The UK’s place is in the EU. Re-examining the concept of sovereignty.
Damian Spiteri Ph.D.
This is the first of a series of articles wherein I am arguing that the Brexit referendum was peppered with inaccuracies; and thereby that I am consequently backing the current plea to the British government for a second referendum; or as it is being called, a people's vote.
- What is understood by sovereignty?
A good basic definition of sovereignty is that a country can pass its own laws without interference from any other state. Outside the EU, the UK is clearly a sovereign state. However, does it necessarily lose its sovereignty as part of the EU? Most people who are not well versed on the EU will say that it does. This would be because they know that no EU member states, including Britain, could adopt national laws that are incompatible with European law. This principle of ‘primacy’ or supremacy of EU law has been accepted and applied by national courts including the UK courts. This infers that the UK courts are required not to enforce UK laws to the extent that they are incompatible with EU obligations; and that the UK courts are thereby not entirely free to legislate in any manner that they see fit. Indeed, as part of the EU, Britain, like ALL member-states in the EU, limits its sovereign rights in areas covered by the Treaty of Rome which was signed when the six founding European states created the European Economic Community in 1957. That treaty also created the European Court of Justice.
To understand whether the UK is sovereign or not, therefore one would have to dig deeper into understanding how the EU operates, particularly from a British perspective. Of significance is that the European Communities Act, 1972, placed in UK law the EU treaties and associated legislation; and it also laid down that the British government would be responsible for enforcing these treaties and laws. In practice, this gave the UK government more powers not less powers. This is because apart from passing its own national laws, the UK was also given a voice in federal law-making, that is law-making together with other countries. Explaining this, in practical terms, it is perfectly true that sometimes it makes sense to have 28 sets of laws in 28 countries, because all European member states are different from one another. This is why in Britain, national laws are enacted in the British parliament; and say, in Italy, they are enacted in the Italian parliament. However, if we are to focus on Britain, it is impractical for all laws to be passed (say) by the English parliament. This is because the English also need to lay down obligations how they and other countries should perform if they are not going to have a negative impact on each other. To explain this otherwise, sometimes, like when we are adopting technical rules for fridges, or climate change measures, it is necessary to adopt a common rule-book for the whole of Europe, if any legislation passed is to make practical sense. Carbon emissions don't stop at national borders, so it makes no sense to have the tightest rules in the world in Britain, if others do nothing; or vice-versa. It makes sense to adopt a common rule-book since common rule-books also mean that completely friction-less trade is enabled, consequently, with massive economic gains for all member-states in the EU who share such a common rule-book together.
Does this mean that in participating in this federal type of decision-making, as a member-state of the EU, Britain has lost its sovereignty? The answer is obviously no and this can be seen if we take a hypothetical case that countries in the EU try to undercut the others by having lower environmental standards. Rather than aiming to achieve higher standards and subsequently consolidating these standards and further developing them in a way that is fitting for European countries, standards would fall. The EU offers a promise of a better quality of life for all Europeans, or more specifically, mainly at citizens of its member-states and yet from which all people, sometimes all over the world, can benefit as a result.
2. If Britain is a part of the EU, then it forms part of a club. If it forms part of a club, isn’t its sovereignty restricted?
The Treaty of Rome was signed in Rome in March 1957 by France, the then West Germany, Italy, the Netherlands, Belgium and Luxembourg. Over the years, the EU expanded in size and more and more nations became members through the process of EU enlargement. 28 member-states form part of the EU, although, should the UK leave, this will fall to 27. The United Kingdom joined in 1973, under Conservative Prime Minister Edward Heath. Ireland and Denmark also joined that year taking the number of member nations to nine. In 1981, Greece joined, followed by Spain and Portugal five years later. Austria, Finland and Sweden were added in 1995. Ten Eastern European nations decided to join the club in 2004, bringing Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia into the fold. Bulgaria and Romania joined in 2007. Croatia became the 28th member in 2013.
All these countries are democratic, each have their own parliaments, judiciaries, and so on; and they all pass their own laws in a somewhat similar manner to that undertaken in the United Kingdom, by enacting them through parliament. Contrary to what some people believe though, the EU is not a dictatorial institution, any references to the EU SSR are pure misinformation. Rather, the EU is an ‘open’ federation of states. It is a completely different type of federation to the models used in the US which are closed federations. The key distinction is that member-states retain competence for foreign policy, and hence retain international legal personality. They remain full countries with all the power of countries, in all matters of competence, but only in areas that are NOT federalized. This however does not mean that they are not autonomous only simply that they need to work together with other member-states on such issues as climate change, in which the UK took a pioneering and leading role in bringing about legislation at an EU level. If Britain leaves the EU, it will lose out on the possibility of influencing first-hand goings on in Europe. This disadvantage will also emerge in the context of trade deals, which are essentially about getting another country to change its laws to let one’s products and services in. The more market size a country has, the more it has to offer in return. The UK can never get deals a fraction as good as the EU gets for this reason. It is exceedingly difficult, and certainly impractical, for any country to give itself a false reassurance that it can walk the walk alone.
