During the referendum campaign on the UK’s membership of the European Union, arguments focusing on democracy have tended to be the preserve of those advocating for a Brexit. The rallying cry to “take back control” of “our” laws and borders, has become Vote Leave’s mantra.
There is some force behind this message. There is no doubt that EU membership entails costs, and by joining the EU, states agree to be bound by EU treaties. Both the treaties and EU legislation – typically adopted in the form of regulations or directives – are supreme over national law.
This hierarchy is applied by national courts, who, across Europe, have found creative ways of ensuring that they give full effect to EU law. The House of Lords and Supreme Court have consistently held that where UK law conflicts with provisions of the EU treaties, it cannot be applied – though the UK courts are at pains to emphasise the qualified nature of the primacy of EU law.
The EU treaties also give the EU legislature a broad competence to act. For example, the EU has created an internal market in Europe and has imposed a range of social and environmental standards on its member states.
In addition, the judicial arm of the EU – the European Court of Justice – has held that a number of national rules breach EU law. This has had a significant influence on the regulatory landscape in the member states, such as strengthening equal pay laws.
So there is no doubt that EU law creates constraints which affect the ability of the member states to control their laws – and that Brexit would indeed enable the UK to take back some control. But, when we examine the way in which these constraints are imposed and consider the alternatives, the leave campaign’s case begins to take on a different hue.
No overlords in Brussels
EU law is not, contrary to what many may believe, imposed on member states by a “Brussels bureaucracy”. The EU has the power to act only to the extent that the member states have chosen to grant it that power. It is the states themselves who have collectively chosen to do things at European, rather than the national, level – presumably because of the advantages which they calculate will flow from this.
Revisions of the EU treaties require the unanimous agreement of all member states. As a result of the UK’s European Union Act 2011, future changes to the treaties which involve increases in the EU’s competence may only be approved by referendum in the UK. Other member states, including Germany, have similar constitutional barriers to increases in the powers of the EU.
Although the EU’s law-making process is complex, it is founded on democratic principles. The EU’s legislative procedures are animated by a democratic ethos. The European Commission’s proposals do not become EU law unless they are approved by a majority in the (democratically elected) European Parliament, and about two thirds of the governments of the 28 member states, whose votes in the Council of Ministers are weighted according to population.
In particularly sensitive areas, states have either preserved their right to veto proposed legislation (such as on tax harmonisation) or ensured that the EU has no competence to act – such as in relation to pay and the right to strike. No doubt European-level democratic systems could be improved, in particular in relation to the governance of the eurozone, but it is misleading and dishonest to claim that EU law is imposed on unwilling states by unelected bureaucrats in Brussels.
A ‘higher law’
While the obligation to follow “higher law” may be a little unfamiliar in the UK, it is actually fairly common throughout the world for national constitutional structures to seek to confine the power of the legislature. This is to guard against one of the risks inherent in democracies: the tyranny of the majority. The US and German constitutions are prime examples of this approach.
Constitutional courts are often given the power to annul legislation which infringes constitutionally protected fundamental rights. The UK has begun to move in this direction with the adoption of the Human Rights Act in 1998, which gives courts the opportunity to rule on the compatibility of legislation with standards enshrined in the European Convention of Human Rights. One reason that governments agree to cede a measure of control, or that parliamentary sovereignty is limited, is to ensure that constitutional standards are safeguarded.
Where the EU is unusual, is that the higher law standard, against which “constitutional” assessments of the legality of national law are performed, is a European standard, which has direct effect in the various national legal systems. The international nature of this standard is important. Governments are, unsurprisingly, often willing to undertake to meet particular trade and environmental standards when they are safe in the knowledge that other governments are willing to make reciprocal commitments.
From a democratic perspective, the question remains whether we would rather allow the UK government, relying on a House of Commons majority achieved on the basis of under 37% of the popular vote (and a turnout of 66%), to act freely, subject to minimal scrutiny in parliament and before the UK courts.
Personally, I would rather we adhered to the laws established within the institutional structure of the European Union, ensuring adherence to EU internal market and international fundamental rights standards.