Examination of Witness (Questions 58-78)
Professor Ken Minogue
8 December 2010
Q58 Chair: Good afternoon, Professor
Minogue. I'll start with the first question or two.
Your submission deals largely with parliamentary
sovereignty aspects of the Bill. Of course, we have just reported
on that: we had to, because of the time constraints that the Government
imposed on us as a result of holding Second Reading yesterday.
Most of our questions today will turn on the referendum lock provisions
in part 1 of the Bill.
At the end of your submission, you make an interesting
reference to the transfer of power from Britain to the EU as having
the aspect of a slow-motion coup d'état. You say: "That
is why the clarifications of the European Union Bill are significant."
What do you see the Bill clarifying, and who is the intended audience
for this clarification?
Professor Minogue: Well, on the
referendum lock, I have nothing directly to say that would be
useful, but my response is in general about a wider generic problem
of the 20th century. British Governments and other Governments
tended to become internationalised, as I have called it. I have
therefore tried to locate the European Union within this broader
tendency to believe that there is a source of wisdom beyond the
House of Commons and the King in Parliament to which we ought
to be, as it were, obedient. We now have large numbers of rules,
laws, directives and so on that come from abroad, which are not
things that the British Parliament itself has decreed and, indeed,
which it probably would not. We are restive under many of these
laws, some of them being human rights and some of them being part
of the European Union.
This is such an odd situation, because there
is quite a lot of evidence that the people at large, when polled,
do not like this result. They are resentful of it and all sorts
of falsities occur in their responses. At the same time, the political
class, which I think is distinguishable, in Parliament, largelyof
all three partiesmore or less adopts this internationalist
position. They're edgy about it and occasionally they make slight
moves towards saying, "Yes, we will give a referendum if
there are any future problems along these lines." Nonetheless,
they don't come up with the restraints that I think there is evidence
that the population at large would need.
To end that very general and slightly waffly
account, let me say that the basic political theory questionthat's
my tradeis, "Where is wisdom to be found in decisions
in politics?" The answer is, of course, nobody and no decision
maker is totally reliable, when it's sovereign Parliament, the
people making a decision in a referendum or whether it is some
rational set of economic rights. You don't know what the effects
will be, and the effects will, in fact, include unpredictabilities.
My view of the EU and the problems which it raises is broad. Therefore
I'm always slightly on the edge of irrelevance as far as the deliberations
of this Committee are concerned.
Q59 Chair: Some commentators have
pointed to what they see as a contradiction in the Bill, which
purports to be drafted to enshrine the principle of parliamentary
sovereignty against the threat of the EU itself, while at the
same time seeking to limit parliamentary sovereignty by appealing
over Parliament's headin quotesto the people in
the form of referendums, etc. What's your general view about this
contradiction between these two propositions?
Professor Minogue: It's not a
contradiction, because it simply places a restraint upon certain
types of actions that a parliamentary vote might generate. It
simply says that if the vote seems to generate that consequence,
there is a further check that must be used. It doesn't bind Parliament
to anything in particular that cannot be unscrambled. Furthermore,
with that provision itself, as has been made clear by the constitutional
lawyers who have written to the Committee, parliamentary sovereignty
remains intact in spite of the immense changessome of which
were discussed with Professor Hixin attitude and control
over British life that have taken place.
Q60 Chair: So, when you're looking
at the evidence that we have already seen, do you have the sense
that the Bill is likely to be effective in binding future Parliaments?
And under what circumstances do you feel that a future Government
will or might repeal these provisions? Do you have a sense of
the direction in which that might go?
Professor Minogue: In answer to
the second part, I think that if the drift of internationalism
and the belief in a world government and supranational powers
were to reach a certain point, people might then face up directly
to the question of saying, "Britain should merely be a province
of some larger entityperhaps the world or perhaps merely
Europeand as a province, it should have very limited powers."
In other words, "We should give up the sovereignty and self-determination
of the British nation which has so far continued for 1,000 years,"
Q61 Penny Mordaunt: How far is
the decision whether to hold a referendum a legal question, amenable
to judicial review? And, how far is it a political question?
Professor Minogue: I think it
is basically a political question, and that is basically the problem
raised by the whole idea of a referendum lock. It can never be
a purely political question, but it can also never be a purely
legal question. Those who want to leave the situation as it is
at the moment can certainly point to the problems of determining
whether this changechange xreally requires a referendum.
