Written evidence from Professor Ken Minogue,
Professor Emeritus at the Department of Government, London School
of Economics and Political Science
1. I am concerned primarily with Article 18,
which reaffirms the sovereignty of the British Parliament. It
seems to be clear from the submissions of constitutional lawyers
that the 1972 Act by which Britain joined the European Economic
Community (as it then was) did not in itself change the British
constitution. Parliament retains the right to repeal that Act
and to repudiate any Treaty obligations it feels have become unsuitable
to British interests, those interests being understood in the
widest sense. At the same time, there is very considerable discontent
in Britain about the consequences of our membership of the European
Union. The problem to which the Bill responds is thus not legal,
but political.
2. Let me observe about parliamentary sovereignty,
however, that it emerged during the Tudor period in response to
a situation in which society had become so
"legalised" as to limit the possibilities
of various kinds of enterprise that were emerging in a vigorous
and inventive society. In other words, the point of national sovereignty
as it became an emerging feature of a modern state was to enable
the English to repeal restrictions coming to be regarded as oppressive.
England found itself saddled, if I may put it this way, with a
kind of mediaeval "aquis",
and sought to be liberated from it. The legislative power of Parliament,
hitherto used sparingly, came now to be used for the important
task of removing laws without having to violate them. The development
of this capacity of the King in Parliament led on to the 1688
settlement and much that made England a recognised model of a
free country.
3. In the course of the twentieth century, British
democracy as expressed in the sovereignty of parliament has become
extensively restricted by the emergence of a broad movement seeking
to universalise a set of virtues and desirabilities that had long
been established in European states. These virtues and desirabilities
were generally presented as
"rights"—sometimes
"human", sometimes
"universal" or (according to one
philosophical doctrine "natural").
We might call this the globalisation of virtue, and the movement
to develop and extend it might be called
"internationalism." On which development,
two observations should be made:
(a) The codification of the moral life of modern
European states as a set of abstract rights is clearly a vulgarisation,
because it omits other vital elements of the way we live, particularly
duties and obligations, and it has no place for the essential
role in moral thinking of such concepts as integrity and common
sense—or indeed for important moral sentiments such as gratitude.
There is no doubt that the diffusion of such rights to countries
afflicted with despotic and oppressive governments abroad augments
the happiness of the world. There is equally no doubt that the
idea of rights diminishes our own conception of proper conduct
by reducing it to mere obedience to rules - a moral confusion
that has recently surfaced as shared by some members of the House
of Commons.
(b) The second observation is that internationalism
in morality is an ideal promoting the interests of what has often
been analysed as a "new
class" in European societies—a class tending to include
politicians, lawyers, academics, actors, journalists, charitable
workers and others, one of whose notable features is that their
relation to the world of commerce is indirect. Internationalism
is an ideal, and has the rhetorical advantage of seeming to be
morally superior to the mere interests of economic enterprises.
It has, however, interests of its own, and these have been extensively
analysed in the literature of public choice.[36]
4. Internationalism is most commonly expressed
in governments signing up to grandiose declarations of rights,
such as the European Convention Relating to the Status of Refugees
(1951) or the Universal Declaration of Human Rights (1948). In
such declarations we find abstract desirabilities which—were
they actually to be implemented—would impede some of the
nastiness of despotic rulers. But these abstractions are also
designed as guides for conduct in the European societies from
which these ideals originally came. Their interpretation opens
up extensive scope for extending the power of courts and judges.
In this legal structure, there is no place for what a democratic
electorate might want as such an electorate responds to the problems
of terrorism, mass migration, and other difficult issue. Equally,
international moral declarations have no place for repeal or amendment:
who would want to repeal virtue? The eccentric consequence is
that over much of the world, these rights have been ignored by
despotic regimes, while their most evident use in modern Western
regimes has been to extend the rights of citizens to convicts,
illegal refugees who have managed to get into Britain, and to
others on the margins of British life. The recent imposition on
Britain of voting rights for convicts may serve as one example
of many. In other words, the rights of man have, as it were, been
assimilated to what Burke distinguished as the rights of Englishmen
in a way that cannot be challenged by the democracy. It may also
be observed that the abstract character of these rights might
make them universal, above circumstances. It does not. A refugee
in 1951 was very different from a refugee in the twenty first
century.
