SOVEREIGNTY
The right and power of a governing body to govern itself without any interference from outside sources or bodies
One of the many questions being addressed in the British EU referendum debate concerns the transfer of sovereign power to the EU. Some have argued that there has been a conspiracy of silence among the ruling elites and that the truth and reality is finally dawning. Those people who wish to leave the EU have expressed serious concerns that this transfer of power has gone too far and that an unelected and unaccountable body is making and enforcing laws and regulations on the British people and there is little they or their democratically elected government can do about it. They feel overwhelmed by the volume of EU legislation that seems to affect their daily lives and fear that it is only getting worse. They are furious at things like the levels of EU immigration that seems to impact on numerous aspects of their daily lives and social fabric and that they know that the British government is powerless to control it. Those who wish to remain in the EU generally agree that there are several valid issues of concern but take the view that this is a price worth paying for the many benefits of membership of the EU and point out that when you join a club you cannot expect to only follow those rules that suit you. They conclude that the loss of sovereignty to date is not particularly onerous and that further integration and losses of sovereignty are a necessary part of maintaining a prosperous and secure Europe.
So perhaps the questions that we need to consider are:
What is and what necessitates a loss of sovereignty?
How does it work?
Why has it become such a problem?
What does ever-closer union and deeper integration mean?
How much tolerance is there for a further erosion of sovereignty?
How will it end?
What is and what necessitates a loss of sovereignty?
There are numerous situations when a sovereign government decides that it is in its and the best interests of its citizens to cooperate in activities with another nation state. This type of cooperation can come in many different forms such as economic, environmental or security but rarely transfer or undermine the principle of sovereign power. When nations have trading agreements with each other this is usually termed as economic ‘cooperation’, which is usually a simple agreement between governments. ‘I will sell you my bananas and in return I will buy your apples under these agreed terms and tariffs’.
When nations decide to trade with each other without tariffs or barriers (Free trade), the rules have to be gradually set at a higher more complex level to create a level playing field and stop the stronger dominating the weaker. This necessitates a much greater level of cooperation and eventually leads to economic ‘integration’.
The degree of economic cooperation or integration can be categorized into seven stages:
The only way to create these stages or agree the necessary rules is to have a central body, usually known as a supranational body or institutions, in which everyone has a say. The larger the group the more difficult it is for everyone to agree all of the time therefore it is necessary to understand that at times one or more of the parties are going to lose the vote or argument. If all things had to have unanimous agreement, it would become almost impossible to function the further up the integration stages you advance. In the EU, because of the sheer size of the areas requiring agreement and the volume of decisions that need to be made, member states have had to decide that in some areas it is necessary to allow the central decision-making body to decide and consider the issues and to determine the final and legally binding decision.
Traditionally, these types of decisions would be made by the sovereign government of a nation state, who have in most cases been elected to reflect the culture, needs and desires of its citizens. When sovereign governments determine that it is necessary and prudent to pass certain decisions to another body, whereupon they, their judicial system and their citizens give up their right to reject the outcome, this is in effect the passing or loss of sovereignty.
The only way this can be regained or compensated for, is by having sufficient representation at the central body and control over the administrative bureaucracy, as any normal government or minister would expect to have. This can only be achieved in a supranational body by having significant and effective political representation and integration, as without it, you are likely to create a democratic deficit. A democratic deficit occurs when the people are too far removed from the decision-making machinery and their representatives are not able to comprehensively represent their interests and views in large areas that affect their daily lives and or, that their daily lives are being determined by a bureaucracy of largely unelected people over which there is negligible control or influence.
Therefore, it is important to understand that giving up sovereignty is a choice and or a necessity determined by your elected representatives, but a democratic deficit is a fundamental structural problem. Both of these issues combine to make some people feel that they have little or no say or control over some aspects of their daily lives and refer to both as being a lack of sovereignty, so in this context, the question we are considering is how much loss of sovereignty is too much. The answer will vary considerably from person to person for many different reasons. Some people have only ever known a life where the EU has the deciding role over large areas of their daily lives and for them the loss of sovereignty is not a concern but a lack of democratic accountability might be. Others are saying it is not what we signed up for. So for them perhaps the question is what did they sign up for? The answer is very simple. The British people were told that they were signing up to a common market and were led to believe that this was beneficial economic cooperation that would create wealth and jobs and lower prices and largely this is what it was in 1973. At the time, there were a number of people who raised many and various concerns but were assured that once in, Britain would take control and resolve all these concerns. How wrong and misinformed or possibly arrogant and naive, they were.
