governments to ensure the prosperity and security of their citizens.
His conclusion: the opportunities from remaining in the EU far outweigh the risks of doing so, and the risks of leaving far outweigh the opportunities.
This is as coherent an exposé of the official UK position as one is likely to get. The tone is rational throughout; the author resists any temptation he may have had to label his opponents, swivel-eyed; and he swings through his argument on a tide of what he clearly considers to be self-evident statements about Britain’s best interests. The only hint of de haut en bas condescension is when he talks about the substance of his argument: sovereignty.
At its most basic level, he writes, sovereignty is the legal status that all states possess when they are recognized by their peers through the United Nations, reflecting their jurisdiction over a territory and the permanent population living there. But he goes on, warming to his theme, sovereignty is not the same as having effective power to control the forces that can effect a country’s security and prosperity. States, like the UK, join international organisations, such as NATO, the WTO, the WHO, and thereby place voluntary constraints on their sovereignty, the better to deal with cross-border challenges .
And that is where he makes his first major error. The idea of absolute sovereignty, he argues, resonates powerfully in Britain. In no way does the unwritten UK constitution assert absolute sovereignty, either the Crown over parliament, or parliament over the courts, or the courts over the country. Since 1689, the powers of the Crown have been formally limited; parliament recognizes that the government of the time does not speak truth ex catedra, hence the regular parliamentary work of debate, votes, elections, and alternance. The courts have appeals mechanisms against their own verdicts. Only in extreme cases, of war or when all appeals have run their course, does the full force of Her Majesty’s government come to bear.
Indeed, the hard sovereignty underlying the relevant clauses in the 1972 European Communities Act state in the so-called Henry VIII clause that the British government can exercise its right to absolute sovereignty over territory and people, if it considers the circumstances appropriate. But this is in extremis. It is not a reasonable description of the UK’s approach to membership in the EU.
By contrast, as I have written in this blog, Section 2.1. of the ECA makes as clear as a bell that EU law prevails over UK law in all areas relating to the Treaty. Those areas have hugely expanded since 1972, so that EU law impinges on an ever wider range of policies. The UK position on the EEC/EU was and is supportive of the supra nationalist view of the EU. And particularly as regards the single market and the policing of it.
Niblett is correct to point out that this supranational strand of UK policy on the EU rubs up against the centuries-old UK parliamentary system. The Westminster system of parliamentary democracy-it is worth adding where dukes and dustmen have only one vote each- gives the elected majority of members of parliament the right to create a government that “dictates”, I would say shapes, the domestic political agenda. Parliament can pass any law it chooses(but it chooses with an eye on the possible), and repeal the laws of any previous parliament-a sensible proposition if you think about government as learning by doing. The British people then have the right to dismiss that majority in the next election if they are dissatisfied with their performance.
This explains, Niblett writes, why membership of the EU has become the focus of such an emotive debate about British political sovereignty. Note please the smooth switch from the voice of sweat reason, naturally espoused by Niblett, and the epithet “emotion” when it comes to arguing the case of parliament.
This is par for the course for Remainers: they define themselves as eminently rational, open to trade and immigration, welcoming to foreigners, pro inward investment, ready to circumscribe parliament’s powers for the benefits of international co-operation, security and economic well-being in the complex globalized condition in which we all live. The Leavers,in their book, if not swivel-eyed, flirt with isolation, and at worst are just straight racist. This labeling has been brilliantly depicted by Peter Brookes, the London Times cartoonist, in the edition of June 16, 2016. On the coin is the crowned head of Nigel Farage, the UKIP leader, with a cigarette hanging nonchalantly from lip, and the inscription: Rex Nigel: Bugger Off Johnny Foreigner, 2016.
The Financial Times’ George Parker is just as explicit as Niblett. In “A fight for hearts and wallets”, Financial Times, June 26,2016, he writes, the referendum is “a struggle between a traditional economic argument and a campaign based on populist assertions and identity”.
And yet Niblett goes on to admit that compared with obligations under other international bodies, membership of the EU impinges on the broadest range of policy areas with the most formal decision-making and legal structures to ensure that members abide by its rules. Wherever it has been agreed, he writes in reference to ECA Section 2.1. , EU law takes precedence over national law. Pooling sovereign power, he goes on, has imposed real limits on the UK system of parliamentary democracy.
