Yes, It Does
Martin Bontea
The Brexit/Remain debate is messy brawl of statistics, prime time debates and prophesising. Some will have you believe that your vote should be cast on the basis of the most important statistic or professional opinion; either one forecasting our economic ruin, or one that maintains that Britain will continue to prosper.
Given the slippery debate floor, the electorate should avoid falling into the murky political soup of the Brexit question. Instead an account of the history of British Sovereignty serves as the best explanation as to why membership of the European Union encroaches on our sovereignty. Whilst this might not in itself be a bad thing, those like myself who admire the British form of government cannot help but feel dissatisfied at the lack of firepower that our Parliament once had.
British Constitutional history is complicated, similar to no other and has undergone many changes. Historically the fight for power in this country was between the forces of the King and those of Parliament. There is no real Montesquieu-style tripartite separation of power, for the executive and the legislative powers are fused (as the government sits in the House of Commons). By the 19th century, Bagehot declared that the efficient secret of the British form of government was this cabinet government (the crown in parliament), due to its ability to carry huge legislative influence into the commons. Dicey noted that Parliament had the unfettered freedom to make any law whatsoever, and no other body had the right to overrule it. In the absence of a written constitution, Vernon Bogdanor described our constitution as one defined by these historical struggles for power; the famous eight worded constitution to writers became, ‘What the Queen in Parliament enacts is law’.
This was the strength and the force behind the British form of government. It was uncompromising, efficient and therefore hugely unpopular amongst our European counterparts. But our constitution was weak (seen as flexible to some) in the sense that it was vulnerable to political change.
The real damage to our sovereignty was done in 1972 when the European Communities Act was passed through the British parliament. The ECA was a fundamental piece of legislation in our membership of the EU. Subsequently it became impossible for the British Parliament to pass law that was contrary to EU law. As Lord Hope put it ‘The doctrine of the supremacy of Community law restricts the authority of Parliament to legislate as it wants in this area’. It seems as if sovereignty in 1972 was used to pass legislation that would undermine future sovereignty. Edward Heath’s Conservative government can take credit for discreetly wounding the old constitutional principle. For whilst our sovereignty is formally preserved, and Parliament retains the right repeal the ECA, the political realities suggest otherwise. Parliament would realistically not be able to face the political consequences of doing such a thing without consulting the people in a referendum, as we are seeing now. The irony is that huge political support is needed to repeal the Act, despite the fact that it was passed without any such consideration.
The implications of the ECA were seen in the Factortame case. Here the European Court of Justice found that a provision in the Merchant Shipping Act (1988) unfairly discriminated against non-British fishermen from fishing off Britain’s coast and was therefore incompatible with European law. As a result, the House of Lords had to disapply certain sections of it to meet its European obligations. In the pure sense, British sovereignty to make its own decisions, free from influence was clearly undermined.
Nowadays, when acts are incompatible with European law, our domestic courts will issue Declarations of Incompatibility and it will be up to Parliament to use its sovereignty again to mend it.
Those who say that Parliamentary sovereignty, in the pure sense, remains preserved in the European Union are misled. As I have already said, the sovereignty is formally preserved, as any law can still be passed. But in reality, Parliament would then be made to change those laws by political force in order to meet the will of the EU and of the 1972 government.
The EU is not blame-free however. Indeed those on the continent also seem to have misunderstood the British constitution. In requiring that Community law be supreme for every member state, the Union failed respect the integrity of the British form of government. It was far easier for other European states, which already had written constitutions, to adapt to a legal constitutionalist agenda of restrictive government. Britain’s political constitution was pure, limitless and incompatible with this philosophy of government.
Take what you will from this article, but remember that EU law can only take so much of the blame for hurting our sovereignty. It was our own government who in 1972 fundamentally altered the key to our historically fragile constitution, by giving EU law direct and supreme effect.
No, It Doesn’t
Aileen O’Hagan
Sovereignty, power and democracy are buzzwords in the EU debate. We need more power to control our borders in order to protect national sovereignty and British democracy. But what do these words mean?
In order to convince you to vote Remain, lets look at the bigger picture, beyond micro –economics, party politics and immigration statistics. It is clear that the UK will have less bargaining power on an international level if we vote for a Brexit.
Sovereignty is linked to old style politics associated with keeping the enemy at bay and maintaining control within. National Sovereignty means: the autonomy of a state to self-rule and to protect its territorial borders. This definition originates in 1648 from the Treaty of Westephalia a time when Kings fought on horseback protecting their lands. Sovereignty has always revolved around power and old fashioned sovereignty is about protecting borders. But modern day sovereignty surely is about power and influence, which can now only be achieved through international institutions. Today we find the modern world characterised by this wonderful thing called globalisation (hello instagram and online banking) and free trade- this is where we find international power lying, not in sovereign states.
Sovereignty has evolved and today is not about controlling borders but the ability to participate in global markets and negotiate within the system. That system for us in the EU and overall it has been working pretty well. The EU is the largest trading bloc in the world and the UK has the second largest economy within, and the fifth largest globally. Money equals power and that power derives from being a player in the system. As a top dog in the EU we have the power to negotiate affairs in our favour. Whether you agree or not if that power has been used effectively, is a discussion for another time. Being inside the EU is beneficial in the long run as the UK will retain a platform to exert its influence from the inside.
Geographically the EU will still remain our closest trading partner and major events that are viewed as threatening, are transient and will pass with others sure to emerge.
Intellectual and MIT professor Noam Chomsky has said that ‘The EU offers some kind of independent and (by comparative standards) constructive option in world affairs, and could do more. With Brexit, it [the UK] will be weaker, and Britain will be even more a colony of the US. Britain will also lose the advantages of closer interactions with (a relatively) civilized Europe’
Modern day sovereignty is about influence and not protectionism. Moving beyond the economic market, international security and the environment are central issues affecting all, and without international collaboration these issues cannot be addressed effectively. If the UK wants to remain a global influence it must not become isolationist and weaken its influence in Europe. We are living in tough and unpredictable times but lets not cut off our nose to spite our face. I don’t think the EU is perfect and reform is required but without being involved how can we influence international concerns in our favour? Regardless of whether we are in or out, the economic market, international security and the environment will continue to affect us, so it is best to keep hold of the power we already have than throw it away.