What most people failed to realise or to understand, is that the rules of the club had already been written to suit the existing members and the higher the degree of economic integration, the more entwined the relationships have to be in order to create a level and efficient playing field. Once you commence an economic union, you are starting on the inevitable path to monetary union or economic and monetary union (EMU) as it is called. The critical point here is that you cannot have economic and monetary union without political union. Anyone who says differently is either deluding himself or herself or being deliberately dishonest. The two are inextricably linked. Economic and political integration can only be achieved by passing significant levels of power of decision-making to the supranational institutions. In other words, political integration means a significant loss of sovereignty in the current structural context of the EU.
How does it work?
Perhaps it is only fair to say that the EU has been a unique experiment and it would never be possible for any individual to have the necessary foresight to predict the paths and difficulties such a monumental venture would take over a period of 60+ years. Who could have predicted the collapse of the Soviet Union, the reunification of Germany, or Eastern European members of the EU? Could it be that the very existence of the EU was in part a motivating factor in these events? There have been visionaries such as Jean Monnet, a founding father who wanted to end conflict in Europe and perhaps Jacques Delors, the European president who crafted an infrastructure to ensure that regardless of the constant changes across the political spectrum of Europe, the institution of the EU would always continue to drive Europe towards its ultimate goal of a united and integrated economic and political union. The United States of Europe.
In order for these institutions to work effectively, the bureaucratic or administrative element, known as the Commission, had to be immune from political interference and was thereby mandated to perpetuate the process of integration without interference. In order to address this democratic deficit, the power of the European Parliament has been strengthened recently and been given new powers to scrutinise certain legislation. However, the Commission is still the only body in Europe that can propose new laws. It can accept suggestions for legislation but it is not obliged to accept them, or if it chooses, it can frame them in a way that suits its policy agenda. It can also legislate its jurisdiction into new areas of governance, which can then only be challenged in the European Court of Justice (CJEU).
The Commission works hand in hand with the CJEU in creating and protecting the supremacy of EU law over national law in order to protect and perpetuate the European project. They can and do create legal precedents and judgements that override a countries national law even in areas where that country had previously negotiated an opt-out. An example of this is when the CJEU ruled that the Charter of Fundamental Rights, which now takes precedence in several work related matters, overrode Britain’s opt-out of the Working Time Directive. Another example is where the Lisbon treaty stated that social security or welfare was strictly the preserve of national governments and the CJEU subsequently ruled that certain welfare payments to immigrants came under the freedom of movement therefore Britain could not stop payments. It is worth noting that these rulings are not unique to Britain and the numbers of cases before the CJEU are about average for the EU and much lower than those for many of the larger states such as Germany.
These are precisely the sort of issues that critics of the EU like to refer to when they accuse the EU of undermining British sovereignty and democracy. They like to add that Britain loses 70% – 80% of their cases in the CJEU but then again winning 20% – 30% of the cases could be considered quite reasonable. It depends on who is initiating the proceedings. Often this is the British government appealing on some problem after it has previously lost the argument and vote while the law has been debated and past. This has been getting progressively worse since the British government agreed to increasingly more qualified majority voting. For example, the Lisbon treaty agreed the move from unanimity to qualified majority voting in at least 45 policy areas in the council of ministers effectively meaning that a veto was lost in these areas.
So if we accept as fact that the EU has a bit more power to create laws in certain areas than many are comfortable with, the question is, in reality how much law, rules, regulations or directives are actually passed into British law?
If we look at the volume of EU law that has been introduced in the 20 years to 2014, the British Parliament passed 945 acts in total of which 241 were EU obligations. It also passed 33,160 statutory instruments of which 4283 implemented EU requirements. This equates to 13% of our laws originating from the EU which can hardly be classed as excessive.