There are a number of points to make here.
- First, he writes, this is a decision taken by successive British governments to help open up the EU economies, in effect into something very close to being a free trade area. That is true but then reference to the UK’s membership of other international organisations is besides the point. NATO does not entail an automatic duty to go to the defence of another member state; the US Congress insisted on asserting its constitutional powers by insertingArticle 5, which gives discretion to member states to decide. NATO is not supranational. Nor is the WTO. Nor is the WHO. The EU is, and as this referendum demonstrates the voters of the UK are only too aware that their government thinks that the sacrifice of parliamentary powers is worth it. The trouble is that million of UK citizens do not agree. Here is a letter to the Daily Telegraph, succinctly argued with discrete emotion: DT June 21.SIR – It strikes me that many people are amazingly casual about the foundations of our freedom.I do not view an elected Parliament, a unifying Crown and an independent judiciary as mere abstractions. My grandfather fought in the First World War, my father in the Coldstream Guards. His only brother died in a Japanese camp, and my husband was killed while on active service in the RAF. Freedom comes at a cost.I appreciate that many others have made a similar sacrifice, but will not be drawing some of my conclusions regarding the referendum vote on Thursday.I know that they do so in good faith. For my part, allowing an unelected jurisdiction to impose laws on us or to supersede our legislature is a violation of our sovereignty.
- Second, having argued that the EU is supranational, that the ECJ’s verdicts override national laws, and that those powers are expanding, Niblett writes that the British government still determines the vast majority of policy over every issue of concern to British voters-including health, education, pensions, welfare, monetary policy, defence and border security. He goes on to maintain that the UK controls 98% of its public expenditure. In other words, the EU is intrusive, but not very much. This is of course highly questionable: estimates of how much law emanates from Brussels varies from 10% to 70%. The House of Commons Library concluded that “it is possible to justify any measure between 15% and 50% or thereabouts”. This is a very wide spectrum,. In the case of immigration, chosen by Nigel Farage to illustrate that the UK is not in charge of its own borders, the EU-courtesy of ECA 1972 Section 2.1.-controls 100% of policy. Cameron has been unable to answer otherwise.
Immigration and the Euro
Niblett selects out two key areas of policy for more extensive comment: one is immigration and the other is the Euro.
On immigration, he asserts that overall the high immigration has been beneficial , though he admits it has exacerbated pressures on public services, may have restricted wage growth in some sectors and is a source of widespread public concern. Given the commitment in the EU to free movement of people as a pillar of policy, he admits that remaining in the EU would mean that high levels of migration will persist. And he adds, there is no chance whatsoever of Turkey joining the EU in the foreseeable future.
So his verdict on immigration is to tell the plebs to put up and shut up. And on Turkey, he is making a confident prediction about a future which he only can know through a dark glass.
On the Euro, he argues that the UK has no reason to fear the emergence of a more integrated Eurozone. The reason he gives is profound differences in national outlook among the key members, especially Germany, The Netherlands, France and Italy. This is definitely the case now. France and the southern member states have experienced 6 years of depression imposed by Berlin. No amount of special pleading can ignore the fact that Germany is on top; in effect, champions a Europe of the states; its big corporations favour reaching accord with Russia despite Russia’s invasion of the Ukraine; and judged by the surge in “populisms” across Europe, Europe is in deep trouble. None of this gets aired by Niblett. The talk is about the EU, not Europe.
He remains on the “EU level”: EU decision-making is becoming more intergovernmental rather than centralized, a point that hugely understates the self aggrandising judgements of an ECJ, which acts as the EU’s supreme court, even if it has no treaty powers whatsoever to do so.
Is it worth, he asks rhetorically, returning economic and political sovereign power to Westminster? His answer is a firm negative, for the following reasons:
- The UK would be excluded from the rule-writing process in Brussels, making it a less attractive location for foreign investment
- The UK is unlikely to strike better trade deals on its own, than it has currently through the EU.
- The UK would have no say in the future design of more open EU markets, for instance, in digital, financial and other services.