Incidentally, I hadn't thought of the accession of Turkey as being
a possible thing that might require a referendum, as mentioned
in the later stages of Simon Hix's discussion, but it's obviously
a very important change in the powers that Britain would be able
to exercise. The accession of new states has been going on without
very much control by the British Government for a very long time.
Q62 Michael Connarty: I hope we
will come back to the question of accession treaties, given that
that was clearly the most glaring omission in the original speeches
that were made about the promise of a Bill when the Government
came into power. They have ignored the comments made then and
brought in a Bill without accession treaties contained in it.
In your analysiswhether I agree or not;
I also voted yes in 1975 and have never regretted it, so I don't
have to recantall the things that you say about where the
power lies may or may not be true to a certain degree, particularly
after Lisbon, which we did say was a tipping point in terms of
where the triangulation of forces in the European Union would
fall. That power would fall more towards the European Parliament
and Commission and less to nation statesthat's true. However,
there is the question about what use the Bill is in that debate.
Do you really believe that all these matters in clauses 4 and
6 will be subject to referendums, if the Minister decides they
are serious enough? Of course, if they do not, they will just
do them in Council anyway. Where does it fit in in assuaging some
of your concerns about the continuing movement of power?
Professor Minogue: It certainly
doesn't entirely assuage my concerns. There is no political solution
that is absolutely definite. The media question, "Can you
guarantee that 'x' will not happen, or that 'x' will happen?"
is always an absurd question. Therefore, if you want to argue
that a referendum should be triggered by certain types of transfer
of power, you can never define that in such a way that it will
be unambiguous and will give a guarantee. It is like a shot across
the bows. It is a declaration by Parliament, with appropriate
action, that things have, over the decades since 1972, moved in
a direction which has brought us to a situation where we are subject
to bright ideas about the hours we can work, the kind of benefits
for maternity and paternity that will be allowed, and how our
City operates. These things are being determined by foreigners.
Now, that is an abandonment of British self-determination and
therefore, I think, an abandonment also of democracy. I come back,
of course, to the idea that no source of political decisions is
entirely wise, but at this point on constitutionality, where the
whole power of the nation is being exported to outsiders, then
at the very least the people should have an opportunity to declare
on it. It is no guarantee, fully, of wisdom in politics, but it
is better than nothing.
Q63 Stephen Phillips: Does it
follow from that answer, and I think from your evidence, that
you regard this as a useful Bill in the sense that it establishes
that the will of the British Parliament should be seen as sovereign
and that it should determine the fate of those who have sent Members
here to make law and, indeed, to form the Government who preside
over their affairs?
Professor Minogue: Yes. I think
the answer to that is straightforwardly yes. What I am trying
to avoid is to be saying that the significance of the Bill is
merely declaratory. It has to be a law, and I think that it has
legislative implications. So, it is not merely declaratory, but
its declaratory force is quite an important aspect of it.
Q64 Chair: And if the mechanism
that was employed, for example, under clause 18 was to lead in
the direction, through UK constitutional law, to the judges in
the light of the Jackson case, for example, to qualify or even
to reduce parliamentary sovereignty, would you agree that that
would be an unsatisfactory conclusion and that it would be far
better to make clear that Parliament has its own sovereignty and
its own right, and does not need to go down what Professors Allan
and Craig describe as the common law principle?
Professor Minogue: I agree with
all that except the last phrase about the common law principle.
I take it that the sovereignty of Parliament is a common law principle,
is it not?
Q65 Chair: The evidence that we
got was that Professor Allan and Professor Craig thought it was,
but that the traditionalistssuch as the late Lord Justice
Bingham in his book "The Rule of Law", but also Professor
Adam Tomkinsemphatically put the view that the common law
principle was not a sustainable proposition and that it led to
consequences in terms of interpretation in UK constitutional law
in relation to the European Communities Act, which gave the judges
a greater interpretive role and thereby would enable them to be
able to make decisions in line with some of their judgments or
dicta that parliamentary sovereignty was not everything that it
was cracked up to be and ought to be qualified. So that was the
balance of our evidence, and I am really asking you if you agree
that the ultimate authority, to put it bluntly, should be the
UK Parliament, or whether there should be an ultimate authority
in, say, the Supreme Court?
