The EU Bill: Restrictions on Treaties and Decisions relating to the EU - European Scrutiny Committee Contents

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, largely—of all three parties—more 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 question—that's my trade—is, "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 head—in quotes—to 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 changes—some of which were discussed with Professor Hix—in 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 entity—perhaps the world or perhaps merely Europe—and 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," I suppose.

  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 change—change x—really 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 analysis—whether I agree or not; I also voted yes in 1975 and have never regretted it, so I don't have to recant—all 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 states—that'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 traditionalists—such as the late Lord Justice Bingham in his book "The Rule of Law", but also Professor Adam Tomkins—emphatically 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.


  Q66 Chair: 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 at large.

  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 time—whether 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 doctrine.

  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 where—we don't have the names, but we receive the numbers for each polling station electronically for the Scottish election—so 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 which—on the technical material in clauses 4 and 6, for example—may 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 years—the Chair has been sitting here for 26 years—that 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 realities.

  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 scientist—if I can put it that way round—ultimately the question is one of political decision? Therefore, the issues ultimately turn out to be the decision of the electorate as a whole—as a political entity—rather 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 and unacceptable.

  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 accession—so 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.

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