The time for agnosticism about the EU referendum is over. Those of us who have been sitting on the fence now need to decide which way to vote.
A few weeks ago I was still an agnostic. Not any longer. The weight of Barristerblogger is very modest – but for what it is worth it is now firmly behind the Remain campaign.
I have great personal respect for many, though not all, of the Leave campaigners but I think they have lost every important argument.
The economic arguments – important though they obviously are – are perhaps not decisive. The EU has hardly provided a model of good economic management and in the long run, who knows, we might well be richer outside. Norway and Switzerland respectively have the highest Gross National Income per capita in Europe; neither are members of the EU. Yet it would be unwise to assume that the wealth of those countries derives only, or even mainly, from the fact that they are not members of the EU. Switzerland has been one of the richest countries in Europe for well over a hundred years, not least because it managed to avoid involvement in two world wars.1 Norway has been blessed with wealth from vast oil and gas reserves which – unlike many oil rich countries – it has managed not to squander.
The UK economy has become steadily more inextricably entwined with that of the EU over the last forty years and for that reason the uncertainty that a decision to leave would bring could be very difficult to deal with. British companies might find dealing with the EU more difficult, foreign companies might leave or hesitate to invest in the UK without knowing if they would have access to the Single Market. The extent of such problems is unknown: that there would be some is surely undeniable.
For many Remainers, all Leavers are “Little England isolationists.” There are no doubt some who meet that description, but the more persuasive ones do not. Gisela Stuart, for example, speaks persuasively of the need for more, not less internationalism. The EU, she says is old fashioned; the world has fundamentally changed since its inception:
“This is a modern networked world, where regulation must be agile and government must be open, flexible, inclusive and accountable. It is also one where large bureaucracies fail. Political structures such as the EU – centralised, opaque and managed by a clique of bureaucrats and elites – will never succeed.”
The French and Spanish speaking Daniel Hannan, perhaps the most persuasive and energetic of all the Brexiteers, talks constantly of the benefits of free trade; indeed one of his main criticisms of the EU is that it prevents free trade with much of the world.
So the characterisation of all those who wish to leave the EU as “Little Englanders” is unfair.
Their argument is that the EU is itself a protectionist club, and if you believe in free trade you should oppose it. The EU, say the Leavers, is an old fashioned and sclerotic project that has brought misery to much of Europe and without it Britain would be much better off. Boris Johnson recently described the EU as “a graveyard of low growth.”
Attractively though this argument is often put, it is nonsense. Since Britain joined the EU its economic performance has not been bad. In fact, since 1973 when – as the “sick man of Europe” – Britain joined the Common Market, not only has it enjoyed a better economic performance than its European rivals Germany, France and Italy; it has also done significantly better than the freedom-loving, regulation-free, ass-kicking USA that many Brexiteers would like us to emulate. Per capita GDP has grown by 102% since 1973 in Britain, as against 97% in America.
So whilst I do not doubt the sincerity of the Leavers’ belief that the British economy would do better freed of European shackles, I think they are completely wrong. There is a far more powerful economic case for remaining inside the EU that has – at the very least – not prevented Britain from performing better than most comparable countries over the last 40 years.
The British economic success story has been closely linked to trade with the single market. 44.7% of British exports now go to the EU (and another 8% if we include single market members Norway and Switzerland): in purely economic terms it would be deeply reckless to risk damaging that market without a very clear strategy of how Brexit would be managed. There is no such strategy, just an economically incoherent obsession with erecting bureaucratic obstacles to immigration.
The arguments are by now well known. It might be possible to leave the EU, yet remain within the single market. But – if Norway and Switzerland are any guide – that would only be possible (and perhaps not even then) if Britain agreed to join the Schengen agreement on the free movement of people. Since, for many, the single most important reason for leaving is to prevent the free movement of people, that seems a highly unlikely outcome.
The idea that the EU would be bound to offer the UK a favourable trade deal is at best wishful thinking. Faced with the danger of other countries also wanting to leave it is just as likely to drive a hard bargain, pour encourager les autres. At the very least the sunlit uplands of free trade with the whole world will only be reached after years of crippling uncertainty.