However, most EU regulations do not need law to bring them into effect. If you count all EU regulations, EU acts of Parliament and EU statutory instruments, then approximately 62% of all legislative acts introduced between 1993 and 2014 that apply in the UK, were to implement legally binding EU directives. Now that does seem rather a lot. Despite the fact that these substantial numbers seem to dominate the British government’s time, it needs to be kept in mind that currently the EU cannot dictate policy in areas such as health, tax, education, defence, policing and welfare. Although, the CJEU does have a nasty habit of infringing in some of these areas.
What is critical to understand, is that each new treaty has been negotiated and agreed by successive British governments and each treaty has progressively introduced significantly more areas of interest where the EU law has supremacy over British law. If you add this to the increasing areas decided on by the Commission or determined by the CJEU then you start to understand why the EU affects so many areas of daily life.
So what does this mean?
For a large part of the British electorate, there is a justifiable feeling that they have been misled. Many people feel that they are not in control of significant parts of their daily lives because they feel that they have no real way of holding the decision-makers to account. It does not help when the British government repeatedly say that there is nothing they can do about it. The bad news is that it is going to get worse. The current EU trajectory cannot be sustained without deeper economic and political integration. Anyone who says differently is being grossly dishonest.
Why has it become such a problem?
One of the reasons British and many other European citizens are struggling with this is because this was not explained properly, if at all, in the first place. For some it was simply not foreseen, but in the 1950’s the founding Fathers absolutely knew that their objective was both economic and political union. They knew that to succeed it needed the people of Europe to achieve a common identity. They believed that the concept of the nation state was in decline and would be over in 10 years. This continued to be the dominant view in relation to globalisation throughout the latter part of the 20th century and the early part of the 21st. How wrong could they be?
The British Prime Minister, Ted Heath, who took Britain into the Common Market in 1973, then called the European Economic Community (EEC), was a big Europhile and has very clearly stated that he always completely understood that the EU was always going to be an economic and political union. Perhaps with hindsight, it beggars belief that Margaret Thatcher did not understand the inevitable conclusion of the Single Market she helped to create, although it is known that she later regretted it to her cost. However, people soon realised that the Single Market could not be completed without a significant transfer of power or sovereignty to the centre. The result of this was the Maastricht treaty. John Major knew that the British public and half of the Conservative party would never agree to this treaty and the transfer of such power, so he forced it through parliament quickly, denying parliament and the people the chance to consider its true effect. Tony Blair’s government breathed a sigh of relief when having signed the EU constitutional treaty, they got away with the expected British referendum after French and Dutch voters rejected the treaty and it fell. Shamefully most of it was repackaged as the Lisbon Treaty which was passed by Gordon Brown’s government in 2007 without any reference to the British people.
The point being made here is that incredible volumes of sovereignty has been passed with each of these treaties but on each occasion successive British government’s failed to ask and deliberately avoided asking the British electorate whether it approved, because quite simply they knew that such massive transfers of sovereignty would not be approved by the electorate. Another thing to keep in mind is the degree and frequency that British politicians say that they do not agree with this EU rule and that EU regulation but their hands are tied. This is generally true where they have already ceded power in an area but often they are not reflecting the true position they are adopting as they may have done a deal with say Germany to support one thing in return for Germany’s support for another. A classic example of this forked tongue is when recently the British government told the British people that their hands were tied over supporting British (Tata) Steel, while at the same time they were blocking proposals in the EU to support the EU steel industry necessitated by the alleged dumping of cheap Chinese steel. This type of sleight of hand goes on far more often than you would like to think and it is the very nature of politics and in particular at the European and international level. The structure of the EU may be largely responsible for the democratic deficit but cannot be blamed for the loss of sovereignty that has been knowingly handed over by successive governments in order to maintain the European project. What is slightly ironic is that even though this considerable democratic deficit with the EU is a significant issue, all this time successive British governments have purposely circumvented the democratic rights of its citizens in pursuit of what they must believe is the greater good.