Professor Minogue: Where the question
arises of an ultimate authority, I think there is no doubt that
the sovereign Parliament, which is accountable, must be that ultimate
authority. As I said before, ambiguity is inherent in political
judgments and indeed in legal judgments. Therefore you cannot
exclude the role of judges in interpreting what this principle
means. On the other hand, one of the corruptions of political,
social and moral life in our time has been the tendency of judges
to extend their power. This is often criticised as judicial activism,
and I think it is a genuine problem. It is certainly a problem
in America, and I think it can sometimes be a problem here. It
is seen in the internationalist inclinations of constitutional
courts these days to pay close attention to what courts in other
jurisdictions are doing. The Americans will take an interest in
Australian, British or French judgments, and this is a tendency
towards centrism in politics, which is the fundamental discriminator
of what is supportable and what is not supportable in respectable
terms. That is a very big subject.
It is a very big subject. But what if under all the verbiage and
under all the doctrines that some constitutional lawyers produce,
this question of the common law principle, which I have mentioned,
ended up by undermining the ultimate authority of the UK Parliament's
sovereignty in the hands of the Supreme Court to diminish parliamentary
sovereignty? Would you conclude that clause 18, if it had that
mischief in it, as you might put it, would be much less useful
and of much less value if it produced those consequences?
Professor Minogue: Certainly if
it had that mischief in it, as you so wisely put it. My view of
parliamentary sovereignty is that it is a multifaceted principle,
justifiable in common law terms, justifiable in democratic terms
because it allows an accountability that judicial decisions do
not, and justifiable far more widely in the fact that it coheres
with the entire tradition of British freedom which, I think, is
central to what we ought to understand of our political situation.
Q67 Kelvin Hopkins: I apologise
for being late. I wanted to pursue a point with Professor Hix
earlier. It strikes me very strongly that this desire for self-government
is very powerful and relates to people seeing themselves as culturally
homogeneous. For 700 years the Greeks were governed by the Turks,
but they still retained Greek identity. The Poles have been battered
from side to side by Orthodox Russians and Protestant Germans
and they have retained their sense of identity. Once they have
self-government they are quite happy to deal with other countries
but they do not want to be governed by other people. They are
prepared to hand over a degree of sovereignty temporarily for
self-protection. The Baltic states, for example, like to be within
the European Union because they are much more frightened about
being governed by someone further east. But they still want self-government.
This idea that somehow we want to get rid of self-government and
go in for some world order strikes me as being a psychological
phenomenon, not a rational one.
Professor Minogue: In the world
Q68 Kelvin Hopkins: Yes. You mentioned
the political class. It is the political class, and I have been
across Europe to many countries and the political class are almost
united in their fanaticism for the European Union. Yet the peoples
are not. The people want to have a Government that they can relate
to and can elect and de-elect from time to time as well. We have
not cut that Gordian knot.
Professor Minogue: That is absolutely
the starting point for understanding the whole position. Universities
periodically sink into corrupt institutions. They did when they
became scholastic in the late middle ages and had to be rescued
by external scholars. In our time there is a subfusc doctrine,
an anti-national doctrine, an anti-bourgeois respectability doctrine,
that makes large numbers of people in universities adopt a self-flattering
idea that their critical credentials are at stake if they do not
embrace something international, subversive, et cetera. That is
not something to be elaborated in a Committee such as this one
with serious business to conduct, but, none the less, there is
a kind of déformation professionnelle of the academic and
the educated classes that is a significant fact of our time.
Q69 Michael Connarty: You throw
out so many tempting titbits that I could chase that one down
the road for a long timewhether the academics of our country,
or any country, have a naturally subversive nature, and whether
there should be such a nature, given that we don't want the bureaucrats
running our lives entirely, or nothing would ever change.
Professor Minogue: That is a sound
Q70 Michael Connarty: Focusing
on the Bill, you have said that the Bill is an attempt by the
Government to give power back, but it appears to be not a consultative
referendum process, but a policy-making referendum process. So,
obviously, it takes the power from Parliament and gives it to
a group of people who may or may not turn out in large numbers
and who may divide on the issue by a small margin. You are saying
that that group of people who turn up for the referendum are more
valid than those people who turned up for the parliamentary process.
We have seen a lot of that recently, with very right-wing politicians
getting into coalitions with what were libertarian politicians.
Each group was seriously damaged by that in the end in the eyes
of the people who voted for them.
