Legal Sovereignty Is Not the Same As Democratic Accountability in the Brexit Debate

In this series, professionals discuss how the EU referendum affects the business community. See the stories here, then write your own (use #Brexit in the body of the post).

This article is co-authored by Dr Alison Wakefield, University of Portsmouth and Claire Bradley, European Law Monitor

Sovereignty is an abstract and subjective concept that is difficult to define. Most of the time, citizens do not go around worrying about its impact on themselves and their families. However, suddenly we are hearing a lot about it in the European Union referendum debate. In this article we look at the UK's 'pooled' sovereignty within the European Union and some of the ways in which this benefits British citizens.

What do we mean by sovereignty?

Sovereignty can be conceptualised in a number of different ways. Political scientists make a distinction between de jure (legal) sovereignty concerned with institutionalised rights to exercise control over a territory, and de facto (actual) sovereignty which is about actual control and influence. Another relevant term is that of ‘pooled' sovereignty, whereby influence is shared with other countries with common interests. The UK is a union of pooled sovereignty, being a state of four countries. Its sovereignty is further pooled as a result of the 700 international treaties to which the UK is a signatory, and the dozens of supranational bodies to which it belongs, including the European Union. Our largest transfer of sovereignty is to NATO through Article 5 of the Washington Treaty, which obliges us to go to war in support of a member.

Those favouring a Brexit argue that the UK needs to leave the EU in order to reclaim its sovereignty, yet such a view is dependent on one’s conception of sovereignty. Robin Niblett, Director of the Chatham House think tank, argues that ‘sovereignty in international affairs in the 21st century is about securing outcomes’, a view that equates the concept with ‘getting things done, by whatever means’. Those in the ‘remain’ camp point to the collective achievements that the UK’s EU membership has brought about, including establishing the single market, brakes to Iran’s nuclear ambitions and establishing an ambitious strategy on climate change. They also emphasise the need to maintain such a level of collaboration as being the most effective means of addressing 21st century challenges such as energy efficiency and sustainability, energy security, internet governance, mass migration and the fight against terrorism.

How much of our sovereignty is pooled with the European Union?

The extent that UK laws have been influenced by the EU is difficult to measure. It can include Acts put in place by the UK Parliament, rules and regulations drawn up by Ministers, and regulations produced by the EU which apply here in the UK. A combination of these interpretations results in the following estimates, provided by the House of Commons Library:

1.    Acts put in place by our Parliament: accounting for 10-14%

This category refers to primary legislation – Acts of Parliament – that have ‘incorporated a degree of EU influence’. This varies from those making only a passing reference to EU obligations to those in which the main purpose of the Act is to implement EU obligations. The lower estimate in this case is based only on those that are actively implementing EU laws or measures.

2.    UK regulations influenced by the EU: accounting for 9-14%

The estimates in this category relate to regulations – secondary legislation – in the form of Statutory Instruments which are made as part of the European Communities Act, which authorises the Government to implement EU law by Acts or forms of regulation.

3.    EU regulations (encompassing item 2, UK regulations): accounting for up to53%

Some EU initiatives do not need to be made into laws or regulations at a national level, but are implemented through 'EU regulations'. This category encompasses all EU and UK regulations and therefore includes those in the previous category. It is difficult to estimate the level of EU influence over the UK’s secondary legislation, as this is dependent on the extent to which all EU regulations are incorporated/excluded, bearing in mind that some relate to matters such as olive growing regulations and therefore will not directly impact on the UK.

One positive example is the European Union roaming regulations, the ‘Eurotariff’, which regulate the imposition by mobile network operators of roaming charges within the European Economic Area. Since 2007, the roaming regulations have steadily lowered the maximum roaming charges allowable, and all roaming charges for temporary roaming will be abolished on 15 June 2017.

In weighing up the implications of EU legislation, it should be noted that the EU is much more active in certain policy areas than others. In addition, in some areas its influence may be broad but the impact of this influence may be relatively minor. In other areas the EU may have occasional influence that is significant. The government department reporting the highest proportion of EU-related legislation in its area of responsibility is the Department for the Environment, Food and Rural Affairs, while the department reporting the lowest is the Ministry of Defence (0% when the Ministry reported in 2003-4, according to the House of Commons Library research). Notably, the UK retains its veto in important areas like foreign policy, taxation, and the budget framework.