If you feel slightly aggrieved by these political shenanigans and apparent deceptions, do not be. You elect and then pay your politicians to familiarise themselves with the detail and to use their best judgements on your behalf. Respective British governments determined that the British people were more likely to reject these massive transfers of sovereignty because they would not understand the bigger picture. There is that old adage that the masses are asses but the question you have to ask is how much confidence do you have in a political establishment that are so divided over this issue of Europe. How many of them are experts across the broad spectrum of the critical issues? I assure you the answer is none of them. But perhaps now the British public are starting to understand how immensely complex these issues are as they are asked to try to get their heads around the arguments for the up and coming EU referendum.
What does ever-closer union and deeper integration mean?
Some of this future integration is peripheral to Britain and is in relation to the borderless Schengen area and the eurozone to name but two. Britain might not be part of these but will most definitely be affected. The elites and technocrats from the very early stages very deliberately and very cleverly designed the whole process of European integration. It starts with integration in one or other individual sectors, which then spill over into other sectors thereby enlarging the process of integration until it becomes and inevitable and self-perpetuating process. In international relations theory, they call this neo-functionalism, which is a theory of regional integration. There are three mechanisms that neo-functionalists view as a driving force of the integration process, positive spill over, transfer of domestic alliances, technocratic automaticity. Positive spill over is when a sector governed by the central institutions creates pressure so that the neighbouring areas of policy such as health and safety and working hours are influenced by integration. The transfer of domestic alliances occurs when the different national interest groups, associations and elites shift their loyalty away from national institutions toward the supranational European institution and they try to persuade national elites to turn their loyalties to the supranational cooperation. Technocratic automaticity describes the process of when the integration is accelerated, the supranational institutions themselves will be able to lead and sponsor the further integration because they will be more powerful than the Member States.
The EU already has advanced plans and desires for many additional sectors. It has an EU President who now sits with the Commission President on the European Council where the big decisions are made by the Heads of Government of the member states. It has an EU Foreign Secretary with EU embassies and a diplomatic core springing up all over the world. It has a significant and complex military structure with plans for a more integrated EU Army and Navy. It was heavily reported in the press that Angela Merkel asked David Cameron to drop his opposition to an EU Army in exchange for her support in his recent renegotiation efforts. The EU will have an external border force if the Schengen agreement survives the current migration crisis. The eurozone is going to have to have a fiscal authority. They are talking about a eurozone finance minster, a central treasury and better social policy integration. Individual country budgets will have to be agreed and this can only work if areas such as health, education, welfare, defence, police and other no go areas are considered. So we start with economic integration and move on to political integration and finally to a federal union. A United States of Europe. Why else would an economic organisation like the EU need a European military capability?
The problem for Britain is that its current and proposed relationship with the EU, despite its opt-outs, will be affected by this deeper level of integration and it will have little or no control or say in some areas. Already banking and financial regulations for the eurozone are impinging or being forced on Britain whether it likes them or not. Britain has observer status at eurozone meetings but is not allowed to participate in the discussions or decisions. Does this mean that Britain should join the euro if it stays? Will it mean even less influence if it leaves or will it have greater flexibility to accommodate others and Europe if it left? Is not being a member of the eurozone any more harmful in or out of the EU? The answer is no one really knows except that there appears to be universal agreement that it would have been and still will be disastrous for Britain to adopt the euro and it is vitally important to think about why this is when considering the broader issue of the EU referendum.
Successive British governments have adamantly insisted that they would never allow the EU to have any say in things like Health, Education, Defence and Police and would automatically opt out of any attempt by the EU to legislate in these areas. The only truth is that Britain will become subject to more and more rules and regulations as the rest of the EU seeks deeper integration. With every new treaty and with every step of deeper integration, Britain has been forced to accept more and more qualified majority voting and a greater loss of sovereignty. Opt-outs do not give full protection and it could be argued that they dilute Britain’s influence and result in significant losses of democratic accountability. In fact, if Britain is going to opt-out of over half of the EU then the practicality of its membership of the EU has to become questionable.
