Sovereignty and the EU

The European Union flag

Our new sovereign?

Nosemonkey is one of the more sensible EUphiles in the UK blogosphere—not only can he write (having spent most of his life doing so professionally) but he is also a historian by training and, as such, not only has an excellent grasp of British institutions but the ability to research and distill grand concepts into readable prose.

Whilst I share his cynicism about our Parliament and democracy, I do not share his professed faith in supranational governments—which is, fundamentally, why we disagree on the EU (and the UN and any other supranational body).

However, Nosemonkey’s posts are always worth reading—especially as a counterpoint to my own EUscepticism. Given my post of Wednesday , it is only right that I should point you to Nosemonkey’s long but erudite deconstruction of the Coalition’s European Union Bill —which kicks off with Nosemonkey’s own interpretation of Cameron’s tactical strategy.

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…

It may well be true that the above theory is, in fact, Cameron’s strategy. However—and I hope that you will forgive my cynicism—but Nosemonkey has posited this type of thinking before, and the flaw in it is the same as now: it very much depends on the government having the desire or the will to “bargain” with the EU in the first place.

After all, we have seen Cameron’s bargaining skills in action over the EU budget: in return for greater EU control over the City’s financial sector, Dave negotiated a smaller than proposed increase in the EU budget. However, as regular EU observers will know, the budget went through precisely the same sort of horse-trading as it does every time and, just like every other time, about half of the proposed increase was adopted.

Even if Cameron’s negotiation did reduce the budget increase by a few billion—which, given that the other Member States (except Germany) are all in financial straits at least as dire as ours, is unlikely—allowing EU QUANGOs control over Britain’s financial sector will, I guarantee, do far more damage to our economy than the few billion pounds shaved off our EU contributions.

Of course, if Nosemonkey is right, it may be that our Prime Minister’s resolve to pass the European Union Bill was stiffened by his utter failure to stop either the budget increase or the EU oversight of our private financial institutions—in which case, I would hope to see Cameron start to play hardball.

I’m not holding my breath.

And neither, it seemed, was EUsceptic MP Bill Cash who— during the first reading of the Bill —tabled a series of amendments to the Bill designed to protect British sovereignty by locking the government down to a series of rather less nebulous strictures. And it is here that Nosemonkey’s post becomes really interesting as he discusses the history of sovereignty in this country, the current legal state and what Cash’s amendments were really designed to do.

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 even the Parliament Acts of 1911 and 1949, all of which have (to a greater or lesser extent) curtailed the ability of the House of Commons to do what it likes.

Now, many people might argue that this most definitely a good thing, but it is worth understanding precisely how Cash’s amendments bear upon the current situation—because Parliament has never been sovereign. In fact, it is the sovereign—that is, the Crown represented by the monarch—that is sovereign in this country.

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”.

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.

Indeed. And, as Nosemonkey subsequently argues, what Bill Cash’s amendments really sought to do—whether knowingly or unknowingly—was to guarantee Parliamentary absoluteism—or, more specifically, the absolute and unchallengeable power of the House of Commons . And I suspect that most of us would rather that so much power was not concentrated in one place—especially given the low calibre and high corruptibility of most of the Commons’ occupants.

However, is it true that our government—whether you believe its ultimate power to reside in Parliament (both the Commons and the Lords) or in the Crown—is actually shackled, in terms of sovereignty, by our membership of the EU? Well, yes.

However, it is also true that our Parliament does remain sovereign in one crucial aspect…

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.

Which is, of course, absolutely correct. And so the whole sovereignty debate really hinges on one crucial question: does EU membership benefit Britain more than being outside the EU (or in some looser framework such as EFTA)?

Nosemonkey thinks that it does: I, however, do not (although the reasons for my opinion will have to wait for another post).

Regardless of how we proceed, I urge you to read Nosemonkey’s piece in full ; for it is absolutely crucial that any changes that we propose are advocated from a platform buttressed by a full knowledge and understanding of our current situation and of the implications of any legislative proposal. And I think that a House of Commons wielding absolute power is most certainly not a position that any libertarian would wish to see.

Further, from the point of view of realpolitick , any proposed withdrawal must be bullwarked and bolstered by a real vision for how a currently faltering Britain would shine and prosper outwith the equally sclerotic European Union.

About Jonathan David

Jonathan David is a software designer, product manager, libertarian and atheist who, although originally of Celtic extraction, now lives and works in the wilds of Surrey.