EU referendum: Does the UK need to take control of its sovereignty?

The big EU questions: The EU debate so far has been characterised by bias, distortion and exaggeration. So until the end of the referendum, we are running a series of question-and-answer features that will try to explain the most important issues in a detailed, dispassionate way

John Rentoul
Thursday 23 June 2016 16:01 BST
Celebrations for the Queen’s birthday yesterday. UK sovereignty lies with the Crown in Parliament – in practice this means Her Majesty’s ministers
Celebrations for the Queen’s birthday yesterday. UK sovereignty lies with the Crown in Parliament – in practice this means Her Majesty’s ministers

What is sovereignty anyway?

Funny word. From the Latin, super, above, via Old French, souverain, and the ending changed by association with reign. It means supreme power, and usually refers to that in a nation state.

In the United Kingdom sovereignty lies with that polite fiction, the Crown in Parliament. In practice it lies with Her Majesty’s ministers, who hold power by virtue of commanding a majority in the House of Commons, and so ultimately it is – in constitutional theory – the people who are sovereign.

Because of our uncodified constitution, there is no limit to the power of the House of Commons except those that it chooses to impose upon itself. If the Commons chooses to cede some of the people’s sovereignty elsewhere, it can always take it back.

Power has been devolved to Scotland, Wales, Northern Ireland, London and local government only because Parliament legislated for it, and it could repeal or change the law at any time. Equally, power has been passed to the European Union by Acts of Parliament. If the British people vote to leave the EU, those Acts would be repealed and the powers taken back.

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But if we vote to stay, those powers would stay in Brussels for the foreseeable future, wouldn’t they?

Yes. It seems unlikely that there would be another referendum in the next decade or so, even if the eurozone countries decide that they need a closer political union to make the euro currency work. They would try quite hard to do that in a way that did not provoke the UK government into going through this again.

However, for most of the time since we joined in 1973, we seem to have taken the view, as a nation, that this “pooling of sovereignty” has been pragmatically in our interest. So much so that we have handed over more powers since then – especially in the Single European Act, which created the single market, agreed by Margaret Thatcher in 1985.

The two times when public opinion was most opposed to the loss of sovereignty were after recessions, in the early 1980s and since 2008.

So what is different this time?

In 1984 Mrs Thatcher swung her handbag and secured a rebate on UK contributions to Brussels, a very public assertion of the British interest. The economy was also growing fast, and anti-EC sentiment subsided.

This time, the economy has also recovered from recession, but in a different way, attracting large numbers of central European workers from the enlarged EU, who are entitled to come here under freedom of movement rules. Those rules were mostly relevant to us before the expansion of the EU in 2004 only because they made the lives of expats in Spain easier.

Today immigration is the big issue for the campaign against EU membership. One of the fundamentals of sovereignty is the power to decide who can come into a country and who cannot. We ceded that power in 1973 but it wasn’t important until 2004, and it wasn’t a problem for large numbers of people until the 2008 financial crash.

So is concern for sovereignty just code for opposition to immigration?

No, because there are other powers that the British Government has given up. But most of them are in our economic interest, or don’t matter very much, or aren’t as bad for us as they were. For example, people stopped complaining about the Common Agricultural Policy years ago.

Most of the silly and semi-mythical things that Boris Johnson goes on about, such as the rules on bananas, are common standards designed to make it easier for us to buy and sell in a market of 500 million people.

Some of Johnson’s complaints are more serious. He says that when he was Mayor of London he wasn’t able to ban lorries that he thought were unsafe for cyclists, and the Transport Secretary couldn’t ban them either. The EU is changing the law on lorries, but not for several years because of the objection of French and Spanish lorry makers.

That is a limitation on our sovereignty, but David Cameron would argue that it is worth it for the benefit of the single market and the influence we have over its rules.

Doesn’t Cameron say we actually gain sovereignty by being in the EU?

Yes, although “influence” might be a better word. His argument is that we have more power as a member of international bodies including the EU. The same arguments apply to Nato and the European Convention on Human Rights (which is separate from the EU although increasingly entwined with it).

Nato membership limits our sovereignty in matters of war and peace: we are obliged to defend our allies. But in return, they are obliged to defend us.

The European Convention and Court of Human Rights is a particular irritation to Theresa May, the Home Secretary, who says we should stay in the EU but pull out of the Convention. She says it prevents the UK deporting undesirables. Its defenders say it forces the UK Government to take seriously its obligation to oppose torture, and not to deport anyone, however undesirable, who is likely to be tortured.

Yes, but what about the EU?

The Prime Ministers argument for the EU is that, if we left, we would still be trying to sell goods and services to the single market, but our government would have no say on the rules of that market.

It is not an exaggeration to say that the single market was a British idea, and that the British economy has benefited hugely from being a part of it. The next phase will be to create a single market in services, especially financial services such as insurance, and if Britain isn’t part of the negotiations, it is easy to see how our businesses could be put at a disadvantage.

The mantra of the Leave campaign is “take control”, but George Osborne is right to point out that this means “losing control” of other important things, especially those relating to our future prosperity.

So what can’t we do in the EU that we want to do?

That might be a better way of asking the question. Ministers often complain about EU regulations, but are less often able to point to specific instances where EU membership has prevented them from doing something that everyone agrees they should be allowed to do.

Apart from immigration and Boris’s cyclist-crushing lorries, it is surprisingly hard for Leave to come up with examples. And all these things are a matter of balancing costs and benefits.

The Independent, for example, argues that immigration is a huge benefit to this country. In our view, the disadvantages of freedom of movement, such as high housing costs, are outweighed by the advantages of a strong economy and a dynamic, open society.

Even if you think freedom of movement is a net burden, it might be outweighed by the economic benefits of full access to the single market.

Is a referendum the best way to decide questions of sovereignty?

Mr Cameron said on Tuesday night’s ITV programme with Nigel Farage that this referendum is “the greatest act of national sovereignty for several years”. Which was a powerful point. Given that sovereignty ultimately comes from the British people, it could be argued that there is no purer expression of it than a referendum.

The problem is that there could be a clash between direct democracy and representative democracy. Mr Cameron implies that every 41 years or so we get the chance to pass judgement on the lease of some powers to Brussels, which might be often enough, given that we don’t feel strongly enough about it to send a majority of MPs to the House of Commons on a platform of withdrawal from the EU.

As some pro-EU MPs have noted, there is a large majority in Parliament for staying in the EU. Hence the suggestions that the Commons might try to frustrate a vote to leave. It would be unlikely to block the UK’s withdrawal from the EU, as that is the explicit question put to the referendum. But it might make it hard for a Johnson-led government to withdraw from the single market and the freedom of movement rules that go with it.

What happens when one expression of sovereignty, a referendum, conflicts with another, a representative parliament, is something that we would find out only if we vote to leave.

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