The single most important criticism made by the Vote Leave campaign in the current European Union (EU) referendum is that Britons should vote for their politicians who in turn should decide their own laws, rather than politicians from other nations. This boils down to a matter of British sovereignty and whether the UK is being drawn into accepting legislation that is emanating from the European Commission (EC) and European Parliament (EP), rather than from the British Parliament. If Britain has become a “captive” state and EU-imposed competences are out of kilter with those of the nation state, in this case the House of Commons and House of Lords, then democracy is undermined.
If this simple but powerful argument is correct, then I too would be fearful of the overweening power of “Europe” as opposed to those who are elected by us to represent us. So it is worthwhile examining the potential loss of sovereignty in more detail.
The UK to keep out of what has now become the EU from the point when it was established in 1952 (European Coal and Steel Community). Its membership was then vetoed by the French (1963 and 1967) until 1973 when Britain joined the European Economic Community (EEC). It took over a decade of determination on the part of the UK to join the EU. Britain did not join on a whim but on the basis of a hard-nosed calculation of the balance of benefits that the UK would gain from joining. In 1975, a majority (67%) of British voters chose to remain in the EU, following a hard-fought first EU Brexit referendum. Britain joined and chose the remain in the EU fully cognisant that as a result it would be voluntarily and willingly pooling some aspects of UK national sovereignty with what was then the EEC. This was nothing new or unusual: all nations do this to some degree where they see the benefits of doing something which is cannot be achieved on their own. Classic examples, apart from joining the EU, are the United Nations (UN), the World Trade Organisation (WTO), North Atlantic Treaty Organisation (NATO), etc. These agreements amplify the UK’s power and influence at the global level.
UK vs EU sovereignty
There is a pervasive viewpoint in Britain that it thought it was joining a trade agreement, rather than a political one. All commentators agree that the EU has always been first and foremost about avoiding future wars in Europe, something which the EU has done very successfully. So much so that it, rightly, received the Nobel Peace Prize in 2012 for six decades of advancement of peace, reconciliation, democracy and human rights in Europe. There is no diagreement about the fact that it was always a political project which went beyond trade, indeed trade was not even a reason for the EU receiving the prize. If the politicians in the mid-1970s chose to highlight the trade angle to the nation during the lead-up to the EU Referendum, it was their choice (just as immigration is the topic of choice this time around). But this underestimates the broad and intense nature of the debate that took place in the mid-1970s. It was never just about trade so Britons were not sold a pig in a poke by their own politicians.
Also, it is frequently claimed that too much of the legislation comes from the EU. No one has been able to pin this down precisely but estimates vary from 7-70%. The House of Commons Library has undertaken a comprehensive analysis how the extent of ‘EU influence’ in UK laws and concluded that: “it is possible to justify any measure between 15% and 50% or thereabouts”, depending on the approach. It noted that 15-17% of UK law is derived from EU membership, but about 50% of UK legislation with “significant economic impact” originates from the EU. It is up to each one to decide what is too much. But perhaps it is more enlightening not just to ask how much originates from the EU but to assess the degree to which such law is useful or not (see the Balance of Competences review below).
Another point to note is that all the EU directives, regulations, treaties, etc, take years to develop, which allow all nation states, Members of European Parliament and stakeholders to engage with the process of developing new laws and regulations within the competence of the EU. Each national parliament decides whether to accept or not and in recent times, national referendums have scuppered draft EU Treaties. The days of a “single speed” EU are long gone and nation states can opt out if they so desire and Britain regularly chooses this option.
In joining the 8 other countries, now 28 following further enlargement, the UK is closely involved in the process of making the EU legislation. It is not simply a matter of fighting for the national interest, something which Britain as one of the big beasts of the EU is able to do. Compromise was and remains the name of the EU game. However, whenever push comes to shove and Britain bangs on the EU desk, it has got what it wants. This includes Margaret Thatcher’s rebate, the various opt outs such as from Schengen and now the EU special accommodation of Britain’s needs in advance of the EU referendum on the 23 June 2016 (see below).
It may have chosen to pool its sovereignty in the mid-1970s but the fact is that Britain can opt out of the EU at any point of its own choosing. The British government does not even need to hold a national referendum to leave. If the British government decided upon Brexit tomorrow, it could exit the EU simply by dissolving the European Communities Act of 1972. Permission would not be required from either voters or the EU.
On the basis of the preceding points, it is evident that the UK is a sovereign country that chooses to engage with the EU, that it can opt out of EU treaties and other legal instruments that it does not agreed with and that it can regain control of all the elements of its sovereignty that it currently chooses to pool authority with the EU in order to achieve goals that it would otherwise not be able to do on its own. This is the very essence of sovereignty.
