Erik Jones is Professor of European Studies and International Political Economy and Director of European and Eurasian Studies at the Johns Hopkins University School of Advanced International Studies (SAIS, www.sais-jhu.edu), and Senior Research Fellow at Nuffield College, Oxford.
This is an edited version of an article originally published on his personal website (www.erikjones.net), and is republished here with kind permission.
- Argues that the Vote Leave campaign’s arguments based around boosting British “sovereignty” are seriously mistaken, and that the use of referendums actually usurps parliamentary sovereignty (in that it will effectively bind future parliaments).
- Claims that the EU does not constrain British sovereignty, rather that British institutions exercise sovereignty to work within European constraints.
- Suggests four ways in which EU cooperation has made UK Government action more effective: (1) the UK Government has considerable input into the shape and application of EU law, purported alternatives suggested by Leave campaigners to “EU laws” often just reflect domestic political disagreement and attempts to unpick Government decisions; (2) most market regulations are the result of competition/adoption of best practice across jurisdictions, including the EU – this wouldn’t change following Brexit, simply government action to promote British interests would likely be less effective; (3) any good British regulatory innovation is likely to be expensive for British companies unless the Government can find some way to win allies for its wider adoption; and (4) the best situation from a regulatory perspective is to have a large market for innovation and competition in regulation – policy-makers want the best regulations given current practice and they want to adapt to the best regulations that emerge in the future.
Two bad ideas
The EU referendum on 23 June is based on (at least) two bad ideas. The first is that the popular legitimacy of a referendum can restore the sovereignty of Parliament. The Vote Leave campaign believes they can take power from Brussels and give it back to Westminster. That is a fantasy. Parliament will be more constrained and less effective if the UK leaves. The second bad idea is that referendums are more democratic than Acts of Parliament (which is the kind of decision that brought the UK this far in its relationship with Europe). By giving the people the chance to speak their mind on a yes-or-no (in-or-out, remain-or-leave) question, we can discover what they really want. That is not how people work. Real people prefer trial and error. Real people also like to delegate responsibility for making complicated decisions. This matters because the two bad ideas combine to make the worst of all possible worlds. If the UK votes to “Leave”, voters will discover that they have made a terrible mistake only to learn that there is no easy way to fix it.
Referendums usurp parliamentary sovereignty
Let’s start from first principles: popular referendums do not protect parliamentary sovereignty; they usurp it. When David Cameron announced his intention to hold an in-or-out referendum, he made it clear that the goal was for the British people to have their say and finish the debate. What that means in principle is that future parliaments should not revisit the matter. The people will have spoken and so Parliament’s hands are tied. The fact that the people elect MPs does not trump the voice of the people themselves. The fact that many of ‘the people’ will soon pass onto the next life and so leave this constraint on future generations who haven’t yet learned to talk doesn’t matter either. As if to underscore this point, David Cameron tried to win concessions from Europe that would be similarly permanent. Britain’s opt-out from the European goal of an “ever closer union” is “irrevocable”, for example. Future parliaments should not revisit that issue either. This whole debate has made the scope for parliamentary action narrower and not wider. Current politicians have tricked the people into usurping the sovereignty of Westminster.
The situation is not worse under Europe. It is better. Nothing that has been agreed about Europe by past UK parliaments is irrevocably binding – or meant to be so. The same is true for every other country participating in the European project. If you needed any reassurance on that point, just look at how much attention the current referendum is getting elsewhere. Other European leaders know that the British government can take the UK out of the EU. So does the United States government, as President Barack Obama made clear during his recent visit. None of these political leaders thinks it would be a good idea for Great Britain to leave Europe, but they all respect that it is within the power of the UK Government to do so. The same is not true for an American state. Those states exercise sovereignty – and some, like Texas, flirt at times with secessionist rhetoric – but they are not sovereign in the same way that the UK is as an EU ‘member’ state.
The notion of ‘membership’ is important in that respect. Short of expulsion, membership is largely a self-enforcing activity. When the British legal system enforces European rules, they do so on the basis of British legal commitments made by Westminster and not as the agents of some higher power. There is no European enforcement mechanism that can override British institutions. And if British institutions choose to ignore European legal requirements there is little that the European Union can do about it. The EU could threaten to expel Britain in order to bend the UK Government to its will, but only the Government can decide whether and how to respond to that threat. If the recent example of Poland is any illustration, then expulsion – from the room and not even from the Union – is unlikely to happen.
My point is not that national governments can and should ignore their European commitments. Rather it is that commitment to Europe is an act of self-interest rather than the result of some kind of enforcement. In that sense, the threat of expulsion is not only unlikely but also unnecessary (although some observers of democratic backsliding in some of the newer Member States are likely to disagree with me on this point). Most governments accept the judgments of the European institutions. They may not like the specific decision, but they respect that some institution has to render judgment when there is disagreement over whether there are rules in a given situation, what the rules mean, and how they should be implemented. David Cameron conceded this point explicitly in his Bloomberg speech. The European Union does not constrain British sovereignty; British institutions exercise sovereignty to work within European constraints.
