The EU is different from every other international association in one critical regard. Its treaties do not bind their signatories as states; rather, they create a new legal order that is directly applicable to individuals and businesses within the member states, and that has primacy over national jurisdictions.
When a national statute comes into conflict with a decision by an EU institution, the courts of the nation concerned will automatically give precedence to the latter. The EU has thus, in the exact sense, assumed sovereignty over its 28 member states.
“Sovereignty” is a much misused word in the European debate. It is often employed as a loose synonym for “power”. Thus, for example, British Europhiles used to say that keeping the pound had not preserved UK sovereignty, because the Bank of England would generally have to follow the Bundesbank when setting interest rates (they have, obviously, had to drop this argument).
But “sovereignty” doesn’t mean “freedom of action”; it means having ultimate legal authority, the right to set the rules. In most European countries, sovereignty is vested in the general population, and guaranteed a written constitution interpreted, ultimately, by a supreme court.
In the United Kingdom, sovereignty effectively passed from Crown to Parliament in 1689, a settlement enshrined by (in England) the Bill of Rights and (in Scotland) the Claim of Right. So things stood until 1972, when the European Communities Act recognised the primacy of EU law, obliging British courts to give it precedence over national law.
It was this element of the Act – Sections 2 and 3, to be precise – that led some Labour and Conservative Eurosceptics to vote against accession in 1972 and to campaign for exit in 1975. Few, if any, Eurosceptics opposed the idea of a common market in Europe, or of closer institutional links with Britain’s immediate neighbours. They objected, rather, to the EEC’s assumption of the prerogatives of statehood.
Because the word “sovereignty” has slightly fusty connotations, many British Eurosceptics prefer to speak of “democratic control” or “democratic accountability”. But it’s sovereignty we mean. We want, for example, to be able to determine who can enter our country and on what terms. But if MPs legislated to create an Australian-style points-based system, in which EU nationals were no longer privileged over Commonwealth citizens, Brussels wouldn’t have to take Britain to court. The legislation would simply be disapplied by our own courts the moment an EU citizen who had been denied entry claimed the right to reside here. That’s what loss of sovereignty means.
One politician who has recently used the word “sovereignty” is David Cameron, who cited it at the recent Brussels Council as one of the four areas where he wanted reform. Indeed, it may be the only area which requires something to change, since the other three are things that can be legislated for domestically, or things that the EU is doing anyway.
However, what the PM seems to be proposing is not a restoration of sovereignty, but something that is, in many ways, worse than the status quo. He is after what is called, in Euro-cant, a “red card system”, whereby a number of national parliaments, representing a proportion of member states, can block a Commission proposal.
Think about that for a moment. National legislatures are being formally recognised, in effect, as sub-units within the EU. This is a long-standing Euro-federalist goal. It recalls, for example, 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, by amending Sections 2 and 3 of the 1972 Act to remove the direct effect of EU rulings.
Philip Hammond has feebly dismissed this idea as “not on the agenda”; but why isn’t it? The supremacy of EU law was not in the original Treaty of Rome. It was, as even federalists admit, invented by the European Court of Justice in a series of power grabs from 1963 onwards. Nor is it recognised by most of the national supreme courts of the other member states. The majority of them, including France’s Conseil d’Etat and Germany’s Bundesverfassungsgericht, have at one time or another taken the opportunity to declare their own sovereignty. The ECJ rejects their interpretation, but no one regards their rulings as a declaration that their countries have left the EU. The United Kingdom could argue – it would be slightly stretching the point, but only slightly – that amending Sections 2 and 3 was simply bringing its arrangements into line with those of other member states protected by written constitutions.
How would the recovery of sovereignty practically change things? It would mean that EU legal acts would come into effect in the UK only following specific implementing legislation by Parliament – something that is currently the case in some instances, but not all. This change may seem technical, but it would almost certainly curb the judicial activism of the ECJ and the power-hunger of the European Commission. More to the point, it would formally recognise that the United Kingdom’s relationship to the EU was that of a sovereign nation in voluntary association with others, not that of a province within a European polity.
Would such a change be enough to convince me to stay in the EU? Potentially, yes; especially if it were part of the wider reform package outlined by the PM in his Prague and Bloomberg speeches, involving the repatriation of significant powers. But we should be realistic. As things stand, bewilderingly, British officials are not proposing such a reform. Instead, under the rubric of “sovereignty” they are pushing for something that would formalise the subordinate status of Parliament.
Oh dear. What an opportunity is being lost.