- Leaving would help to destabilise the rest of the EU
So what can I add? Wrong on 1: the UK would rejoin the WTO, a key rule writer; questionable on 2: not least because trade without deals is widespread; true about 3; and quite possibly true about 4.
The bottom line of Niblett is that parliamentary sovereignty is a myth, whereas it is the very heart of UK constitutionalism. There is nothing “emotional” about this: it is recorded in the works of Blackstone, Burke, Bishop Stubbs, Maitland, Keir and the more recent exponents of the workings of the UK constitution.
Ever since Prime Minister Heath agreed that the UK accept the EU as a supranational entity, whose rules, regulations, directives and policies override national law, there has been severe opposition, varying over time, but constant. The reason is that supranationalism allows the Whitehall knights to join with supranational forces in Brussels, and thereby fundamentally alter the balance of forces in the UK constitution in favour of the executive.
If the executive had a great record, as Niblett suggests it has, there might be acquiescence. But that is not how millions in the UK see things. Policy remains highly controversial, however rationally presented, and always emotional, given the stakes.
That is the stuff of democratic politics. In the UK, politics is a high wire act, accusations, innuendoes, pathos and structured arguments are barely distinguishable. That is how it is, and how it has been—for centuries. Yet the EU was designed to take politics out of politics, as the late Peter Blair has cogently argued. See my review of his important book: https://storybookreview.wordpress.com/2014/02/15/european-social-democracy-facing-the-void-in-an-age-of-austerity-book-review/ The widespread fear is that as the EU expands its own mandates, it will take the controversy out of UK politics. It will become bland, like Niblett.
If Bremain wins, and if it wins it looks as though it will be a hairsbreadth, Prime Minister Cameron will have a mandate to consolidate the UK’s special status in, but not of, the EU. If Leave wins, also by a hairsbreadth, we may well see the Remainers, who so belittled parliament’s powers, arguing that the referendum is only advisory, and that the UK’s constitution is one of representative government. Since a large majority of MPs are for Remain, the policy would then be also to provide a mandate to confirm a special UK status in but not of the EU. In other words, they would be asserting parliamentary sovereignty.
The paradox is that the gap between Remainers and Leavers is wafer thin, in effect. The wafer is about parliament’s powers.
Either way, and if the denizens of Whitehall and Westminster can raise their heads above their debates–the UK has a mandate to campaign for a complete revision of the EU.
The 5 Presidents Reports wants the next steps to a federal superstate. Yet Pew opinion polls records that 62% of French people are hostile to the EU. The UK is at around 45% hostile, like Spain, Italy etc. The likelihood of a big leap being made is difficult to evaluate; what is assuredly not difficult to evaluate is a Big Leap chance of success, particularly in making life better for people than for the project.
My proposal is that the UK take the lead to refound the EU as a European alliance of sovereign constitutional states. This alliance has four principles: it is rooted in the primacy of national parliamentary government( ie that lawmakers are sanctioned by electorates); the supranational components of the EU are strictly delimited to the market and its policing(this includes minimal standards); foreign policy and security remain firmly in the realm of cooperation; there is a presumption of European loyalty. We have to evolve a European regime that accounts for the diversity of the European reality. Excessive and rigid straitjacketing member states against their national opinions is a very dangerous path to pursue.
As it is, the EU is a fair weather arrangement. It is not rooted in the deep consent of its peoples. We are now in the sixth year of depression. Radical movements are popping up across the continent. In case anybody missed the news, one poll in Germany has ten percent of the population wishing for Hitler to return-that is 8 million people! The UK has to champion a European alliance of constitutional states.
There will be much pooh poohing of this idea. Its not possible. The future of Europe is federal. We can’t back down now. What about the Euro, and a host of other objections.
My point is that the Monnet dream of a USE is turning into a nightmare. President of the European Parliament Martin Schulz has referred to the EU now as a Frankenstein Monster. He wants a Big Leap to a federal Europe. I do not think that disenfranchising national electorates is the way forward. A European alliance of constitutional states in a Europe that gives plenty of space for its different components to breathe and evolve at their own pace is the best way forward for Europe, and for the UK.