On the other hand, for many voters the main concern about the EU is a lack of sovereign control over migration. Those who are concerned about incoming foreigners from the EU are not convinced by economists’ arguments that immigration benefits the economy, and do not see any personal advantage in the reciprocal arrangements allowing UK citizens to work in the other 27 EU states. Immigration is therefore one of the most contentious areas in the referendum debate, and the focus of many people’s concerns when they use the term ‘sovereignty’.

In fact, researchers argue that the effect of EU migration is at worst neutral and at best an economic benefit. A recent London School of Economics study has found that there is little correlation between wage variations for British workers and immigration rates and that instead these are primarily linked to overarching economic factors such as the global economic crisis. It also noted that, rather than being a burden on resources, EU migrants pay more in taxes than they use in public services and play a significant role in reducing the budget deficit. On average, EU migrants have higher education attainment levels than British born citizens. Refugees living in other EU countries, such as Germany, have no right to enter the UK.

In the event of a Brexit, if the government votes to remain in the single market, which is likely since there is a pro-remain majority in the House of Commons of 454 MPs to 147, the UK will have to continue to accept EU free movement rules.

In what other ways does EU legislation affect UK citizens?

EU legislation is of course based on collective decision-making in which the UK is fully engaged, through a democratic process which we summarise below. In conjunction with our European partners we have created laws and regulations that impact positively on our trade, our travel, our justice (including through police and judicial co-operation) and our rights as citizens. Some of the ways in which European legislation has significantly enhanced citizens’ rights are as follows.

The EU has been central in shaping the employment rights that UK workers enjoy today. The following are examples of those that were introduced as a result of our membership of the EU, and which will be are at risk if we leave:

• Minimum paid annual leave (now 28 days a year including bank holidays);
• Additional rights for agency and temporary workers and for part-time workers;
• Current pregnancy and maternity leave rights;
• Parental leave;
• Working time (including a maximum of a 48-hour week unless the employee agrees otherwise, and minimum rest breaks each day);
• Equal pay;
• Anti-discrimination rules on race, sex, disability, age and sexual orientation; and
• Data protection rights.

There are also employment laws derived from the EU regarding transfers of undertakings (covering workers when the business they work for is sold or taken over), collective redundancies, and works councils (giving employees the right to receive information about a business and be consulted about some of its activities). The UK has been among the most active opponents of European employment rights, often seeing these as restricting workforce flexibility and adding ‘red-tape’ to businesses. Those in the ‘remain’ camp, including most of the unions, agree that if we leave the EU many of these rights could be at risk.

The EU has also granted UK citizens many protections as consumers that they previously did not have. These include:

• Greater protection from unsafe goods, including toy safety standards;
• Protection from misleading/unfair commercial practices such as misleading advertising, unfair contracts, aggressive practices and doorstep selling;
• Limitations on monopolies and restrictive trade practices (actions that impose any unjustified costs on consumers) in a range of areas including roaming charges, internet search engines and tie-in contracts; and
• Upcoming data protection legislation, which will give consumers more rights and better protection when giving businesses access to their personal data.

In relation to environmental protection, the EU has established a comprehensive set of policies, amounting to what is now one of the most influential bodies of environmental law in the world. Despite a history of the UK resisting and weakening environmental directives from the EU, some of its main achievements have included:

• Significant decline in most industrial sources of air and water pollution, particularly in relation to urban air quality and in tackling diffuse water pollution of our lakes, rivers and beaches. ‘Diffuse pollution’ is that which results from a range of activities including sewerage and farming that, individually, may have little impact, but collectively can have a significant effect;
• A reduction in greenhouse gas emissions and recent rapid growth in renewable energy;
• Significant reductions in adverse human health impacts of environmental pollution;
• A substantially improved system of protection for species and habitats including protection of endangered species;
• Transforming the management of waste by substantially increasing recycling rates;
• Establishing a legislative framework for addressing growing pressures on the marine environment, which is starting to have an effect;
• Traceable food ‘from farm to fork’, which proved effective in the investigations into the horse meat scandal; and
• Imposition of tough safeguards on the use of genetically modified crops and potentially dangerous chemicals.

How does the EU make laws?

In order to understand how the democratic process works within the EU, it is important to understand the respective roles of the EU’s main institutions and how they relate to each other. There are three main players in the EU law-making process. The Council of the European Union (formerly known as the Council of Ministers) is made up of government ministers from each Member State, meeting in various combinations depending on the policy areas being debated. It is not to be confused with the Council of Europe, an organisation that is entirely separate from the EU and was founded in 1949. The Council of the EU shares legislative power with the European Parliament, which is elected by the people of Europe every five years. This employs a system of proportional representation based on the population sizes of the Member States. Being the third most populous EU country, the UK has the third largest number of seats (73). The third body in the tripartite system is the European Commission, which has a civil service function and is therefore unelected.