It is a pie in the sky argument that the end of free international trade, which may well never be attained, justifies the means, which is an expensive and acrimonious divorce. Most divorces have two characteristics: first, they are always worse than anyone thought imaginable; secondly it is the children who suffer the most. This one will be no exception. If we walk out of the EU it is our children who will pay, with economic stagnation and unemployment, all the more bitter for having been foreseeable and avoidable.
The Leavers’ economic arguments may be based on optimism, but for most of them the argument is not just, or even mainly economic. The arguments are political.
The central political arguments are these:
- The EU is undemocratic
- The EU has removed sovereignty from the UK Parliament
The arguments are linked.
The Leavers’ are right. The EU falls very far short of being a perfect democracy.
It is not alone in that. Democracies are always imperfect.
For a start, democracy in practice is almost always indirect. Direct democracy, in which every citizen can participate in every decision, is both unworkable and undesirable. In Britain, in distinction from most countries with a Presidential system, the executive is not directly elected: some Government ministers are not even elected at all.
The governance of the EU is not just lacking in democracy, it is also complicated and opaque.
The first important point is that it does not have power to make laws about anything it wants. Its area of “exclusive” competences are:
- the establishing of the competition rules necessary for the functioning of the internal market
- monetary policy for the member states whose currency is the euro
- conservation of marine biological resources under the common fisheries policy
- concluding certain international agreements
That said, the EU also has powers to legislate in many other areas (of “shared competences” in the jargon), although here Britain has negotiated some important “opt outs,” for example on “freedom, security and justice.”
They certainly are not trivial powers and they have had huge effects on the lives of millions of people, but they still fall a long way short of giving the EU power over most aspects of our life. The core of EU law is directed towards regulating trade within the single market. If you are going to have a single market there is a need for common regulations about trade; and if there are to be common regulations there has to be some sort of supranational authority to make them. Without some such authority it is hard to see how the EU, and certainly not the single market, could function in anything like its current form. On many important issues: education, social services, health, most criminal law and most taxation, decisions are taken largely, or entirely at national level. Britain, with its various opt outs, and sitting comfortably outside the Eurozone, has considerably more autonomy than most other EU countries.
What about spending our money? Again, it is easy to exaggerate how much it costs. In 2015 the EU’s total budget was about £128 billion: by comparison in 2014 – 15 total UK spending was nearly 6 times that at £735 billion. Despite being the fourth biggest net contributor to the EU, the UK pays just 0.6% of its Gross National Income to Brussels. Largely thanks to Mrs Thatcher, this is by some way the smallest proportion of GNI paid by any EU member. In 2014 the UK paid a net contribution of £9.9 billion, a large enough sum of money to be sure, but still representing only just over 1% of total public expenditure.
Back to the question of democracy.
The EU “executive” is made up of Commissioners, who are appointed by the national governments, and ministers from the member countries who take decisions through the Council of Ministers. The European Parliament – it’s not entirely accurate to call it a legislature – is elected, but its powers, though much greater than they were, are still rather feeble. However, it can (and does) scrutinise proposed legislation. It also possesses power, which it has occasionally exercised, to dismiss the entire Commission, which provides at least an element of democratic accountability. Participation in European elections is generally low throughout Europe: in the UK it hovers around 35%, roughly the same level as vote in most local council elections. In Europe as a whole the trend has been for the turnout to fall over the last twenty years.
Leavers are entirely correct to complain that there is a “democratic deficit” in these arrangements. Part of the difficulty is that whenever anyone proposes to remedy that, for example by giving the EU a directly elected president, the first people to object have been the very same ones who complain the loudest about its lack of democracy. They perceive that increasing democracy in the EU would in all probability lead to increasing its power. So it is stuck with a cumbersome system of government which is neither very democratic nor very powerful.