These probable further transfers of large volumes of sovereignty and the resulting substantial further loss of democratic accountability cannot be denied. Is it fair? If you want to remain a member of the EU of course it is. Is the EU to blame? Of course not. The founding fathers of the EU decided that after centuries of war and strife and two world wars in less than 50 years, the only way to bring peace and security to Europe was to bind it together economically and politically. Successive British and other European governments have determined that the economic and security benefits far outweigh the inevitable loss of individual sovereignty. They all realise and accept that when you join a club you are not always going to like the collective decisions that are made and it is only sustainable by compromise. The larger and more diverse the club gets, the more compromise is necessary. If you do not like it, you can always leave. Nobody is going to stop you. They even have a sensible exit clause in the Lisbon treaty. The only problem they face is that increasing numbers of people right across Europe are starting to question the legitimacy of the great European project.
However, if Britain values this club and wants to remain a member then it is going to have to accept deeper integration for most of Europe and an even larger loss of sovereignty. Britain’s opt-outs are just making its relationship worse and most likely unsustainable. But let us be honest, the current loss of sovereignty and impingement on the daily life of most British people is hardly a burden. Yes, there is a considerable economic cost caused as a result of almost unbelievable red tape and bureaucracy. Of course, the big elephant in the room is the unqualified effects and costs of uncontrolled EU immigration on British social fabric and structures. This being the reason we find ourselves having this debate and referendum. What this has highlighted for many people, is that the government appear powerless to solve this problem because of the loss of sovereignty and they want to know how to resolve it. It seems that the only options put forward at the moment is to leave and face the possible consequences or stay and accept the costs of membership one of which is a continued and greater loss of sovereignty.
How will it end?
It is quite simple really. The EU cannot prosper unless it resolves its current traumas and principally the significant problems of the eurozone. If these problems are solvable at all, the only possible solutions lay in deeper economic and political integration. The only way this will work is by transferring more decision-making and therefore sovereignty to the centre.
The wealth imbalances and flagging economies perpetuated in the eurozone; the austerity measures imposed across the eurozone affecting mainly the weaker less structured economies; the migration crisis in the Schengen area and the immigration crisis in Britain are all giving rise to feelings of resentment towards the EU and those seeming to control it. Currently there is no appetite for the transfer of more power to the centre. Governments across Europe are fighting against a rise in nationalistic sentiment and support for the far right at levels not seen since the 1930’s.
While the countries or perhaps the citizens of the EU are moving away from the concept of an ever-closer union, the Commission and other major EU institutions are ploughing an irreversible path towards deeper integration. The inevitable conclusion is conflict and failure or a compromise that is most likely to condemn Europe, or at least the smaller and weaker countries of Europe, to a continued and sustained period of economic turmoil and sluggish performance. The only possible hope is for a speedy upturn in the global economy that might lift growth across most of the eurozone but this will only mask the structural defects until the next crisis. History shows us that time after time when the EU has a crisis, it always opts for compromise and deeper integration and in the eurozone there is no alternative.
In the final analysis, from a sovereignty point of view, the EU is a one-way trip. It was planned like that from the beginning in a genuine belief that this would be to the ultimate benefit of all of the citizens of Europe. Do not blame the Commission. It and the principal institutions were set up in such a way to perpetuate and to protect the grand plan and they have cemented their independence into the structure. In theory, European Heads of State, through the European Council, are supposed to set and correct the course of the European Union and thus give guidance to the Commission. Sadly, in part because of the size of the EU but mainly because of a lack of visionary strong leadership in and from the European Council, this has now failed. It sometimes feels as if the Commission and its supporting institutions have taken on an intelligence or being of their own. You could say that the EU or the collective institutions of the EU are now bigger and more powerful than any single country.
So setting aside the argument of what might happen to Britain if it left the EU and the issues that arise from the volume of EU immigration, for most people the question of sovereignty is quite simple really.
If you feel that the many issues, or even just one significant issue, resulting from a loss of sovereignty, is affecting the social fabric of your daily life or undermining your identity, or perhaps your rights to democratic accountability, then you should give the current and inevitable further loss of sovereignty serious consideration in your EU referendum decision.
On the other hand, if you believe that the not inconsiderable benefits of membership of the EU and the future prosperity and security of Britain and Europe are more likely to be achieved through a United Europe then any loss of sovereignty has to be on balance an acceptable cost of membership.
I will leave you with one more thought. Can Britain ever come to terms with becoming a part of something that tears at the soul of its identity? Only time will tell but perhaps the people of Scotland can shed some light on this.
William David
May 2016