European Law Monitor

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newsSovereignty, democracy, the UK and the EU

 

In the context of the EU referendum campaign, there have been a number of claims made that leaving the EU would lead to a more democratic UK, and would restore sovereignty. In this article we will be discussing what is meant by sovereignty, and explore whether it is true that we would get more democratic accountability if we left the EU. We will also be discussing to what extent we are “controlled by Brussels” and examine the EU law making process, including whether it is a democratic process or not. The results will probably surprise you!

One word that has been bandied about a lot in recent weeks is the word sovereignty. But why is this such a big deal in the UK?

The reason for this lies in the UK Constitution, which has three founding principles at its heart which are

1)    The separation of powers – power is split between the legislative, the executive and the judiciary
2)    The rule of law – the law applies equally to citizens and government officials
3)    The supremacy or sovereignty of Parliament

Dicey, one of our great constitutional lawyers, used ‘sovereignty’ to describe the concept of the ‘power of law-making unrestricted by any legal limit’ and described the principle as meaning:

“[N]either more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever, and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament”.

One of the reasons behind the UK’s difficult relationship with the European Union is that our membership of the European Union potentially conflicts with this principle, because in the event of a conflict between EU law and national law, Member States accept the principle that EU law has supremacy over national law. In 2010 the UK Parliament examined whether Parliamentary sovereignty is jeopardised (in a constitutional sense) by our membership of the EU, and reached the conclusion that no, it wasn’t .

Sovereignty is often linked to democratic accountability, but actually the fact that EU law has supremacy over national law gives us more democratic accountability not less.  We can find a good example of this in relation to judicial review.

Judicial review is a constitutional freedom that allows private citizens to hold the UK government to account. It is a long standing and historical constitutional freedom, seen by many as being essential to the democratic process. It has proved to be a particularly useful mechanism for ensuring that the UK government applies EU environmental law correctly. However, judicial review has become more difficult to invoke since 2010. In 2011, the European Commission, acting on a complaint received by the EU infringements unit, took the UK government to court on the grounds that the costs involved in challenging decisions via judicial review were so prohibitively expensive that it meant people were put off holding the UK government to account for breaches of environmental law. The ECJ gave a ruling on this point in February 2014, and found the UK government to be in breach of Directive 2003/35/EC, which stipulates that the cost involved in challenging a breach of environmental law must not be prohibitively expensive.

In the same month that the ECJ judgement was received, Chris Grayling (who was at that time justice secretary, and is now a leading Brexit campaigner) put forward wide ranging “reforms” of judicial review. Sadiq Khan described these proposals as “an unconstitutional attack on the rights of the British people”. The BBC described the proposals for judicial review as “an attack on our legal rights”.  Lord Pannick criticised the judicial reform proposals put forward by Chris Grayling in the strongest possible terms, stating that

"All these clauses are designed to impede the effective exercise of judicial review, and, if enacted, that is precisely the effect that they will have. They all arise from a failure to understand, and indeed a complete lack of appreciation for, the very concept of judicial review as a means of holding government departments and other public bodies to account as to their legality in public before an independent judge. The judiciary has made it very clear in consultation that there is no practical need for these clauses and the Government have produced no evidence to justify them. The clauses have been criticised powerfully by the Joint Committee on Human Rights. The Government, as the main defendant in cases, are seeking to legislate in their own interests contrary to the public interest and contrary to the rule of law.

Not everybody was opposed to these changes.  Jacob Rees Mogg praised the “great work done by Chris Grayling in restricting judicial review…judicial review is now yesterday’s news”. John Redwood supported the proposals. His view was “that the main way people should still get redress for bad government is through their Members of Parliament, as their representatives, and through this House of Commons putting pressure on Ministers; or through their elected local councillors doing the same thing to change or get redress for mistakes and errors by local councils, [rather than through the courts]."

Despite strong cross party opposition to the proposed judicial review reforms, including strong opposition by the House of Lords, the Criminal Justice and Courts Act 2015 came into force in February 2015. The net effect of these changes has been to stifle judicial review.

Now, claims against a decision by a public body must be lodged within three months. Furthermore, the costs involved in bring a case to judicial review can be very high (£30,000) and the recent changes mean that it is now a lot harder to get legal aid in judicial review cases, and parties may be personally liable to pay costs if their application is unsuccessful. As a result, judicial review is rarely invoked by private citizens as few people have the time and money needed to challenge government decisions, so currently one of our constitutional freedoms is being severely eroded.  This lack of democratic accountability within our national system can also be seen by the fact that the government is increasingly using statutory instruments to bypass the will of Parliament.  

The sad reality is that if you want to hold the UK government to account at the moment, then you can only do so by using EU law mechanisms, such as writing to the EU infringements unit, or by invoking EU law before national courts. 

Stephan Kinnock described the current system of democratic accountability in the UK as follows:

"The checks and balances that were previously in place for citizens to hold the Government to account have been seriously limited. Across the legal spectrum, we have seen the removal of vast swathes of legal aid, the closing down of law centres, and the removal of good quality legal advice from those who need it most. If that was not enough, the safeguard of judicial review has also been severely curtailed. We have seen the warm words from the Lord Chancellor and Secretary of State for Justice, the right hon. Member for Surrey Heath (Michael Gove), who decried a two-nation justice system, but unfortunately we all know his rhetoric is not being backed up by action.

The Justice Secretary has carried on from where his predecessor (Chris Grayling) left off: sidelining legal aid; the sector cut to the bone; court closures denying access to local justice; and massive increases in fees, excluding many from the system.  – January 2016

It could be argued that when politicians are playing the sovereignty card, they are effectively trying to wriggle out of being held accountable for their actions – they want parliamentary supremacy without democratic accountability.  Sovereignty works if people have faith that our politicians will act honourably and in our interests.  If people don’t trust politicians (and most people don’t) then taking the UK out of the oversight system we are currently in will benefit the politicians concerned, but the great British public not at all.