Other bodies playing a part in the process are the European Council – a quarterly summit meeting of all the heads of state – and countries' national parliaments, which review all proposed EU work programmes and legislative proposals.

(Source: University of Portsmouth European Studies Hub)

The law-making process starts off with the work programme being agreed. The work programme is a list of laws that the Council of the EU, the European Council, the European Parliament, national parliaments and governments, and the European Commission want to see introduced over the next five years.

The process begins with a State of the Union address by the Commission, in which the President defines priorities and strategic objectives for the following year. These are very broad. This is followed by the drafting of the Commission Work Programme for the year, on the basis of a dialogue between the Commission, the European Parliament and the Council. Other EU institutions and national parliaments also comment on the programme. The Commission departments then produce strategic and management plans showing how they will contribute to the Commission's priorities and setting clear objectives and indicators for monitoring and reporting. The Commission will also prepare impact assessments in order to work out social, economic and financial impacts of the proposals, and run public consultations to get feedback on the new idea for an EU law. Thus, in the same way as the UK civil service, the European Commission is tasked with producing the EU legislative proposals agreed in the work programme.

Once the work programme is agreed, the European Commission comes out with the legislative proposals to implement it. Once it has prepared an EU legislative proposal, it sends the proposed regulation or directive to the European Parliament (elected) and the Council of the EU who then discuss the text of the Commission proposal and either agree to it or not.

Comparing this process to arrangements in the UK, notably it is in the annual Queen's Speech that the legislative programme for the year is set out. Although the Queen reads the Speech, it is written by the government. Before the vote on the Speech, Parliament is not consulted on its content and nor are UK citizens. It should also be noted that the UK was on the winning side 87% of the time in Council of the EU votes, and it is very good at getting its way in negotiations. Comparing what each country wants to happen in a negotiation with what actually happens, research has shown the UK to be the fourth most successful country in the EU. If we look at the issues the UK cares about most, it is the second most successful.

How can the EU work for citizens?

According to a report published by the UK government, Parliamentary supremacy is not threatened by our EU membership since both the government and the courts have the right not to apply EU law, although not without consequence. This is because, if the UK government is not doing something properly, then ordinary people can hold them to account by contacting the EU infringements unit, and asking the European Commission to hold the UK government to account. Citizens can also enforce EU law though the national courts. This mechanism has proved very useful for ordinary people trying to enforce their rights, e.g. air quality in Southampton.

Another way in which the EU can work for citizens is the European Citizens’ Initiative. This allows any EU citizen to propose new legislation on matters where the EU has competence to legislate. If a proposal is backed by at least one million signatures, from at least seven of the 28 Member States, it will be considered by the EU.

What would happen to our rights and protections if we left the EU?

If we left the EU, a substantial percentage of our rights and protections would stop applying. This is because EU law applies in the UK in two ways. Directives are passed as law at EU level and then the UK Parliament passes an Act of Parliament implementing the EU law. Regulations apply once they are passed at EU level. As there are many more regulations than directives, once we pulled out, none of the regulations would apply any more, unless we introduced them back into the UK legal system.

Over time, it would be possible to plug those legislative gaps. But to get an idea of the amount of time it would probably take, one can look at the amount of time that it takes for a country to join the EU. This involves aligning a country’s laws with EU law, and is a process that can take anywhere between 10 and 20 years. Pulling out of the EU would involve a reversal of this process, and would in all probability take the same amount of time. Such a messy and time consuming process would certainly not be good for business because of the uncertainty that it would generate. 

When people use the word ‘sovereignty’ they actually mean democratic accountability. It is not at all clear that we would have more democratic accountability if we left the EU.

Addendum 18/6/16

By way of further reading on what the EU institutions do and how they work, we recommend Stephen Dilley's post at https://www.dhirubhai.net/pulse/what-eu-institutions-how-does-law-making-work-stephen-dilley. On the topic of sovereignty, Professor Matthew Weait, Dean of the Faculty of Humanities and Social Sciences at the University of Portsmouth makes some very interesting points at https://m.facebook.com/matthew.weait/posts/10157066453525014.