Whatever else should decide whether we remain in the EU or leave, neither the curvature of bananas nor the Commission Regulation on ‘the classification of padded waistcoats in the Combined Nomenclature” (sic) are the real deciders.
But millions in the UK do feel keenly a loss of democratic accountability as the reach and powers of the EU have grown, and a sense – whether on justice matters, business regulation or border controls – that sovereignty is being lost.
A profound constitutional change has unfolded since we signed the Treaty of Accession in 1972. We were constantly assured that we were only joining a “common market” and that no loss of sovereignty would be involved.
But the European Communities Act implicitly recognised the primacy of EU law over UK law – a principle that, over the following decades, was deepened and extended by the decisions of the EU’s top court, the European Court of Justice (ECJ).
Under the EU doctrine of acquis communautaire, the entire body of laws, policies and practices is regarded as “acquired ground”. An explicit objective of the Union is to build on this and expand.
This lies at the heart of the ratchet process of European integration: it commits the member states to accept all previous and future centralising measures and implicitly rules out any repatriation of powers.
We’re trapped on a one-way street.
Were UK voters asked to approve this deepening and extending? Indeed, was it ever openly admitted by successive UK governments? What, then, was the basis for the legitimacy of this process?
Answer to all three questions: no.
How much EU legislation has there been? The House of Commons Library is indeed an authoritative source. But both Vote Remain and euro sceptics have drawn from this well.
Its 2010 study How Much Legislation Comes From Europe – the most detailed study yet of the proportion of national law that is based on, or influenced by, EU regulations – found there was a “steady increase” in legislation directed from the continent after Britain first joined the EEC, much of it following the main treaties.
By the early 1980s there was a “peak” of more than 14,000 regulations and instruments but the volume has fallen since the 1990s. Professor Chalmers, citing the House of Commons Library study, estimates that 14 to 17 per cent of UK law is derived from our EU membership.
Now it is certainly true that these have a varying impact on our daily lives: some are significant. Others not. But it is hard to deny that this is a significant degree of EU-driven legislation. And the BREXIT campaign has never sought to challenge the agreed ceding of sovereignty to bodies such as NATO and the World Trade Organisation (WTO)
The point here is that “sovereignty” doesn’t mean blanket “freedom of action”. What it should mean here is having ultimate legal authority, the right to set the rules.
And it is this we are losing.
What of criminal justice? The Treaty of Lisbon allowed the ECJ the possibility to rule on about 135 measures in the field of criminal justice. The UK has opted-in to 35 of these, including Europol, Eurojust and the European Arrest Warrant (EUWA). This allows British citizens to be surrendered to other EU States for trial for a number of offences and has not been without controversy.
Prime Minister David Cameron has frequently invoked the word “sovereignty”, and cited it as one of the four areas where he wanted reform. We hear very little of that now. Instead, what he has recently proposed is a “red card system” under which a number of national parliaments, representing a proportion of member states, can block a Commission proposal.
But as Conservative MEP Daniel Hannan points out, this means that national legislatures are formally recognised, in effect, as sub-units within the EU – a long-standing Euro-federalist goal.
The principle is similar to the way in which two thirds of US states are needed to amend the Constitution. They, too, are thereby acknowledged as subordinate entities within a federation.
So, if not through this “red card” nonsense, how might sovereignty truly be restored? Very easily, says Hannan – by amending Sections 2 and 3 of the 1972 Act to remove the direct effect of EU rulings.
Philip Hammond has dismissed this “not on the agenda”. But a vote to leave will put it there.