Friday, 23 June 2017

Brexit: sovereignty and democracy - an explainer

Almost every day I have the same tedious conversation with a remainer who tells me that we are sovereign. In the most basic sense, yes that is true. Parliament can disobey an EU ruling. The thing is, the EU has coercive means to ensure that we don't - ie penalties and fines. Secondly Britain, above all, respects the rule of law. We follow the principle of Pacta sunt servanda (Latin for "agreements must be kept"). It is a basic principle of civil law, canon law, and international law.

What that means in real terms is that so long as we remain a member of the EU, the ECJ is the instrument of supreme authority and we are subordinate to it.

Very often we are told that the referendum was too complex a question to be put to the public. It isn't. Remain or leave is a pretty basic question, but the question is really a constitutional one which could not be simpler. Do you want the EU as a supreme government?

Ah, but the EU is not a government, they say. This is a flat lie. It has an executive, a court, a flag, a parliament, a constitution and of course, the concept EU citizenship - which is the dead give-away. I do not presently hold a British passport, I hold an EU passport. In every sense it is a law maker with its own foreign policy. We could go at this all day, but the EU is unarguably a government with every intent of securing more powers over the nation state - chiefly through stealthy incremental measures and ECJ rulings.

But actually not all those who assert that the EU is not a government are lying. Many simply do not realise what the EU is. They have very little understanding of its history and its DNA. It has always sought integration by stealth and politicians of all stripes have always sought to conceal its true purpose. To this day it is still described as a trade bloc. It would not be so objectionable if it were.

The EU has direct influence over a number of policies, some exclusively, particularly trade, where we are prohibited from acting unilaterally or in the direct national interest. On all of the top international forums the UK does not have an independent vote, no powers of veto and no right of proposal. Britain cannot act independently on the world stage therefore, by any definition, we are not sovereign.

But then who should be sovereign? Ultimately this is about the sovereignty of the people - not the government. In a democracy political parties set out their manifestos and we vote according to the agenda we prefer. The party with the most seats then gets to form a government to implement that agenda. It is one supported by the demos. Though we can very easily argue that this isn't democratic enough it is a partial democracy because the decision making power rests with the people at election time.

This dynamic does not exist in the EU. There are voting rituals where we send MEPs to Strasbourg, but regardless of who we vote for, the agenda ("Ever closer union") remains the same. MEPs have no right of proposal, few powers of repeal and can only amend legislation if the Commission permits it. Very often amendments to adopted legislation are unilaterally stripped out - sometimes without the knowledge of the parliament. 

This is not democracy. It is a benign technocracy. The power does not rest with the people, the executive cannot be removed and member states have little blocking influence.

The word democracy stems from the Greek word, dēmokratía, comprising two parts: dêmos "people" and kratos "power". Without a demos, there is no democracy. But people without power is not democracy either. We can say with ease that there is no unified European demos, the EU does not rule by consent and the power does not reside with the people. 

As to sovereignty, there are always trade-offs to be made in pooling sovereignty for the the common good. But the EU is not pooling sovereignty. It is subordination. The confiscation and centralisation of power - and in many cases (like the Euro), irreversible. 

In this we have to make the distinction between theoretical and practical sovereignty (or popular sovereignty). We could, if we wanted, repeal the European Communities Act entirely unilaterally bringing us to a WTO Brexit scenario. That is basically a last resort policy and is widely considered as self-immolation. So while we do have sovereignty it is not useful sovereignty that we can realistically wield.

Ultimately everyday sovereignty means having the right to say no. Any nation which cannot and cannot unilaterally invoke safeguard measures for its own concerns is not sovereign.

In this we can play sophistry games til the cows come home. It doesn't matter. In the purest legal sense we are sovereign but, ultimately, in a rare expression of democracy, the people have been granted the sovereignty to decide the matter once and for all. They are the ultimate arbiters and in constitutional affairs their judgement is superior to any court. They have ruled that whatever sovereignty we do have is insufficient. It comes down to one basic choice. You can either have democracy or you can have EU membership. You cannot have both.

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