Acute Disorder

Law of unintended consequences

An agreement of the people for a firm and present peace upon grounds of common right and freedom

without comments

We will be clear about only one thing after the EU referendum on 23rd June. Either we will be living in a more democratic society, or we will not. This is just as it should be, given that this is a constitutional referendum focused not on particular economic or social policies or outcomes but on process, the process by which we organise and relate to democratic government. The EU is not just a trade group, single market or debating society, it is an important part of our government.

There will be economic and social outcomes. There are risks and there will be consequences – either way – as to trade, GDP, immigration, unemployment, house prices and so on, but not only are these almost impossible to assess or predict, they are also beside the main point. The main point is that we are voting about democracy, and democracy is about freedom, and democracy and freedom matter.

Emphasising democracy does not imply that the people will have taken control if the vote is for ‘Leave’. Sovereignty, national or popular, will not have landed on Dover beach. Indeed, given the parlous state of our actually existing democracy it is not unlikely that the government would manage (the mot juste) to keep the UK in the EU despite a vote to the contrary. It should be noted too that the EU is not the only challenge to our democracy and our freedom; the malaise is wide and deep.

Nevertheless, a vote to leave is the democratic thing to do, and will be of great significance. The demos can strike a blow against the collusion and entanglement of the UK with a very undemocratic institution, and can land a blow on those ‘mind forg’d manacles’ too. Settling for a good king rather than a bad parliament should, now we have been asked, be turned down.

We also need to keep our eye on the ball. It is a symptom of the deeply apprehensive mood of our times that tragic events such as the killing of Jo Cox MP can so easily plunge society into the sort of understandably emotional responses that we have seen in the last week. Now indeed is the time for cool heads, and reason to be strong.

Few bother to dispute that the EU is undemocratic. For example, the Times editorial on 18th June set out its case for Remain, but simply concedes the democratic point, ‘The institutions that run the world’s biggest trading bloc foster democracy in new member states but are themselves undemocratic, meddling and short-sighted’. This is admirably frank, but it simply underlines how little importance is attached to the democratic dimension. Such has been obvious too from the referendum debate, and it bespeaks a great danger – that democracy is considered no longer worth fighting for.

To mention democracy is to provoke frowns of exasperation, winces of guilt, and ever more elaborate redefinitions of ‘what we really mean by democracy in a complex global economy in which nations are past their sell-by date’. It is sometimes added with neither conviction nor credibility that the EU, well, can perhaps be ‘reformed from within’. Most often though we are told that things are just too complicated now for an old-fashioned idea like democracy.

Democracy, in fact, is a pretty straightforward thing. It is based on an understanding of the equal worth of every human being, and it is above all about freedom. Freedom is about the ability of an individual to act without unnecessary constraint, and about a people being able to live under a government of its own choosing. It is also more than that. Freedom is an attitude. The very concept recognises that we are indeed unduly constrained not just by nature and necessity but also by the structures and frameworks that we have created for ourselves, and it expresses a yearning, and also the confidence that we have it in ourselves, to overcome these limitations and do so much better. If we give up on this, we will have given up.

That parliamentary democracy was about freedom was obvious to those who fought for it in the first place. In 1647, one of the simple demands that the Levellers proposed to the General Council of the Army at Putney was ‘That the people do of course choose themselves a parliament once in two years’. Their magnificent manifesto was entitled ‘An agreement of the people for a firm and present peace upon grounds of common right and freedom’. In 1776, the American revolutionaries who had been denied representation in the British parliament published their Declaration and they listed liberty, after life, as the second of their inalienable rights. In 1840, the young Chartist, Samuel Holberry, was arrested in his bedroom with a dagger in his hand. He admitted that he would indeed use it ‘in defence of the Charter and to obtain liberty’. He died in prison two years later, and it is said that up to 50,000 people followed his funeral procession to Sheffield General Cemetery. In 1863 at Gettysburg, where there had been about 23,000 casualties on each side, Abraham Lincoln defended ‘government of the people, by the people, for the people’, and said that victory in that cause would herald ‘the new birth of freedom’.

