Wednesday, 22 June 2016

That EU Vote - 3. Sovereignty

Sovereignty comes in two forms. Internal sovereignty refers to the ultimate authority of the state: who is in charge. External sovereignty concerns the exchange of rights and obligations between states: what they grant each other. One is foundational, the other contingent. Outside of the single market, the UK has pooled relatively little sovereignty in the EU. While the free movement of labour is an issue of external sovereignty (i.e. the rights accorded citizens of other states), the language used in the referendum has focused on internal sovereignty: "taking back control". This echoes the concerns of the Out campaign in 1975 for whom continued membership of the EEC threatened parliamentary sovereignty and therefore (in the eyes of the left) the ability of a future government to implement socialist policies. While the current Leave campaign talks in more cartoonish terms ("Brussels makes most of our laws"), the issue remains the same: there should be no constraint on the "elective dictatorship" of the Commons.

In most countries, there is a distinction between the sovereign (whether the people or a constitutional monarch) and the legislature, which easily maps onto the distinction between internal and external sovereignty. The government can freely negotiate matters of external sovereignty, subject to electoral approval, without compromising internal sovereignty. The peculiarity of the UK system is the idea of parliamentary sovereignty, "the Crown in Parliament", which locates the ultimate authority of the state in the legislature and thus combines the external and the internal. This is a relic of Britain's incomplete revolution in the 17th century, which has left us with an essentially aristocratic form of government onto which representative democracy has been grafted but without any concept of popular sovereignty. One consequence is that British politicians have traditionally regarded national referendums as foreign to the UK system, being by definition a challenge to parliamentary sovereignty.

Paradoxically, just as the UK system means that we do not need a referendum to endorse any act that cedes sovereignty (e.g. the Maastricht Treaty), so we cannot cede sovereignty in perpetuity because Parliament can always repeal any prior act. When EU law has been accepted as superior by the UK courts, this has been on the basis that a UK law has mandated that superiority. Contrary to the claims of the Leave campaign, not only has external sovereignty not been irrevocably ceded, but internal sovereignty has not been compromised. For the same reason, the government will not be legally bound by the referendum decision, whichever way it goes, because that would be a constraint on parliamentary sovereignty. Of course, in the event of a Leave vote, any government attempt to delay Brexit could prompt a motion of no confidence, leading to a General Election, and a new Commons majority (potentially) willing to enact the decision.
The Leave campaign's criticism of the EU's dilution of national sovereignty associates the general erosion of democratic control during the neoliberal era with a single political structure. Ironically, the EU is one of the more democratic neoliberal institutions. With no sense of absurdity, the Leave campaign offers up other, non-democratic supranational bodies to whom we have ceded external sovereignty, such as the WTO and NATO, as reasons why we don't need the EU. Neoliberalism has reduced popular sovereignty both by transferring public goods to the private sphere and by privileging the rights of international capital. In doing this it has effectively raised the market to the status of a sovereign, justified not on the basis of any a priori claim to legitimacy but on a utilitarian assumption of efficiency.

In contrast, popular sovereignty holds that the people are right even when they are wrong and that optimality is not an adequate reason to usurp the general will. We've all had a laugh at Michael Gove's contempt for experts, but most people fail to see that he is thereby challenging parliamentary sovereignty, which is potentially revolutionary. That he is Lord Chancellor only makes it more surreal. What is in play on Thursday is not just our continued membership of the EU but the constitution of the state. Devolution created the concept of popular sovereignty in Scotland, and the SNP has thrived by seeking to embody it in the absence of a Scottish constitution. When Cameron promised "English Votes for English Laws" in the wake of the Scottish independence referendum, he was seeking to placate the demand for English popular sovereignty through a fudge of parliament. But this cannot work: parliamentary sovereignty and popular sovereignty are mutually-exclusive.

If we vote Remain on Thursday, it is highly unlikely we will see any further significant pooling of external sovereignty in the EU by the UK. This is because major EU initiatives (if any) are likely to bias towards the Eurozone core, and because the closeness of the referendum outcome will constrain UK governments for a generation. No one is going to risk a substantive concession for fear of invoking demands for a further referendum. The precedent has now been established and, when you consider the triviality of the "renegotiated terms" that we are supposedly voting on, the bar has been set very low. If we vote Leave on Thursday, few of the concessions of external sovereignty that we made to the EU down the years are likely to be reversed, simply because we will need to offer them again to secure advantageous trade terms. The "bonfire of red tape" will concentrate on internal regulations that don't impinge on trade, such as workers' rights and consumer protection.

UK referendums are failures of parliamentary sovereignty because they hold out the prospect of popular sovereignty. This would be a good thing if it led to a new constitutional dispensation, starting with the abolition of the House of Lords and the declaration of a republic, but the 2016 referendum, with its lies and xenophobia, looks more like the early days of a plebiscitary dictatorship, which is significantly more dangerous than an elective dictatorship. Geoffrey Wheatcroft recently quoted Attlee's antipathy to referendums in 1945: "I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum, which has only too often been the instrument of Nazism and fascism". But Attlee made a mistake in the postwar years in not seizing the moment to advance popular sovereignty through constitutional reform. Labour's ongoing failure, for which Tony Benn was as guilty as Tony Blair, has been to champion parliamentary sovereignty in the hope of exploiting "elective dictatorship".

To conclude. Were Brexit to happen, the economic impact would be negative, though most of the downsides, such as lower foreign direct investment and a doubling-down on our lopsided economic profile, will largely be the result of political judgements by foreign and domestic capital rather than inexorable economic logic. As we've got closer to the vote, it has become clear that the issue of immigration is a mess. Newspapers have whipped up expectations, of better public services and higher wages, that cannot be satisfied. The political response, whether advocating a points system or greater understanding, has been incoherent at best and craven at worst. Xenophobia has been normalised and political assassination has visited our streets. The issue of control is really about the lack of English popular sovereignty rather than the loss of power to Brussels. I will vote remain, but with little optimism that the EU will be reformed along social democratic lines. Ironically, I have more optimism that the vote may lead to constitutional reform in the UK, and that doesn't actually depend on the result.


  1. Parliamentary sovereignty is control by MPs. As events in the Labour Party are proving, that represents a greater level of oligarchy than the EU.

    1. Quite. I think one of things that will strike future historians, when they look back at the 1972-2016 period, is how many of the UK criticisms of the EU were driven by amour propre, which is indicative of an oligarchic mindset.

      Sovereignty in the UK is a matter of "the dignity of parliament", rather than the legitimacy of the people, while fretting about the "supremacy" of particular courts or legislatures, like banging on about "our leading role in Europe" or the "special relationship" with the US, points to an obsession with the appearance of status rather than the reality of power.