But whilst it is not very democratic (at least when measured against some democratic ideal) nor is it remotely despotic. Rules on qualified majority voting amongst the Council of Ministers, the increased power of the European Parliament, and an effective European Court of Justice means that the EU is unable to take any decisions at all unless they are supported by broad consensus among national governments and European Parliamentarians. There may sometimes be a consensus to take the wrong decision, but no political system can altogether avoid the possibility of error.
How important is the EU’s lack of democracy? Most written democratic constitutions – that of the United States is an obvious example – deliberately include undemocratic elements. As the American founding fathers recognised, untrammelled popular rule can trip over into tyranny, and restraining democracy with legal rules can be a conscious decision to reduce that risk. To take two examples from the US constitution: the President is chosen not by popular vote, but by an electoral college made up of representatives from the states of the Union; as a result George W. Bush became President in the 2000 election despite having won half a million fewer votes than Al Gore. US Supreme Court judges, who have enormous power, including the power to overturn statutes, are unelected, unaccountable and for practical purposes unsackable. These are indeed democratic deficits, but are not necessarily to be condemned for that reason. Indeed, as we contemplate the possibility of Donald Trump being swept to power on a wave of popular support many will be thankful that there are undemocratic forces that will limit his freedom of action.
The British constitution also includes a number of undemocratic elements, although these have evolved by accident rather than design.
Our judges have considerable power, yet they are all unelected. There is very little political pressure to change that.
The House of Lords is unelected except for a small rump of its members who are chosen in a bizarre poll of hereditary peers. There is some pressure to change the way its members are selected but as nobody can agree how it may never happen.
If we are going to criticise EU law-making as undemocratic, it is instructive to see how it compares with our own.
Leaving aside the contribution made by the unelected House of Lords and the judges; ignoring the fact that our electoral system is capable of producing grotesquely unfair outcomes; huge swathes of UK law are made in a way that is profoundly undemocratic in substance, even if cloaked in the camouflage of democracy. It is common, for example, for Acts of Parliament to confer enormous powers on ministers (who are themselves either indirectly elected or in the case of members of the House of Lords not elected at all) to make regulations. They are often called “Henry VIII clauses,” although historically that is a bit unfair on Henry VIII.
Take, for example, (there are plenty of others to choose from) the Childcare Act 2016, a short statute doing little more than impose a general duty to provide childcare for working parents, an admirable objective no doubt. It does so, as Lord Judge, the former Lord Chief Justice pointed out in a fascinating lecture at Kings College London last April, by including:
“eleven specific regulation making powers, including regulations to confer powers on Revenue and Customs, regulations to create criminal offences, regulations to impose financial penalties, and indeed identifies the relevant level of sentence.”
On top of all this the Act also confers powers on ministers to make regulations to:
- amend, repeal or revoke any provision made by or under an Act (whenever passed or made).
Read that carefully; yes, it really does say a minister can “amend, repeal or revoke any provision made by or under an Act (whenever passed or made).” And it actually means what it says. Lord Judge returned to the theme in the House of Lords last week (people should have been listening to him but probably weren’t):
“Why should Parliament—both Houses—dish out powers to a future Executive of any political colour, elected by a view of the country that is taken at a particular time, to dispense with a statute? We do not know what lies ahead. We must not sit back and say, “This is England, Ireland, Scotland and Wales; we are all very civilised. We will never end up with the sort of Government who might misuse their autocratic powers”. Well, we might. Democracy works in funny ways. Austria came very close very recently. One must not ignore these things.”
The democratic camouflage is that a draft of any of these regulations (known as “statutory instruments”) must be laid before each house of Parliament before they become law.
The reality is that in practice statutory instruments are barely scrutinised by Parliament at all. Many do not even need to be laid before Parliament. Since 2009 nobody seems to have actually counted the number passed, perhaps because to do so would render anyone attempting the task insane; before that it varied between about 11,000 and 13,000 pages every year. It is probably more now. They are drafted by (unelected) civil servants. Practically all of them are very boring, some are inconsequential but some are of huge importance. They can (and often do) force people to do things that they would much rather not do, and many of them create criminal offences with potentially lengthy gaol terms. They may be deathly dull, and compared to primary legislation, they excite virtually no interest from the public or even parliamentarians, but they matter. For practical purposes they are far less scrutinised than EU legislation.