As the examples above illustrate, democracy and freedom grew with and within nation states. This was the historical form and vehicle for the expression of the individual and collective freedom of the people. The understanding followed that people in other states were also entitled, in theory at least, to the same. Woodrow Wilson put the matter succinctly in a speech to Congress in 1918, ‘National aspirations must be respected; people may now be dominated and governed only by their own consent. Self-determination is not a mere phrase; it is an imperative principle of action which statesmen will henceforth ignore at their peril.’ True internationalism implies such an approach. The workers of the world must indeed unite, but this will not be achieved at the behest and service of Jean-Claude Juncker.

In order to be free, people need to form a political unit, a demos. It can come in many shapes and sizes. It can be as large as India or the United States of America or as small as Luxemburg or San Marino, but demos there must be if the people are to be able freely to participate in, and determine themselves through, their own government. There is, patently, no European demos. It may be desirable to build one, but as should be clear not least from many referendums the EU is certainly not the institution to do so.

The EU has never been designed to operate on a democratic basis. The Council of Ministers, composed of one minister from each of the 28 member states, is firmly in the driving seat, and with double majority voting now the norm, the wishes of any given national electorate may simply be overridden. The only body that can initiate legislation within the EU is the Commission, which is composed of one Commissioner appointed by each national government, plus 33,000 staff. There is much talk of the power of Parliament to censure the Commission (it has never actually done so) and of its increased powers to revise, amend and agree legislation. The key issue is the power of Council. The simple truth is that even with the ‘co-decision’ powers given to Parliament alongside Council in the legislative process, the Council can simply veto any legislative proposal. The Court of Justice of the European Union, with one judge appointed by each of the member states, interprets and applies EU law in all member states, and can overrule national law where EU law applies. There it is.

In considering the respect this institution has for democratic process, its treatment of Greece, Italy and Cyprus should give the stoutest EU loyalist pause for thought. In 2011, the Greek prime minister George Papandreou proposed to put the EU’s austerity proposals of Greece to the people of Greece in a referendum. Under pressure from the EU, which was furious at his idea of consulting the people on such an important issue, he was bundled out of office. A coalition was installed, headed by an unelected prime minister, Lucas Papademos, an economist and former Vice-President of the European Central Bank.

When, four years later, the Greek people, courtesy of a Syriza-led coalition, did get the opportunity to vote in a referendum on the terms of an EU-arranged bailout, they rejected the terms by 61% to 39%. The EU, which had taken Greece into the Eurozone in 2001 despite the fact that it could not possibly meet the ‘euro convergence criteria’, then rejected the Greek people – our terms or nothing – and a week later the Greek government caved in and sided with the EU. In fact, the government had to accept a deal containing even larger pension cuts and tax increases, which was presumably intended to teach the Greek people a lesson for having the cheek to express their view about how their debt crisis might be resolved. Even the IMF disapproved. George Osborne, however, appears to have been impressed. He has now promised a punishment budget of £15bn in tax rises and £15bn of spending cuts for British voters if the Leave campaign wins the referendum.

In Italy, on the day after Papademos took power in Athens, Mario Monti, another economist and a former EU Commissioner for nine years, was installed in Rome. He served as prime minister for two years despite being unelected. This was considered especially acceptable because it got rid of the horrible Silvio Berlusconi, who was hated by everyone, well, apart from the voters who kept returning him to office. In Cyprus in 2013, the EU Commission, ECB and IMF insisted amongst other things that in return for a bailout, a levy of 47.5% be taken on all deposits of more than €100,000 in the two largest Cypriot banks. The people were not consulted. They were just relieved of their money. The Economist called the bailout ‘Unfair, short-sighted and self-defeating’.

The important point that these events establish is that democracy will not be trusted by the EU to deal with such crises, or rather to deal with them in any way other than by making the people pay, and keeping the system that caused the crisis intact. Bring in the technocrats they say, take emergency powers, pass emergency measures, tear up private property rights, suspend elected government, whatever it takes.