3. So, the argument presented so far is that, contrary to popular opinion, Britain will be less sovereign, and not more sovereign, when it is out of the EU. This is a little hard to believe. Can you give me a practical example of this?
Well, I only need to look at what Ms. May has suggested as part of her Brexit deal to come up with a very important and cardinal example. This is the area of human rights. Ms. May’s government wants to remove the EU’s Charter of Fundamental Human Rights from Britain’s laws. The argument presented is that Britain can pass its own laws and does not need EU law in the middle of things. However, what is not being accounted for is that there are six main concerns which arise from the loss of the Charter; namely: (1) less power to protect rights since the Charter provides more powerful mechanisms for protecting rights than are available elsewhere in UK law; (2) less flexibility to create new rights extend existing rights, such as the ‘right to be forgotten;’ (3) a lower level of protection for fundamental rights; (4) the creation of gaps in basic human rights, particularly because it includes rights that do not have direct equivalents in other UK human rights law; (5) losing the Charter Principles which can be used to interpret rights and other laws; and (6) the generating of legal uncertainty and confusion, most especially since alternative sources of Charter rights are scattered throughout domestic law, case law and international law. The only way in which all these issues can be dealt with is by keeping the Charter protections in UK law; something which is intrinsic to Britain remaining in the EU. None of these concerns are sovereignty-related. Sovereignty is an irrelevance. In my opinion, the issue at stake here is not whether Britain would be more sovereign without being in the EU but whether Britain needs the EU to be more sovereign.
4. There is all this talk about Britain’s sovereignty. Can Britain effectively ever be rid of EU laws? Can we send the EU people back to where they belong since ‘us Brits can pass our own laws and we do not the EU to tell us what to do for a dime’?
Well, it all depends on your perspective. It is technically possible for Britain, post-Brexit, to send the EU people back to where they belong, and never see or hear of them again. Hoorah! Yet, there is another side to this. It is not practically possible. Judge Forrester - in a paper entitled European Law in the UK after Brexit which has been published in the Judicial Review 2018 23(1), 45-64 - says “in every scenario of which I can conceive as a genuine possibility, EU rules will continue to be of great importance in the UK. This may be due to the continuing influence of EU law in the shaping of the rules governing daily life in our continent; or due to the need to make sense of UK law in a field dominated today by EU law…” The implications of this are that “EU norms will be applicable in the UK even if re-branded as UK national law. With a touch of humor: what Judge Forrester can be interpreted as saying is that if, say, post-Brexit, a person in England opens a factory and does not have the proper waste disposal mechanisms and pollutes a river as a result; and then on being arraigned and/or sued asks his/her lawyers whether the laws the English courts are applying are English laws or EU laws, the lawyers would end up completely off the hook if they do not know the answer. If they answer either way, their answer would be the correct one.
5. So if I am understanding correctly, EU laws will go on existing anyway post-Brexit and will have a very heavy influence on the UK anyway. So, all this talk about Britain being no longer under the jurisprudence of the Court of Justice of the EU – I mean in practical terms not in law-book terms, is a whole lot of hotchpotch. Am I correct in this understanding?
You are perfectly correct. Contrary to what Ms. May’s government has said, even a superficial search for relevant information on the internet would reveal that any treaty between the UK and the remaining member-states of the EU cannot be divorced from the interpretation of the Court of Justice of the EU (CJEU). If the CJEU is not directly involved, any such interpretation would present choices to the UK judges who would have to see how best to interpret the judgments of the CJEU; which will thereby still have some level of forbearing on Britain. In these respects, the EU is inescapable, thereby rendering Brexit simply an exercise in the re-branding of laws. In effect, when Mrs. May’s government says that Britain wants the jurisdiction of the CJEU to end, this could be interpreted as an item on a wish-list. It can be safely assumed that, respectfully, the government is saying that it wants Britain to be alone in the world and rich. However, this is fantasy. Britain needs market access to be rich, and the price others demand for market access is regulatory and policy convergence, and this is what the root philosophy of the EU is all about. To survive, Britain will need to converge, whatever names it gives to its laws.