Not one politician who has argued for sovereignty has come out with national reforms that they would introduce in order to ensure that their actions would be even more accountable, such as a reinstating judicial review or the creation of a Constitutional Court, tasked with upholding citizens’ rights.

Nor have they explained what changes they would introduce at national level, in the event of a vote to leave the EU, to ensure that the democratic system of accountability we currently have in place and which we would lose once we left would be re-instated.  All they seem to be arguing for is to be removed from the system of democratic accountability that we currently enjoy, but without replacing it with anything else.

In that case, leaving the EU would result in a loss of democracy, not a strengthening of it.

The other argument being put forward by those people arguing to leave the EU is that the EU is anti-democratic, and we need to stop being “controlled by Brussels”. The impression one gets is that there is some sad little Johnny no friends, sitting in the European Commission, whose evil task is to come up with legislation, which it will then impose on countries without their consent.

The reality is very different.

The EU legislative process starts with the European Commission identifying its priorities.  These tend to be basic objectives, such as jobs and growth, internal market etc.

The law making process starts off with the work programme being agreed. The work programme is a list of laws that the Council of the EU (our government ministers!),  the European Council (heads of State of each EU country), the European Parliament (elected), national parliaments (elected) Member State governments, and the European Commission want to see introduced over the next five years.You can find more information on this at http://europa.eu/rapid/press-release_MEMO-15-5920_en.htm

The main stages of the cycle are:

The State of the Union address by the European Commission President defines priorities and strategic objectives for the following year. These are very broad.

The next phase is the drafting of the Commission Work Programme for the year – on the basis of a dialogue between the Commission, the European Parliament and the Council. Other EU institutions and national parliaments also comment on the programme.

In the UK, the European Commission will send the proposed work programme to the UK Parliament and the UK government. This will then be discussed by the UK Parliament, the government, and the devolved administrations.

With regard to individual legislative areas (for example the digital single market) the UK will make known its views on how it sees such proposals should work.  When preparing the draft work programme the European Commission will often adopt the approach taken by countries, such as the UK, so that the work programme reflects the best approach to that particular legislative proposal. The European Commission certainly takes account of Member States concerns, and any proposal that is unlikely to be approved is often quietly withdrawn.

The EU Work programme is then voted on in the UK Houses of Parliament and you can see the result of the 2014 vote here. In the context of the UK Referendum, it is worth noting that leaders in the Brexit campaign Michael Gove, Ian Duncan Smith, and Pritti Patel all voted in favour of the 2014 work programme, including support for the completion of the EU single market. John Whittingdale and Theresa Villiers were not present at the time of the vote.

Once the Houses of Parliament approve the EU work programme a letter is sent to Mr Juncker, outlining the UK view on what is being proposed. A copy of the letter for 2016 may be found here. I would very much recommend that anyone concerned about the EU decision making process reads that letter, as its gives a real feel of how the process works in practice.

Commission departments then produce strategic and management plans showing how they will contribute to the Commission's priorities and setting clear objectives and indicators for monitoring and reporting.

The Commission will also prepare impact assessments in order to work out social, economic and financial impacts of the proposals, and run public consultations to get feedback on the new idea for an EU law being discussed.

Once the Work Programme is agreed between everybody, the European Commission is tasked with coming out with the EU legislative proposals agreed in the Work Programme. This process is broadly comparable to the role of the UK civil service which does much the same thing; Bills (draft Acts of Parliament) are drafted by the civil service and then sent to Parliament where the proposal will go through the UK legislative process.

When assessing the democratic processes that apply to law making at EU level, it is worth doing a comparison between the UK and EU legislative proposal system

UK

The Queen's Speech sets out the legislative programme for the year. Although the Queen reads the Speech, it is written by the government, usually by the Cabinet. Parliament is not consulted on the content of the speech.  Nor are the people consulted, other than in the broadest sense where the Queen's Speech includes policies included in the government's election manifesto.

EU

The European Commission identifies political priorities.

It agrees legislative priorities with the European Parliament, the Council of the EU, the European Council and national parliaments, and agrees a timeline for proposals to be introduced.  Before the work programme is finalised , it runs public consultations on the main ideas being put forward, and asks NGOs, the public and other interested parties for their views. You can register for these consultations at http://ec.europa.eu/atwork/planning-and-preparing/index_en.htm

Whilst it is true that the European Commission is not directly elected, it is not correct to say that the Commission “tells the Member States what to do”.  There is a constant flow of dialogue and discussion between the Member States and the EU institutions, particularly the European Commission.

The European Commission, in conjunction with the European Council, the European Parliament, national  parliaments, and the Member States,  agrees what legislative proposals shall come out that year, and the content of the proposed legislation. Public consultations also take place regarding ideas for new EU laws.

Once the work programme is agreed between everybody, the European Commission comes out with the legislative proposals to implement the work programme.

Once it has prepared an EU legislative proposal, it sends the proposed regulation or directive to the European Parliament (elected) and the Council of the EU (our government ministers) who then discuss the text of the Commission proposal and either agree to it or not.

Comparing the openness and transparency of the EU approach to initiating legislation to the 'behind closed doors' approach of the UK government, and the assault by successive Justice Ministers, Messrs Grayling and Gove, on the ability of citizens to challenge law via the courts through the process of Judicial Review, without providing any alternative mechanisms, it seems difficult to sustain the argument that leaving the EU will result in greater democracy. Indeed the result would seem to be the very opposite of this - a very considerable loss of democratic accountability where ministers are freed to wield their increased powers unfettered by having to account to judicial scrutiny.