Worse, it is not just the EU and its apologists who say this. Democracy is now widely discounted as a satisfactory form of government. Rule by the experts, say the chattering classes, is better than chaos, autocracy or military rule. They seek to insulate national governments from popular pressure and accountability. They describe those who call for democracy ‘populists’. They tell us to be very afraid, and to do what you are told. It is a recipe for disaster. Nothing, let alone the crises of failing systems, can be solved in the long term without the consent of the people involved, and that consent can only be obtained through democratic structures and practices, and that in the end is because people still want to be free.

We should never accept that the answer to a financial crisis is to give a supranational institution, with undemocratic structures and a figleaf parliament, the authority to evict a democratic government so that it can dictate terms directly to the people that government is supposed to serve. We can do better than that.

‘National aspirations must be respected’ said Wilson. Not by the EU. When the Irish people voted in a referendum on the Nice Treaty in 2001 and rejected it, they were asked to revisit their decision. Among other things people had been worried by the proposed extension of majority voting in the Council, on the basis that it put smaller states at a greater disadvantage. The EU would normally not even notice a low turnout (34%), but on this occasion the Irish were asked to vote again, and the following year they were persuaded by their government to approve the Treaty.

In 2005, four countries held referendums on a new constitution for the EU – France and the Netherlands voted against, and Spain and Luxembourg voted for. The EU paused, rewrote the proposal and presented it in 2008 as the Lisbon Treaty in more or less exactly the same terms. A whole continent just looked the other way. This time only Ireland held a referendum, and the vote went against the new treaty 53.4% to 46.6% on a turn out of 53.1%.

The EU’s Irish Commissioner, Charlie McCreevy, later commented ‘all of the political leaders know quite well that if a similar question was put to their electorate by a referendum, the answer in 95 per cent of the countries would probably have been ‘No’ as well.’ At the time, quite unperturbed by the fact that no other country had held a referendum or that most people took the McCreevy view, an editorial in the pro-EU Guardian newspaper described the Irish people who had dared to vote against the treaty as ‘a horde of Goths at the gates of Rome’. A second referendum was duly held in 2009. It was after the financial crisis had broken, and this time the treaty was easily approved.

So, the EU is not itself a democratic institution and it does not respect democratic societies. Yet for all that, the real democratic problem with the EU is not the structures or behaviours in themselves. The problem is that an institution of this sort is a useful mechanism by which national governments are empowered to make major decisions of law and policy without proper discussion in their own democracies. It is popular sovereignty more than national sovereignty that is denied at the heart of the EU. It was no coincidence that the governments of all the member states, save constitution-bound Ireland, decided not to hold referendums on the Lisbon Treaty. They were not going to allow their electorates to prevent them from proceeding in the manner to which they had become accustomed.

The governments of member states appoint their ministers, commissioners and judges to the EU. They can uphold their national interests as they see them, but they are sheltered from discussing and justifying back home the actions and decisions they take in Brussels. In the UK, all of the various domestic procedures for approval and scrutiny of EU law are of little weight against the Council and its Commission, and they certainly cannot make up for the fact that the public is so distanced from the decision-making process that it cannot begin even to understand it. It is unsurprising that the turnout for the EU parliament election in the UK was 35.6% in 2014, and the EU average was 42.6% (and that includes Belgium 89.6% and Luxembourg 85.5%).

A couple of recent cases are also instructive. In the negotiations over the Lisbon Treaty the UK and Polish governments negotiated Protocol 30, a so-called ‘opt-out’ from the Charter of Fundamental Rights of the European Union. In the run up to treaty signature in December 2007 Foreign Secretary David Miliband reported ‘The Government sought to ensure that nothing in the Charter of Fundamental Rights would give national or European courts any new powers to strike down or reinterpret UK law, including labour and social legislation. This has been achieved.’

Well, in 2011, in the case of NS v Secretary of State for the Home Department in the Court of Justice of the European Union at Luxembourg, the British government did not even bother to argue (and had already abandoned the effort before the UK Court of Appeal) that Protocol 30 exempted the United Kingdom from its obligations to comply with the requirements of the Charter relating to its treatment of asylum seekers. The provisions of the Charter offer somewhat greater protection to asylum seekers than national law in the UK or that provided by the European Convention on Human Rights and its Court at Strasbourg.

