The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

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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Prepared 13 January 2011