… Shake it all about (or the Balance of Competences Review)
If Britain remains a sovereign country and is able to abolish the European Communities Act whenever it likes, which is after all the whole point of the forthcoming EU Referendum, what are the competences that it has chosen to pool with the EU and do these make sense?
At the end of the day, what really matters is not whether laws and regulations originate from the House of Commons or the EU but whether such laws contribute to our economic, social and environmental well-being or not. The public concern about a potential or actual loss of national sovereignty compared with a gain of “unelected” and “Eurocratic” powers is what led directly to the Review of the Balance of Competences between the UK and the EU which was initiated by the UK government in 2012 and completed in 2014.
The Treaty of Lisbon (2009) sets out the exact competences or the areas where Treaties give the EU competence to act, including giving EU institutions the power to legislate, to adopt non-legislative acts or to take any other action. The type of competences vary:
- EU has exclusive competence: only the EU can act such as customs, competition, international agreements, etc.
- Competences are shared between the EU and the member states: the member states can act only if the EU has chosen not to such as consumer protection, environment, transport, etc.
- EU has competence to support, coordinate or supplement the actions of the member states: EU may not adopt legally binding acts that require the member states to harmonise their laws and regulations such as health, economy, employment, social policy, etc.
The UK government undertook an official review of a whole raft of EU competences, including the following 32 documents:
|Report title||Lead department / ministry|
|1||Single Market: Free Movement of Goods||HM Revenue and Customs|
|3||Animal Health and Welfare and Food Safety||Department for Environment, Food and Rural Affairs|
|4||Health||Department of Health|
|5||Development Cooperation and Humanitarian Aid||Department for International Development|
|6||Foreign Policy||Foreign and Commonwealth Office|
|7||Single Market: Free Movement of Goods||HM Revenue and Customs|
|8||Asylum and Non-EU Migration||Home Office|
|9||Trade and Investment||Department for Business Innovation and Skills|
|10||Environment and Climate Change||Department for Environment, Food and Rural Affairs|
|11||Transport||Department for Transport|
|12||Research and Development||Department for Business Innovation and Skills|
|13||Culture, Tourism and Sport||Department for Culture, Media and Sport|
|14||Civil Judicial Cooperation||Ministry of Justice|
|15||Single Market: Free Movement of Persons||Home Office|
|16||Single Market: Free Movement of Services||Department for Business, Innovation and Skills|
|17||Single Market: Financial Services and the Free Movement of Capital||HM Treasury|
|18||EU Budget||HM Treasury|
|19||Cohesion||Department for Business, Innovation and Skills|
|20||Social And Employment||Department for Business, Innovation and Skills|
|21||Agriculture||Department for Environment, Food and Rural Affairs|
|22||Fisheries||Department for Environment, Food and Rural Affairs|
|23||Competition and Consumer Policy||Department for Business, Innovation and Skills|
|24||Energy||Department of Energy and Climate Change|
|25||Fundamental Rights||Ministry of Justice|
|26||Economic and Monetary Policy||HM Treasury|
|27||Police and Criminal Justice||Home Office, Ministry of Justice|
|28||Information Rights||Ministry of Justice|
|29||Education, vocational training and youth||Department for Education|
|30||Enlargement||Foreign and Commonwealth Office|
|31||Voting, Consular and Statistics||Cabinet Office, FCO, National Statistician’s Office|
|32||Subsidiarity and Proportionality||Foreign and Commonwealth Office|
The House of Lords, in its assessment of the review of competences, stated that: “The Review was an ambitious, indeed unprecedented, exercise. The production of the reports, broadly within the projected timetable, was a considerable achievement. We believe that, for the most part, the individual reports within the Review give a fair and neutral assessment of the balance of competences between the EU and the UK.” The House of Lords did express disappointment that: “… no consideration was given to the Justice and Home Affairs measures subject to the block opt-out decision” and the “… lack of balance in the Single Market: Free Movement of Persons, Animal Health and Welfare and Food Safety and Fisheries reports” as well as the lack of “… a final report that could reflect upon cross-cutting areas, such as inter-institutional agreements and flexible integration.”
These are quibbles with what was a thorough, transparent and comprehensive process carried out by the British public authorities, experts and stakeholders. No one questions the overall conclusion of the balance of completeness review, which is that there is nothing fundamentally wrong with the balance of EU competences in the UK. Had this not been the case, you can be sure that the Leave Campaign would be using this treasure trove of information.
What was prioritised by the UK for EU reform?
Now that the Government, the civil service and a multiplicity of stakeholders across all 32 reviews have had their say and overwhelmingly agreed that the balance of competences is broadly appropriate, what did the Government chosen to push for reform in the EU?