In 2015, the case of Benkharbouche v Embassy of the Republic of Sudan a cook who had been sacked by the Sudanese embassy was unable to claim for a breach of the Working Time Regulations 1998 (which implement an EU Council Directive) at an Employment Tribunal. The State Immunity Act 1978, a primary act of the UK parliament, barred such proceedings on grounds of diplomatic immunity. The Court of Appeal found that the Act did not need to extend immunity to a cook, and thus offended Article 47 of the Charter of Fundamental Rights which protects access to a court. There was again no mention of Protocol 30 and no dispute that the Charter is directly effective in the UK so far as claims based on EU law are concerned (eg the ‘working time’ claim), and the court simply ‘disapplied’ or struck down the relevant sections of the Act so they were no longer law for the purposes of this case, and the cook’s claim could proceed.

The importance of the decision lies in the fact that the Human Rights Act 1998 made it a point of constitutional principle that a court could declare a primary act of parliament to be incompatible with a right protected by the European Convention on Human Rights, but such a declaration would not affect the continuing enforcement of that act. It was only a ‘signal’ to parliament that it should consider amending or repealing the act. This was the much-vaunted compromise whereby the sovereignty of parliament vis-à-vis the judiciary was to be maintained. Good-bye to all that compromise now, across a new swathe of human rights law. In Benkharbouche the Court of Appeal, using the EU Charter of Fundamental Rights, simply amended the primary act of the sovereign parliament for the purposes of the case.

Many people, especially those who work in defence of the interests of asylum seekers and employees, will welcome these decisions, and understandably so. They do not, however, have also to welcome the means by which they were achieved. It matters greatly in democratic terms that these decisions were made by courts using powers that the government had specifically told the people these courts did not possess. Those who do not recognise that should perhaps check their democratic compass.

The cases also show the cynicism of the Labour government in promoting the notion of an opt-out that manifestly never was, and show too the growing confidence of the European and domestic courts in extending their jurisdictions using the Charter and other EU law.

The cases also point up a wider democratic issue with regard to the role of the judiciary, which is deeply intertwined with both the waning belief in democracy and the role of the EU. Despite its ‘ingenious’ sovereignty compromise, the Human Rights Act 1998 in fact gave the judiciary unprecedented scope to make law, and to do so on the basis of general principles rather than tightly defined provisions and precedents. And now, EU law has extended that scope, and given the courts an undebated and mostly unremarked extension of their power to strike down primary acts of parliament.

The judicial branch of government plays an important role, not least in defending the rule of law. It has, however, been pushed into deciding matters that properly belong in the sphere of democratic politics, not law. The rule of law is important, but representative democratic procedures are the most progressive aspects of the legal-constitutional package, because they give much fuller expression to the principle of equality and the practice of freedom. When we talk about the rule of law, it is democracy that should decide which laws should rule. It is important to insist upon this because the importance of democracy has been significantly diminished in recent decades. ‘Majoritarian’ has become a pejorative usage. It refers in fact to a procedure that is based on the idea that people are equal and that majority voting is the only way yet devised to give effect to that principle.

There are those who argue that enhanced judicial power does not infringe democratic principle, because the aim of democracy is to accord all individuals equal status and respect. They argue that while this imperative will usually be satisfied by the use of majoritarian procedures, such as parliamentary democracy, there is also a legitimate place for non-majoritarian procedures, such as rule by the judiciary in respect of important policy matters, so long as the procedures themselves conform to the underlying aim.

This is wrong. Even though such procedures may be sanctioned by our elected representatives, and operate in the context of the rule of law, this argument is nothing less than a denial of the principle that all citizens are equal, and that a true expression of that equality will involve their meaningful participation in important policy decisions. Democracy is fundamentally about process not outcomes, and it is about the participation of the people in that process. It is not about what is done for them, or to them. It is about what they do. That is what freedom too is about.

It is said that democracy works at many levels – indeed it does, it can be local, national and international; legislative, executive and judicial. A great deal of delegation and outsourcing is inevitably involved. The key level, however, is the level where participation and control by the people occurs, and there has been a consistent shift from this level, away from the people to the experts and technocrats. This is what the shift of power to the judiciary in London, Strasbourg and Luxembourg entails, and also what the shift of decision-making to the EU entails.

