Sovereignty

I’m going to leap into the sovereignty thing, because people are saying things about it that I think are missing the point, or are based on misunderstandings or misleadings (a word I’ve just invented).

For me, it is the most important issue in the debate. The economic one has been far too overblown by both sides. It’s pretty obvious that we are going to lose money in the short term if we leave. Uncertainty has a tendency to do that to stock markets, and we are setting ourselves up for at least two years uncertainty, possibly more. But some decisions are more important than short-term economic good fortune. (Aren’t they? We could doubtless improve our economy by not having a minimum wage, by not having rules about child labour, by asset-stripping any struggling company – you get the idea. We think some things are more important than what money we make.)

One of those decisions, in my view, is the principle that the laws that bind us should be made by those we have voted for. A simplistic version of this would go ‘we vote for our parliament, and they make the laws, no one else. If they make bad laws, we can vote them out next time. That means they have to think about the electorate every time they think there’s going to be a problem with a law they want to pass.’ It’s allied to another simplistic notion – that our members of parliament (in the Commons, anyway) are supposed to represent the views of their constituents to the Commons.

To take the latter point first, we know that it isn’t that simple. It’s impossible to expect an MP to know the proportions of opinion in their constituency on every issue, and unfair if they represent opinion only in the proportions that they are lobbied. The practical solution of which is that we vote on party lines, and expect the elected MP to act, speak and legislate along those lines, whether we have voted for them or not. The consequence of this is that those of us living in constituencies which are safe seats for a party we wouldn’t vote for are effectively disenfranchised. So it sure ain’t perfect. But it remains the case that an MP who acted or spoke in a way which their constituency members found abhorrent would punish them at the next election (if they remembered…)

Of course, it isn’t even that simple. A very large amount of domestic legislation is secondary. The primary legislation, which is debated and voted upon in parliament gives effect to a statutory instrument which assigns powers to a minister to make decisions or perhaps to bring some part of legislation into effect at some later date. In practice, some of these decisions are taken not by the minister themselves, but by members of his department (‘faceless bureaucrats’). It has been said that this undermines the ‘laws made by people we vote for’ principle, because in the first place the bureaucrats are employed civil servants, and additionally the minister is appointed to their portfolio by the prime minister, not elected to it. But this doesn’t alter the fact that if a minister makes a cock-up, or someone in their department does, they will pay the price (at least in principle) at the ballot box.

Comparisons have been drawn between the fact that we have a (largely) unelected House of Lords, and the fact that the Council of the European Union consists of officials appointed by member states. The two are not really comparable in any other respects. The Lords is largely an amending chamber. It scrutinises legislation proposed by the government or the lower house, and though it does have the power to reject bills, these powers are now severely curtailed. The Council of Europe, by contrast, is essentially the executive of the EU. It decides upon legislation and presents it for debate. There is no scope for elected MEPs to do this. Members of the Council are not elected and cannot be removed from office by the electorate in the same way.

So, suppose we consider the fictitious regulation EU 152/2017 which is designed to punish member states who consider leaving, and which requires the UK to set basic rate of income tax at 60% and give the balance to the other members states in proportion to their populations. This would have been concocted at Council level, and our members of that council would be unable to veto it. If they made no effort to protest about it, the UK electorate and government could do nothing to punish them. When the regulation came to be amended and voted upon in the chamber, the UK MEPs would also have little chance of opposing it themselves, and we would be reliant on some sense of fair play and justice being forthcoming from a majority of the other 27 states to avoid the regulation having immediate and direct effect in the UK.

Now, please note that I don’t say that this is a very likely scenario. Were something as extreme to happen, our parliament is still supreme in the sense that we could immediately resign our membership of the EU. But there are countless gradations of measures less extreme which could still damage our interests, and yet which, because they are less extreme, could not possibly justify our flouncing out in an unannounced exit. Those we just have to wear, without our sovereign parliament being at all involved. Regulations become part of member states’ laws.

There are those who say that sovereignty is a nebulous or an outmoded concept. I don’t buy that for a moment. It may be on its way out, and in the long term future of the human race, it would be lovely to believe that a brotherhood of man would develop (ideally without the Eurovision winning songs) there would be no need for armies, wars, nation states or, indeed, currencies. But we are a long way from that.

‘We share sovereignty anyway,’ it is said, with NATO and the UN, and ‘all sorts’ of other supra-national bodies. This is, so far as I can tell, complete nonsense. We make agreements with groups of other nations, and this commits us to certain actions when certain circumstances arise, such as Article 5 of the Washington Treaty, requiring us to consider an attack on a NATO country as an attack upon ourselves. It cannot be necessary to point out how different this is from the scenarios outlined above, where EU regulations automatically become our law, and EU directives have to be given effect in our laws, whether we like them or not.

There’s a final irony to all this, which may invert it all, depending upon your perspective. Suppose the UK votes, as currently seems likely, to leave the EU on June 23rd. This has no legal force. The fact that the government has called a referendum provides us with no more than a straw poll of the populace. By calling it, David Cameron has fulfilled his election promise. Actually to leave the EU requires the passing of an Act of Parliament, which must pass with a majority vote in the Commons. It is very clear that the majority of the Commons is opposed to Brexit. So how would that vote pass? Would we be relying upon the integrity of each MP to reflect the will of the nation and vote to leave? Is that integrity? Is that what our parliamentary system is supposed to do? Our MPs are supposed to give due regard to the opinions of their constituents. Should they have remained silent on the question until the poll was over, and then voted on the Brexit Act according to how their constituents voted in the referendum? But might a majority across the country not have resulted in a majority of constituencies voting to leave? (regions with very large proportions of Brexiters may leave lots of seats with majority Remain votes).

So what happens if the nation votes to Leave, and yet Parliament defeats the Brexit Act?

Civil war?

 

(I would have apologised for the visual pun, but it is dated 1911, which is a date of historic constitutional significance, which excuses it)

 

 

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