Since, say, Mrs Thatcher became Prime Minister, how many of these instruments have been rejected by the democratically elected House of Commons? Several hundred perhaps? 40 or 50? Or just a few?
The answer is that since 1979 the House of Commons has not rejected a single one. Such scrutiny as there has been has come from the (undemocratic) House of Lords which, since 1968, has rejected six, an average of just over one per decade. And despite the warnings of Lord Judge and others Parliament continues to churn out legislation giving vast powers to future governments, including the power to amend or repeal actual legislation. If that is democracy, I think I prefer the EU version.
Of course just because our domestic law-making is undemocratic that doesn’t mean a lack of democracy is acceptable in the EU. But simply to say that the EU is “undemocratic” is not, in itself, to say a great deal. The same can be said than our own domestic constitution, or of that of many other democracies. These things are matters of degree.
And it is not it true that the EU legislative process is entirely undemocratic. Whilst all EU legislation is proposed by the European Commission (the members of which are not elected but appointed by national governments), those proposals are scrutinised by the European Parliament and must be approved by the Council of Ministers, the members of which are at least accountable to their respective nations. There is no avoiding the fact that it is a highly filtered and often indirect version of democracy, but it is arguable that it is at least as democratic as the British version of issuing statutory instruments, drafted by “non-elected” civil servants and virtually ignored by MPs.
This is a word often invoked by Brexiteers, but we have to be clear what it means.
To possess sovereignty means to possess power or autonomy over something.
In this context it is generally used to mean “Parliamentary sovereignty,” or the doctrine that Parliament has the capacity to make any law, and that any such law will then be enforced by the British courts.2 It is a peculiarly British concept. Almost all other countries have written constitutions which, like the US Constitution, place legal limits on the sovereignty of their legislatures. That is one reason why Congress could not make an enforceable law reintroducing slavery – it would be struck down by the “unelected judges” of the Supreme Court; whilst the Westminster Parliament could.
The Brexiteers central argument is that while we remain in the EU laws made in Westminster can be over-ruled by laws made in Brussels, and that, as a result the UK Parliament is no longer sovereign. Their premise is largely correct but their conclusion is wrong.
Since the enactment of European Communities Act 1972 and the decisions of the European Court3 and the House of Lords4 in the well-known case (or strictly cases) of Factortame, it has indeed been established that in normal circumstances, if Parliament enacts a law that is incompatible with EU law, it is EU law that will prevail. Does this mean that Parliament has lost the capacity to make any such law, and thus its sovereignty?
On the contrary, it means no such thing. Rather, the effect of the European Communities Act was for Parliament to delegate some of its power to the EU. Just as any number of Acts of Parliament delegate the power to make regulations to ministers or local authorities, so the 1972 Act has delegated powers to make law to EU institutions.
A delegation of powers is not the same as a surrender. It is temporary, reversible and by definition involves no loss of sovereignty. Parliament retains the power to regain the delegated powers; should Parliament repeal the Act then (whatever international implications there might be) EU law would no longer over-ride any conflicting British law. Sovereignty has not been surrendered. Indeed, if it had been, the current referendum would be pointless.
I have been reading Timothy Snyder’s astonishing and disturbing book Bloodlands which deals with the fate of Eastern Europe – in particular Poland, Byelorussia, Ukraine and the Baltic states, that he calls the “Bloodlands” – in the 1930s and 40s. I cannot recommend it highly enough. Anyone tempted to be complacent about, or to scoff about the risks of another European war should read it.
The EU was founded quite consciously as a means of making war in Western Europe inconceivable.
It has succeeded. Europe’s seven decades since 1945 have been incomparably more peaceful than the seven, or even ten, before that. We have enjoyed unprecedented peace and striking prosperity. For all our problems those of us living in Western Europe have been living in a golden age.