EU cooperation makes UK government action more effective
This self-restraint is rational insofar as participation in European institutions makes parliamentary activity more effective. No doubt many MPs will argue that is not the case. They will also complain that some enormous percentage of British laws are drafted in Brussels and not at Westminster. And they will highlight one or two key areas where they would do things differently if freed from European constraints. There is a complicated subterfuge in this line of argument that needs to be unpacked to be considered. Let me do that in four steps.
First, the real effect of the Leave campaign would be to overturn past parliamentary decisions. Successive British parliaments have delegated rule-making authority to European institutions in which they have also demanded representation. Successive British parliaments have also participated in a series of sweeping reforms to the procedures for how those European institutions make rules. And successive British parliaments have converted European rules into national legislation. At each step along the way, opponents of Europe have had the opportunity to protest both inside and outside the Houses of Parliament. Sometimes those opponents of Europe have won concessions and sometimes they have blocked change. Participation in the euro and the Schengen area are two examples. Sometimes, however, those opponents of Europe have either failed to influence the conversation or they have had little real reason to complain. Here we might put much of the single European market. So the difference between the world we live in today and a world without Europe boils down to those policy areas where opponents of Europe wanted to do something different and yet failed to sway a majority of Parliament. Now they want to reverse those defeats.
Second, many of those decisions would have come out similarly – at least in broad terms – even without European integration. Remember, both the Schengen Area and the euro are off the table. So the focus is on the Single Market. All markets have regulations and most market regulations are the result of competition across jurisdictions. Moreover, the UK Government is involved in a large number of international organisations that share ‘best practice’ for how markets should be regulated, how different regulations interact, and how much it costs to do business across different regulatory jurisdictions. This is the information that policymakers use to ‘modernise’ the rules that define the domestic marketplace. As the world becomes increasingly interconnected through market activity, that modernisation involves increasing amounts of information gathered from the experience of other countries and filtered through international forums like the European Union. The Leave campaign is quick to admit that practice will not change if the UK were to leave the EU. That is much the same as admitting that a lot of the actions of the British parliament would start outside of London even if the EU did not exist. The question is whether those actions would have been as effective in representing the British national interest.
Third, smaller markets have to accept the rules set by larger markets if they do not want to put their firms at a competitive disadvantage. Here you might think of weights and measures. There was a time when every market town had a town hall that provided examples of the standard weights and measures that applied for lawful transactions. That kind of local idiosyncrasy was one of the first victims of market integration. Every market town also had its own ‘time’ that pivoted around the sun’s apex at noon. That kind of idiosyncrasy has disappeared as well. Of course there are some holdouts. The United States still uses a form of imperial weights and measures and North Korea recently introduced its own time zone, setting the country’s clocks back by thirty minutes. Most of the rest of the world makes do with the metric system and time zones set at hourly increments and centred on Greenwich. If you dig into the details, moreover, you will see that a lot of market regulations and voluntary industrial standards show the same pattern of convergence. Moreover, the pattern is set by the largest markets and not necessarily the cleverest regulators or standard setters (unless some clever innovation is quickly adapted by a large market). This means that any good British regulatory innovation is likely to be expensive for British firms unless the British Government can find some way to win allies for its wider adoption. It also means that a lot of British regulation is going to be determined by the relative costs of doing business.
Fourth, the best situation from a regulatory perspective is to have a large market for innovation and competition and to use that large market to build a coherent regulatory framework to achieve two complementary objectives: policymakers want to adopt the best regulations given current practice and they want to adapt to the best regulations that emerge in the future. That challenge is bet met through international cooperation because almost no regulatory jurisdiction is big enough, innovative enough, and flexible enough to do everything on its own. Moreover, this is as true for the United States as it is for the European Union. That is why governments on both sides of the Atlantic pushed for a transatlantic trade and investment partnership. They knew that this kind of regulatory cooperation would be more challenging than a standard trade agreement. The current controversy over the agreement is less of a surprise than many pretend. But policymakers also saw that some kind of transatlantic trade and investment partnership is the only way to get what you want from market regulations in an increasingly integration global economy. The Leave campaign wants to move in exactly the opposition direction. That result will be to force the British parliament into accepting rules made elsewhere without any input from the UK or to abandon the goal of national competitiveness.
The decision we face
If you add this all together, the Leave campaign will constrain the sovereignty of Westminster, it will overturn regulatory decisions that Eurosceptics already fought in Parliament and lost, it will rob Parliament of influence, and it will threaten the competitiveness of British firms. By contrast, the Remain campaign will promote British interests by placing trust in elected representatives to work with Britain’s closest allies in order to project shared values across a global market. That is the choice Britons face and yet it is not a choice they should have to make.
Instead, they should vote to remain in the EU and to give responsibility for European policy to MPs and government. Then they should vote – not just once, but every five years – to hold those politicians to account for their actions. In other words, by choosing to remain, the British people should make a clear choice for representative democracy. This way Britons can not only preserve parliamentary sovereignty but they can also make sure that Parliament remains responsive to the needs of future generations. Most importantly, they can ensure that the British people can benefit from the best market regulations that the world has to offer (rather than forcing their politicians to invent everything on their own).
The choice is simple. Leave means anachronism, idiosyncrasy, and ineffectiveness; remain means accountability, sovereignty, and progress. Once you strip out all the bad ideas at the heart of the Leave campaign, it hardly looks like a choice at all.