In the referendum situation, the people who
turned out for my election to the UK Parliament may be a completely
different group of people from those who turn out for the Scottish
elections to the Scottish Parliament next year. Considerably fewer
people turn out and the majorities are slightly different. Because
of electronic voting, we now have very clear indications of who
votes wherewe don't have the names, but we receive the
numbers for each polling station electronically for the Scottish
electionso we know the pattern of votes, which is entirely
different from the pattern of votes for my election. Why should
that referendum process, some of whichon the technical
material in clauses 4 and 6, for examplemay be of very
little interest to people, be more valid than the democratic will
of a sovereign Parliament elected on whatever constitutional and
electoral system we choose to have for our Parliament?
Professor Minogue: The answer
is that no one knows. Sometimes the one, and sometimes the other.
The vital point in that interesting position is the word "consultation".
It is not the case that people voting in the House of Commons,
who are heavily whipped, are always the wisest and the most accountable
judges of what ought to be done.
Michael Connarty: If you are talking
about the Whips, I entirely agree.
Q71 Chair: Professor Minogue,
you are not seriously considering what happened last night by
any chance, are you?
Professor Minogue: No. I suppose
that the Bill does hand power over to a set of people, but I think
it's also a consultation process. You are perfectly right, if
a Parliament, with its own peculiar déformations, is forced
to consult a set of people, what that set of people will be, what
their wisdom will be and what their particular interests will
be is always a dodgy matter. None the less, it is one further
consultative process checking the possibility of a movement of
power away from Westminster to something, in all these cases,
much less accountable. So it might best, I think, be taken as
a protection of accountability.
Q72 Michael Connarty: You have
probably heard me rehearse the issue, sitting here now for 12
yearsthe Chair has been sitting here for 26 yearsthat
trying to control the Minister who is going to sell the pass on
a negotiation in the Council over my 12 years or the Chair's 26
has proven to be very difficult. By the way, I don't think it's
better in Denmark or Sweden, because what they do is they find
ways around the mandate. We have had many cases explained to us
of how they get around the mandate. However, at least the process
is well known.
I give the example of the euro vignette. What
is basically a carbon tax on lorries over 12 tonnes, which could
be up to £11 a day, was clearly a tax, but the agreement
by our Ministers was that they would use the transport legal base.
It would not be called a tax, but be part of the transport clause
so they could go around it. They didn't have a veto, and therefore
they could say, "I couldn't stop it because there wasn't
a veto, as it is not a tax, but transport." That will go
on, and has gone on all the time I have been in this Parliament.
If you think it's good to consult the people in some way in a
referendum, surely there are major omissions in the Bill, in that
there is no way in which the Parliament can control its Ministers
through the well worn subterfuges they use. As you put it very
well, they become clubbable. They go native when they go to Council
meetings, and they sell things that the British people don't want
them to give away. If they stood firm and were controlled by Parliament,
they would not give them away.
Professor Minogue: These are corruptions
that lie at the very heart of politics. I don't think there is
a procedure or system that will entirely defeat them. We hope
that they will be defeated by frank and free discussion and by
media criticism, but as I have been suggesting, there is a sort
of elite judgment of what is legitimate and decent to say and
what is not. That barrier limits the extent to which people face
I think you're absolutely right that names are
very important here, and people switch names in the most outrageous
way. When you were talking to Professor Hix, I thought that was
an extremely good point. I don't see how you get over that. What
we have to recognise right through this is that there is no foolproof
way of doing what we hope to do, which is to try to make the laws
under which the British live reasonably tolerable to the British
people themselves. What we now face is a situation in which they
don't like whole streams of things: payments they have to make,
resources such as fish they have handed over and laws about working
hours. This is an extensive interference with their lives that
has not arisen because the British Parliament has decided that
this is desirable. It simply was the result of powers in general
handed over in 1972 and developed over the years. I don't think
there is a foolproof way of preventing this, but we face a political
rather than a legal situation, and I think this is a move, in
some degree, that would be helpful.
Q73 Chair: In terms of referendums,
which would put a question to the people about European issues,
whether it is the specific list set out in the Bill or more generally
on the European question overall, do you think that such a referendum
should be legally binding?
Professor Minogue: No. I
think it should probably not be legally for some of the reasons
that your colleague here has been suggesting. It would, however,
be difficult, but, in EU experience, it would be by no means impossible
for a British Government to defy the results of a referendum.