5. I cite internationalism as a background to
the supranationalism of the European Union, which I take to be
part of the same movement. Both have the consequence of replacing
the power of national sovereignty by that of nationally composite
bodies. In 1972 we became members of the European Economic Community,
a move so far reaching as rightly to be thought to require the
validation of a referendum. That referendum in 1975 strongly supported
membership (I was one of those who voted for it). Since then,
however, the EEC has been transformed by a steady accretion of
powers limiting the freedom of national states, culminating for
the moment in the Treaty of Lisbon. Unease about this continuing
legislative encroachment on the discretion of our democratic Parliament
has increased steadily in Britain, and polling data tell us that
a clear majority of Britons regard the burdens of the Union as
not worth its benefits. They would favour a return of Westminster
rule rather than the continuing drift of power to Brussels. This
sentiment is powerful enough for British politicians to make gestures
of national independence, and to promise popular consultation,
even teasing the electors occasionally with promises of future
referenda. Those promises have not been fulfilled. Governments
seem to have been so seduced by the charms of international
"clubbability" that they have continued
to agree to measures that erode British autonomy, the most dramatic
case being the prime minister of the time, Gordon Brown,
"slinking off" to Lisbon to sign
the Treaty alone, and inconspicuously. The current version of
the drift of power arises from the EU demand for more money from
the national states.
6. One aspect of the problem is encapsulated
by the character of the European Parliament. The essential character
of parliaments is that they must balance deliberation (about justice
in the legal sense, and social order) with expressing the will
of the electorate. The European Parliament lacks this second feature,
because its electorate consists of a set of national cultures
none of which is large enough to influence the vote, so that this
Parliament is disconnected from interests and given to extensive
judgements on ideal conditions of social life—such as what
ought to be the right number of hours at work governments should
permit. The EU parliament thus lacks one essential feature of
democracy—a demos. It cannot articulate a real interest.
Instead, it become an assembly at the mercy of bright ideas which
it seeks to impose on the luckless members of the Union—ideal
working hours, paternity or maternity leave, and other such supposed
ideal conditions that take no account of the circumstances of
the member states. Here is the situation in which we as British
subjects find our lives being regulated by a set of foreigners
whom we cannot make accountable. Our representatives often tease
us with promises of refusing to be overborne; they continue to
betray us, which is why our problem is political rather than legal.
7. One version of the problem has recently been
encapsulated in the case of Learco Chindamo who had served a long
period of imprisonment for the murder of the headmaster Stephen
Lawrence. The Government and the people of Britain seem to have
long been as one in supporting the policy of expelling from the
country foreigners released from prison for committing a criminal
offence. It turned out, however, that Chindamo could not be expelled
on his release in 2007. The reason is that both aspects of what
I have called "internationalism"
have made this policy unworkable. Chindamo could not be deported,
it turned out, because returning him to his native Italy would
haves violated his human right to a family life. David Cameron
for the Opposition expressed national feeling at that time by
criticising the Human Rights Act as absurdly tying the hands of
the Government. He refrained, however, from facing the parallel
problem that the rules of free movement within the European Union
also made expelling Chindamo from the country no less impossible
than the judgement in terms of human rights.
8. The obfuscation necessity for advancing this
stealthy project results from its widespread unpopularity. It
must be marginalised so that it does not feature prominently among
the normal controversies of our political life. This kind of obfuscation
has recently been illustrated by British involvement in stabilising
the finances of the Union during the current crisis of the Euro.
It was reported that the Chancellor of the Exchequer in the Labour
Government, Alasdair Darling, had committed Britain to participating
in obligations to contribute financial support for European states
in crisis, and that he had done this after that Government
had lost the election. It was also reported in the press, however,
that the new Government must have approved this decision. If the
responsibility should lie with Darling, then it would appear to
be constitutionally irregular. If all parties approved, the question
is why the matter was not explicitly discussed in Parliament.
It involves, after all, large sums of public money. The current
Chancellor's defence of the large payment to the Republic of Ireland
has been presented in terms not of EU arrangements but of our
economic involvement with Ireland. I do not at present know the
truth of this matter, but the lack of clarity in reports about
it illustrates the kind of problem British electors face.
9. The problem lies, then, not in the constitutionality
of our sovereignty within the European Union, but in the honesty
with which obligations and commitments to European regulation
are discussed and decided. The problem, in other words, is political.
A large gap has opened up between an educated elite whose project
is to perfect the world by bringing it under a single legal regime,
on the one hand, and national electorates on the other. Such electorates
commonly take a different moral line from that advanced under
an internationalist legal order dominated by the emphasis on rights.
Rhetorically, internationalism has all the best tunes, because
the national judgements of people can plausibly be dismissed by
the use of such pejoratives as
"populism" (which means democracy
one does not like) or as resulting from ignorance and prejudice.
Internationalism, by contrast, has colonised the vocabulary of
virtue, reason and harmony. The reality, however, is that we have
here a movement so stealthy in its eagerness to transfer power
from Britain to the European Union that it has the aspect of a
slow motion coup d'etat. That is why the clarifications
of the European Bill are significant.
December 2010
36 Thus Professor Hix cites
a Eurobarometer survey of opinion taken in 1996: Across the Union,
"Whereas only 48 percent of the general public supported
EU membership at that time, 94 per cent of the elites supported
it." Simon Hix, What's Wrong with the European Union &
How to Fix It, Polity, 2008, pp.59-60.
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