From the very beginning of the debate over Britain’s place in Europe, it has been argued that membership of the EU and its predecessors would entail a loss of ‘sovereignty’ for the UK. It has also been claimed that the institutions of the EU are ‘undemocratic’ and ‘unaccountable’ compared to those of the British state. Simon Deakin argues, however, that today a Brexit would return the UK to its pre-modern constitution.
To evaluate these claims, we need to consider the relationship between UK domestic law and EU law. This relationship is complex because of the unusual nature of the constitutional arrangements on both sides.
Britain lacks a codified constitution, which puts it in a unique but not particularly desirable position among liberal democracies. The result is that power is routinely exercised within the British state in ways which are neither democratic nor accountable. Membership of the EU is the nearest thing the UK has to a constitution which protects human rights and the rule of law. To support Brexit is to argue for a return to the constitutional ancien regime which prevailed in the UK prior to the 1970s.
How can this be when we are constantly told that Britain has a uniquely stable and effective ‘unwritten’ constitution which can be traced back to the origins of the rule of law in Magna Carta itself? The unwelcome truth is that Magna Carta has no more status than any other legal enactment and, as a medieval document of uncertain meaning, arguably somewhat less.
Take one of the cardinal principles of the rule of law as set out in Magna Carta, namely that justice is not a commodity (‘to no one will we sell… justice’). This principle is regularly infringed in Britain today, as a result of changes brought about under recent governments. For example, from 2013, claimants in employment cases must pay fees of several hundred pounds to take their case to a tribunal. In effect they have to buy access to justice.
Britain’s uncodified constitution places no constraint on the marketisation of civil justice. Thanks to the doctrine of Parliamentary sovereignty, even a law apparently as fundamental as Magna Carta can be overridden by a legal instrument adopted by a simple legislative majority or by the exercise of ministerial power in the form of delegated legislation.
The Sovereignty Delusion
The doctrine of Parliamentary sovereignty is meant to be a cornerstone of British democracy. Sovereignty means, in this context, that no Parliament is bound by its predecessors. As the House of Lords is unelected and essentially a reviewing chamber, while the monarch’s power to veto laws is never exercised, power vests in what a Conservative politician and senior lawyer, Lord Hailsham, referred to in the 1970s as an ‘elective dictatorship’.
Defenders of this model claim that it allows for the democratic will to be directly reflected in legislative and governmental action. Another way of looking at it is that political power in Britain is exercised, between general elections, without the checks and balances which are taken for granted in other liberal democracies. If the UK has a constitution at all, it is a pre-modern and unreformed one, which lacks the means to hold the British political class to account on a regular and continuing basis.
Ministers now arguing for Brexit complain that EU law stops them doing what they would like to do. But what this means in practice is that constitutional checks and balances which are normal in other countries are being brought to bear on the actions of British ministers, through the route of EU law.
Let’s now examine EU law making in more detail. EU laws are essentially of two types. The first type consists of rules aimed at creating the single European market. These include the rules which require the member states to respect free movement for goods and services, and which standardise the production and circulation of goods and services. If the UK were not in the EU, many of these rules would end up being binding by other means, through membership of the World Trade Organization and via bilateral trade agreements. Brexit would change the rules on movement of labour, but unless the UK wanted to cut itself off entirely from the global economy, rules governing cross-border labour flows would still be needed. It is currently the case that most migrants entering the UK to work come from outside the EU.
Thus, as long as the UK wants to be part of the global trading system, transnational rules on trade and migration, and on product standards, would still affect the British economy. If the UK stays in the EU, British citizens can exercise more influence, not less, over the making of those rules. This is partly because being in the EU means that the UK has a say in making the rules of the single market, which would not be so if it were in the position of Norway or Switzerland.
But EU membership also means that the UK can have a more effective voice in the design of the transnational trading regimes. Thanks to the collective negotiating strength of the EU, the UK has more of an input into WTO rules and trade agreements than would be the case if it negotiated these deals in isolation from its European neighbours.
The second type of EU rules are human rights protections of the kind contained in the EU Charter of Fundamental Rights, general principles of EU law, and various parts of Treaties, directives and regulations. It may be argued that these rules are precisely the type of laws which British ministers should be constrained by.
EU’s Neoliberal Turn
The problem with these EU rules is not they are too strong, but that they are too weak as constraints on national governments. EU law is a patchwork quilt, which is selective in the human rights protections it confers, and it is weighted in favour of economic interests at the expense of social and environmental protections. It is not enough of a bulwark against the erosion of the rule of law, which will be the inevitable consequence of the policies of marketisation currently favoured by British political elites. EU law is becoming more neoliberal over time, largely as a result of rulings of the Court of Justice which have elevated economic freedoms over social rights.
So what is ultimately at stake in the Brexit debate? It is only partially about Britain. A British exit would return the UK to its pre-modern constitution. For the EU, Brexit could favour a rebalancing of EU law in favour of social and environmental rights. But it is more likely that the neoliberal turn in EU law would continue as there are many factors now driving it, separately from British influence. The EU, as much as the UK, is in need of a constitutional settlement which addresses the risks posed by market fundamentalism.
What if the UK votes to stay in? The danger here is that a British ‘near miss’ will discourage attempts to reverse the EU’s recent neoliberal turn. If that happens, the supporters of Brexit will have got much of what they wanted. A vote to remain must be the trigger for the strengthening of democratic institutions in both Britain and the wider EU.