It would have to take them on board.
Q74 Chair: Are you really saying,
right at the heart of this entire operation of the Bill, that
you can have all the legal safeguards or legal propositions in
the world, you can speak of sovereignty in terms of a common law
principle and you can have academics from different parts of the
United Kingdom converging into this Committee and giving their
view, from a legal point of view, but, in your assessment of this
as a political scientistif I can put it that way roundultimately
the question is one of political decision? Therefore, the issues
ultimately turn out to be the decision of the electorate as a
wholeas a political entityrather than the more specific
legal analysis, which is quite often given to it.
Professor Minogue: I certainly
think that is how it ought to happen: it should correspond to
what the demos want. On the other hand, the demos are not infallible,
and that is why I put references in my submission to international
declarations of rights and things of that sort, which also often
cause trouble and impose rules upon Britain that the British,
with changed circumstances, often find intolerable. Votes for
convicts is a recent example of one that combines both issues.
Q75 Chair: Would you be worried
at the thought of this being reduced to one main issue, which
is difficult, of the ultimate authority in the land on these questions
being the Supreme Court? Would you regard that with concern?
Professor Minogue: Yes. I would
certainly regard it with concern, because the Supreme Court has
a specific professional function, which is interpreting the law
and not making judgments of what ought to be the rules for the
country. I would be very worried about that.
Q76 Kelvin Hopkins: For me, the
justification for referendums is that political systems, whichever
one you choose, are all slightly imperfect. There are different
outcomes. If you change to PR from first past the post, you get
a different outcome. Our system has, essentially, two major parties
that are heavily centrally controlled by their leadership, who
control the membership of the parliamentary party as well, and
the centres are both either openly pro-European or acquiesce in
the European Union and are at odds with what the majority of the
population clearly want.
It seems to me that, on constitutional matters,
there is a case for testing the opinion of the people to put pressure
on our politicians. We vote for our major parties for other reasons
such as tribal reasons, because one is seen to be more socially
democratic and the other is seen to be more pro-big business or
whatever. We reluctantly have to go along with the fact that one
is pro-European and the other one acquiesces in the European Union,
and we don't really get a choice.
The change from governing ourselves to being
governed by a supranational body is a fundamental one, and yet
we haven't really, since 1975, been asked about the direction
that we want to go in. I would have had a referendum on the Single
European Act and other things since then. That seems to me to
be a justification for a referendum, even though referendums themselves
are not perfect instruments. It seems to be justified to get the
opinion of the British people on a fundamental, constitutional
change that they clearly understand and clearly don't like. I
sense that, across Europe, we now have politicians, who are ostensibly
democratic, conspiring against their own people, and that is unhealthy
Professor Minogue: I abound in
your sense. I would revert to one of the central points of my
submission, which is that what is wrong with the present situation
is that we become saddled with laws and regulations made by foreigners,
which we cannot repeal. The whole point of national sovereignty
as it developed historically in Britain was as a result of too
much law, which one couldn't ignore; one had to find some way
of getting rid of it. We found legislative ways of repealing it.
We now find ourselves in the same situation
in that social comment and the newspapers are full of rather idiotic
rules and laws to which we are subject, many of which we did not
enact ourselves, which are misunderstood by people without the
corresponding common sense that would be needed to make these
laws work as they were intended. This is the situation we face,
and I think this Bill is a useful contribution to shifting direction.
Q77 Michael Connarty: My final
question relates to the element that we passed over at the beginning.
The purpose of the Bill was supposed to be to ensure that no significant
transfer of power would go from the UK to the EU without the people
having a say through a referendum.
Professor Minogue: No further.
Q78 Michael Connarty: Under clause
4(4)(c) the Bill excludes treaties that deal with accessionso
if Turkey, Serbia or, let's say in the future, Belarus or Ukraine
are going to accede. Apart from the fact that you can slip in
little clauses that deal with Ireland's problems, let's deal with
the big question. When an accession takes place, surely this is
a major transfer of power. It changes the relationship completely
between the UK and the rest of the EU. How can it be justified?
Do you think it can be justified that such a referendum is excluded
from this Bill?
Professor Minogue: It cannot be
justified and accession should also be one of the items that could
trigger a lock. There is no doubt about that.
Chair: Professor Minogue, thank you very
much indeed for coming.
Professor Minogue: It has been
a great pleasure.