It is of course true that NATO deserves much of the credit. In Stalin and his successors Western Europe faced evil and determined opponents; NATO stood up to them and Communism first crumbled in Eastern Europe and then collapsed entirely in the Soviet Union. It seems at least plausible that without NATO, Communists would today still be in power from Estonia to Bulgaria, if not in Paris and London too. Whether the Russians would have risked a war against the West if NATO had not existed is impossible to know, but as it was it did not do so. The EU had nothing to do with that.
But whilst war with the Soviet Union may have been the greatest threat to peace in Europe between 1945 and 1990, we have too easily taken for granted the fact that for most of this period war between the other countries of Europe was largely unthinkable. Anyone growing up between the end of the eighteenth century and the first half of the twentieth century would have witnessed a succession of European wars: Napoleonic, Franco-Prussian, First and Second World Wars, attesting to the fact that conflict between European states has long been, if not the default state, then at least a highly usual one. Travel a little further back to the seventeenth century, and the Thirty Years War caused proportionately as much slaughter and destruction in much of Germany as did the Second World War in the Bloodlands.
Sadly, Europe has not been entirely peaceful since 1945. The civil war in Yugoslavia, complete with forcible deportations, genocide and starvation sometimes resembled a mini-European war, and current events in the Ukraine – part of Snyder’s Bloodlands – also show that peace can never be taken for granted. Nor do we need to look very far beyond Europe’s borders to find a war being fought today with a brutality that would be envied by both Hitler and Stalin. It would be foolish to say that the EU (or its EC and EEC predecessors) alone have prevented Europe from reverting to its historically normal state of war, but where war has broken out it has not been between EU members.
It was to EU membership that the ruined countries of Eastern Europe aspired after the collapse of communism. Those that have joined have prospered: in the main, the rule of law has developed where there could have been anarchy and economies have been successfully rebuilt from the socialist rubble. The EU has been central to that effort. When surveying the undeniable disaster that the Euro has wrought on Southern Europe, we should not forget that the EU’s involvement in most of Eastern Europe has been a success story.
British exit would produce enormous strains on the EU’s very existence. A recent poll suggested that if Britain leaves the EU a majority of Swedes would wish to do likewise. Dutch and Czech voters too appear to be waiting on the results of the British referendum to demand their own referendums, while the French extreme nationalist Marine Le Pen has promised a referendum in the not inconceivable event of her becoming French President. The prospect of a catastrophic collapse of the EU is real and alarming.
Such a collapse would at least solve the problem of whether Britain should join the single market. There would be no single market. The EU would collapse in the bitterest of recriminations. Protectionism would return. Trade wars would replace the EU’s unprecedented experiment in international co-operation. Russia – already delighted to have acquired access to ports in Cyprus – would certainly wish to pursue “mutually beneficial” operations in Greece, though heaven knows what Faustian bargain they would strike with the bankrupt Greeks.
As by far the largest nation in Western Europe, Germany, almost certainly no longer under the leadership of Angela Merkel, might again start to alarm its neighbours. Border disputes, almost irrelevant in today’s EU, would again be potential flashpoints. With America, perhaps under President Trump, liable at any time to retreat into sullen isolationism how much enthusiasm would there be in this atmosphere for Europe to stand firm when President Putin starts agitating to “protect” the Russian minority in Estonia? How long would it be before, say, Hungary started to complain about Romania’s treatment of Hungarians in Transylvania, or for that matter Germans to complain about Poland’s occupation of its historic territory?
Despite its many faults, taken as a whole the EU has been good for Britain and good for Europe. We should vote to remain.
1See Roman Studer When Did the Swiss Get so Rich? Comparing Living Standards in Switzerland and Europe, 1800-1913. Journal of European Economic History, 37 (2). pp. 405-452. ISSN 0391-5115
2The classic exposition is by Dicey in his The Law of the Constitution (1885): “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament . . . has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
3 ECR I-2433
4 1 AC 603