A case in point is the Common Fisheries Policy (CFP). A common European policy is the best (if not the only) way to manage European fish reserves and protect the marine environment. This is because it can impose quotas and prevent fisherman from making catches of immature fish. Common sense would readily tell us that having the Spanish, Italian, French, British, and Irish fleets all competing independently under national rules for declining stocks in the same Atlantic waters would lead to chaos. It is unlikely that the UK will be able to leave the CFP effectively, since constraints on customs union formation for fishing and aquaculture products are in place. Since I had mentioned earlier on that Britain was a pioneer in the area of climate change in the EU, post-Brexit Britain is likely to find itself facing an obligation to perform according to criteria that are congruent with the 2015 Paris climate change accord, in a course to cut emissions by 45% from 1990 levels by 2030.’ As a side-line to this, the UK currently receives ￡3bn from the Common Agricultural Policy, and this revenue will no longer be forthcoming, if Britain leaves the EU.
6. O.K. So now I am realizing that the definition of British sovereignty extends far beyond simply saying ‘it can pass its own laws.’ I realize that Britain cannot walk the walk alone, and that other EU countries are going to have an impact on it, that post-Brexit, Britain will find it exceedingly difficult to respond to. However, in the referendum people voted to leave the EU? If you are correct in all that you are saying, what did people, in your opinion, vote to leave.
I am afraid I cannot explain why people voted to leave the EU because I do not know what they think about the EU. It is likely that many people have different impressions about different subjects such as the money which is paid to the EU and migration. I firmly believe that when they use terms like the EU SSR, they have no idea what the EU is, for instance, they have no idea that it is an open federation of states, and that the competencies of the EU are on federal issues (which countries would in any case need to legislate on together by means of bi-lateral or multi-lateral agreements; if they are to have any hope of being enforceable and thereby serving instrumental functions). I will be discussing these topics, such as money and migration, with you further in due course - and this discussion will be reproduced in later articles that I intend publishing.
By asking me about the referendum, you have put me in a bit of a quandary state. This is because people voted for remain or leave, in other words they voted for Britain to form part of the EU or else they voted for Brexit. I am in a quandary state since I do not really know what Brexit means. How can I? To be able to know what Brexit means, I would have to be in the minds of all the people who voted (which, is clearly not something I want to do; thank you but no thank you). One of the arguments that I came across somewhere on the web that I found particularly illuminating was describing the referendum as choosing between A or B, Leave or Remain. This would work if A or B were objects. However, Brexit was a cluster of ideas. The question that was asked during the Leave/Remain referendum was more like ‘Do you want an Apple or Any Other Fruit?’ If any other fruit meant, say, an orange, then the question would be a logical one. However, if the other fruit – leave – meant many different things to different people; and some people thought of pears, others thought of bananas, and others thought of oranges, where does this leave us? This ambiguity has not helped along by the fact that the EU is a very complicated beast to understand; and that particularly the leave campaign contained a great deal of misinformation. I hope to be clearing up some of the misconceptions about the EU by writing in the manner that I am writing.
7. What are your concluding remarks?
The whole Remain and Leave campaign has been extremely one-sided. The British people as a whole have asked about the advantages and disadvantages of leaving and/or staying in the EU in such a way that they could easily give the impression that the whole world revolves around ‘me, myself and I.’ When speaking about sovereignty - so far in this article - I have purposefully bought into this me and myself line of thinking, since I thought that in doing so, my communication would be clearer. However, when reflecting on the influence that European laws have on Britain, we also need to think about the influence that Britain has on European laws. So, I would like to end off by asking: What benefit can you put to the EU working together as a block, and getting the rest of the world to sign the Paris agreement? 28 countries could not do that if they were left to their own devices. They could only do that together. How do you quantify these things? Then there's the security dimension, keeping Europe politically stable, and not having war. Now, what value do you give to that?
Damian Spiteri Ph.D. is a specialist on education and has published a book entitled Multiculturalism, Higher Education, and Intercultural Communication (Palgrave Macmillan). https://www.palgrave.com/gp/book/9781137513663 He is currently working on other books in the education field.
(The author would like to thank Dr. Ken Mifsud Bonnici, a lawyer who works at the European Commission) for taking the time to read through earlier versions of this paper, to suggest revisions, and, above all, for his kind permission to insert excerpts from his feedback directly into the above text. The author also wants to thank Eric Formosa for the illustration).
References:
Forrester, I. (2018). European Law in the UK after Brexit, Judicial Review 23(1), 45-64