After a drawn-out period of public posturing, the British government set-out the government’s basis for renegotiating the terms of the UK’s membership ahead of the EU referendum in a letter to Donald Tusk in November 2015. The UK’s demands focused on four issues:
- Eurozone: explicit recognition that the euro is not the only currency of the EU to ensure countries outside the Eurozone are not disadvantaged, including ensuring that deeper financial union cannot be imposed on non-Eurozone members and that they also UK do not have to contribute to future Eurozone bailouts;
- Competitiveness: a target for reduction of excessive regulation and extension of the single market;
- Immigration: restriction of access to in-work and out-of-work benefits to EU migrants until they have been resident for four years or an “emergency brake” to stop the payments for four years is being discussed as a compromise;
- Sovereignty: allow the UK to opt out from the EU’s ambition to forge an “ever closer union” of the peoples of Europe so it will not be drawn into further political integration and giving national parliaments greater power to block EU legislation.
What has Britain got from the EU?
The EU has generally played ball with the UK’s requests – nothing would be worse to the EU than losing one of its key members, especially when the refugee and Eurozone crises continue to rumble on. The outcome is the following:
- Emergency break: a four-year freeze on in-work benefits for EU citizens working in the UK but this will only apply for new EU migrants for a period of 7 years. Thereafter the emergency break cannot be extended;
- Child benefit: instead of stopping all child benefit payments going to children living outside the UK, whose parents are working in the UK, child benefit will be indexed to the cost of living for children living outside the UK to new arrivals to the UK and to all workers from 2020;
- Eurozone vs rest: the top item was safeguards to protect countries outside the eurozone against regulation made by those inside. The UK got its wish: any non-Euro country will be able to force a debate among EU leaders about ‘problem’ eurozone laws. No country has a veto but can discuss, amend or delay Eurozone laws.
- Ever-closer union: the UK wanted a declaration that this would not apply and got this: “It is recognised that the United Kingdom … is not committed to further political integration in the European Union … References to ever-closer union do not apply to the United Kingdom.”
Given that the EU involves 28 countries with diverse needs and priorities, the UK did not receive as bad a deal as many Britons and segments of the media maintain. Many EU member states were not exactly ecstatic about what they perceive as yet another example of Britain threatening to throw its referendum dolls out of the EU pram if its national interests are not accepted. When push comes to shove, each nation must do what it has to, while still rubbing along with the others around the negotiation table.
British sovereignty: our way or the Highway?
The UK remains a sovereign state. It can withdraw from the EU at any point that Parliament chooses to. It does not need a referendum or approval from the EU. This is the essence of sovereignty and Britain (and all other 27 EU nation states) retains it. Britain is involved in all treaties, directives and regulations. It can influence them and it can choose to accept them or opt out of them, a right that it regularly exercises, as do other nations.
An estimated 15-17% of UK laws originate from the EU and an estimated 50% of its important economic laws originated from the EU. But the issue is not what percentage originates from the EU, a process that Britain is closely involved in. The real issue is whether such legislation is valuable or not: perhaps this is a point recognised by the Vote Leave campaign, which is why they have been strangely quiet on this issue.
The UK has gone through the most comprehensive assessment of the competencies of the EU ever conducted involving 32 detailed reviews, extensive consultations with British stakeholders, including civil servants, professionals and other experts. The conclusion was that the balance of competences between the UK and the EU (arising from the EU legislation) is appropriate.
On the basis of the evidence, the British government has sought a new EU deal for Britain, prior to the referendum, focusing on: Eurozone, competitiveness, immigration and sovereignty and the EU has agreed to various changes. These do not amount to a fundamental change in the relationship with the EU but are a considered response to Britain´s self-defined priorities for reform. Whatever the EU agrees to must be acceptable for all 28 nations and it was never feasible to find a compromise that could satisfy the Brexiteers.
- Is the EU sovereign over the UK Parliament: EU legislation affects 15-17% of UK law and up to 50% of economic legislation according to the estimates that have been made.
- Is British sovereignty compromised by EU competences: Britain is a key part of the process of making laws and regulations in the EU. Britain has secured-opt outs from EU treaties, directives, etc. The British government chooses to pool British sovereignty with 27 other countries in order to achieve what it cannot do on its own such as legislation affecting the environment, countering terrorims and the common market.
- Should I vote to leave the EU because of lack of sovereignty / balance of EU/UK competences: Britain can choose to leave the EU whenever it chooses to. There is not need to hold a referendum. It has the ultimate decision-making power. The unprecedented EU review concluded that there is nothing fundamentally wrong with the balance of EU competences in the UK. The EU has responded to the British priorities for EU reform. As one of 28 countries, Britain cannot always get everything that it wants. Compromise is the essence of the EU game.
© Ricardo Pinto, 2016, AngloDeutsch™ Blog, www.AngloDeutsch.EU