This post first appeared on Social Europe and it represents the views of the author and not those of BrexitVote, nor the LSE. Image by Coolcaesar.
Simon Deakin is Professor of Law and Director of the Centre for Business Research (CBR) at the University of Cambridge.
Academics love the EU because it panders to elitism & their elite “ideas” are simply accepted & become policy, rules & law [followed by disaster].
Where was the democracy in creating the single currency disaster?
Where was the democracy in creating border-free Europe disaster?
To lecture the people in this manner is typical of the ilk.
It is disturbing how frequently the Leave side of the Brexit debate seems to resort to ad hominem pseudo-arguments about who has made a point, rather than responding to the actual point made. I find it bizarre that someone with particular expertise on a subject should therefore be deemed to have no right to express an opinion about it – because their occupation as an academic somehow makes them part of an all-controlling elite that seeks only ‘to lecture the people’. ‘The people’ is a wonderfully vague category which Brexiteers feel confident both to speak on behalf of, and to exclude from ‘the people’ any people with too much actual knowledge. Surely academics have as much right to express an opinion as anyone else, and their arguments should stand or fall on their merits, like anyone else’s.
Simon Deakin`s rather pained response is itself instructive; “particular expertise on a subject” means a particular opinion on a subject which the author has studied- no more than that. There is zero evidence that the collectors of “expertise” are in any way more prescient than any other person.
I myself do not recall stating that Simon Deakin had no right to voice an opinion. So, what is the problem?
Is he complaining that there is some element of unfairness perhaps. Is he not being granted deference that he feels entitled to?
This is the kitchen.It gets hot here.
It tells us something about the state of the Leave campaign’s concern for factual accuracy that Jim Farr does not seem even to have read the name of the author of the previous comment – which was not Simon Deakin but myself (ie someone who has never met him, but happens to be on the same side of the referendum argument).
Nor was I suggesting that Deakin should be granted automatic deference on account of his expertise: I was simply arguing that his arguments should not be unthinkingly rejected simply because he happens to have expertise on the subject, which would be a strange state of affairs indeed. I am glad that you support Deakin’s right to voice an opinion – but everyone is entitled to have their arguments considered on merit, not dismissed on account of membership, or supposed membership, of any particular social group (an ‘ilk’, as you put it).
As for the actual content of Deakin’s argument, that is for him to defend.
The premise is pure sophistry, and surprising coming from a Professor of Law in the England. The non-binding of future Parliaments is just a small piece of the quilt of English constitutional law. I recall spending a good deal of time in my first year studying English law learning the official take on all the good professor gentleman disparages, not the least of which was the concept that an unwritten constitution can nevertheless be a constitution, and while the English judiciary will defer to the will of Parliament in interpreting and applying the Acts of Parliament and its delegated, they will nevertheless step in and check the Executive organs when they act ultra vires, capriciously, or even contrary to the will of Parliament. I’d rather take my chances with an English judge than the CJEU or the ECtHR, but I guess that is just a matter of personal preference.
I’m not sure I understand how rules coming out of the unelected European Commission and promulgated into local law by things like Acts of Parliament or Statutory Instruments enabled by Acts of Parliament can possibly be more democratic than Acts coming directly from Parliament itself; it is an argument only an academic can love. As for the EU providing a constitution, I would ask the gentleman to point to it. There are a number of treaties, including the TFEU, which govern how the EU might act, but there is no proper EU constitution that governs how it may not act vis a vis the member-state governments and the people themselves.
As to the will of Parliament, it refers not merely to what the elected House and its leadership want, but in theory to the Crown and both houses acting in concert to ensure the prerogatives of each and the interests of the people and the polity of the UK are taken properly into account. I would again contrast this to the unelected European Commission who are calling the shots. Lords may be unelected and currently only function as a review body, but they could assert themselves if they as a body felt matters they were reviewing were unwarranted, as could the Monarch by not providing assent … those are checks and balances that although they are rarely used are nevertheless still a part of the UK Constitution and which have no obvious analog at the European level.
Yes, you have a European Parliament and a European President, but these functions are even more functionary than the one in place in Westminster, so again, I must as, how is this better than the system that has evolved over nearly a millennia?
Yes Mr. Gordon I got your name wrong. Sorry about that but my eyesight is not good [I use a magnifying glass]. I am in this business since 1962 when I was a member of the Anti Common Market League.
You are wrong of course as you fervently believe that you have a crystal ball & that your adding up this number & that figure gives you the perfect score & logic.
You clearly think logic is with you.
I remind you that logic is not certainty. It is no more than a simple process to get quickly to an option. No more than that. Women are good at grasping this but most men are not. A fault-line.
Those for Brexit however are basing their commitment on emotion & I am sure that Brexit is the right thing to do.
After Brexit we will do a deal with the family, then bring about other big economies to form [for example] APTA for an Atlantic Pacific Trade Association. Thus we do not need to spend donkeys years scooting around the World doing deals. They will come to us.
No one in their right mind objects to big markets but the EU & the euro-zone are scary. After the French led disaster of the 1854 LMU single currency debacle I would have thought that no one would follow them again – but there we go.
The real problem with a “Big idea” is that it usually takes on a semi-religious significance & cannot be challenged without being seen as a traitor.