Others argue that, given the weakness of our democratic institutions, not to mention the cynicism and contempt in which they are held, we have no choice but to rely upon a judicial elite – or an EU. That is an argument for improving and strengthening those institutions rather than with dispensing with them. We should also reject the idea that even if parliament is being sidelined at least the rule of law is being strengthened. On the contrary, the rule of law is itself degraded by the recourse to general principles and the vesting of wider discretionary powers in the judiciary, let alone the functionaries of the EU.

As for the people, they are finding it hard to get a look in. They are being kept a long way away from the decision making process. Take the case of Hirst v United Kingdom. In 2015 the Grand Chamber of the European Court of Human Rights at Strasbourg decided that the UK statute denying convicted prisoners the right to vote in domestic elections was in breach of their democratic rights under the European Convention on Human Rights, and should be amended. Interestingly, in October 2015 the Court of Justice of the European Union in the case of Thierry Delvigne v Commune de Lesparre-Médoc, Préfet de la Gironde accepted jurisdiction of ‘prisoner voting’ case in France, on the basis of the application of Articles 39 and 49 of the Charter of Fundamental Rights of the European Union.

The main point here of the unresolved Hirst case is that a political issue has been reposed as a legal one, so as to suggest that there is in fact a right answer which the expert alone, the judge, is able to discover. There is no right answer. There is a difference of opinion about whether prisoners should be allowed to vote. In a democratic society an important issue like this should be decided by majoritarian democratic procedures, in which people are involved – with public discussion, investigation, researching, discussing, lobbying, and then voting.

The fair point has been made that the UK government has consistently approached the EU in a grudging, hostile and instrumental way. It does not follow that this is a behavioural glitch in the workings of the EU which some remedial therapy might remove. No doubt the UK is graceless about its refusal to entertain ‘ever greater union’ or embrace the ‘social’ dimensions of the Union or the opportunities for ‘solidarity’. The fact is that the EU today is primarily a market bloc not a mutual or co-operative society. It is true that there were and are ambitions for a different trajectory, and it is true of course that the countries were originally brought together to prevent further warfare. It is also true, that for years the European peace has long been kept by Nato and the military might of the United States of America.

This not to say that there are no reasonable and good grounds to be concerned about leaving the EU. There are. It is sensible to worry about shocks to prosperity and how they can be handled. It is admirable to feel genuine internationalist concern about the impact of such a decision on those people who would appreciate the assistance of the UK within the EU, and may feel that ‘Europe is the less’ if the UK ‘clod be washed away’.

There are many other grounds that are very much less convincing. If we leave the EU, it is said, the UK as a nation will become isolated, inward-looking, culturally impoverished. Is it seriously supposed that we depend upon our MEPs (hardly anybody can even name one) and the Council of Ministers to entice us to visit other European countries, to enjoy their art and architecture, to listen to their music, to keep in touch with family and friends there, to attend academic conferences and organise exchange programmes, to drink and think with them all? I fear that even the influence in the UK of Monsieur Foucault will comfortably survive a Brexit. I am sure that we will still be permitted alongside Turkey and Switzerland, to field a team in the UEFA champions league, if we qualify. Would we really trade a better grip on our democratic liberties for the convenience of shorter airport visa queues, an Erasmus programme or the whole mess of pottage in Brussels?

If we leave the EU, it said, it will be the occasion of a more right wing government at home. This argument represents perhaps the nadir of the whole sorry history of lesser-evilism. The role of the the left is now reduced to arguing that it should prefer David and George to Boris and Michael. Comrade, which side of the Tory cabinet are you on? In truth, there is not even the proverbial cigarette paper between them, and Jeremy Corbyn’s Labour Party has, predictably, fallen into line behind. The sorry state of contemporary democracy can only be energised by a modest improvement to its relationship with the people who actually vote in it. There will be no move to the right, if we argue and organise against a move to the right. Are we to leave the task to Jean-Claude Juncker?

If we leave the EU, it is said, we will lose the benefit of progressive laws especially with regard to workers’ rights. It should first be noted that EU labour law is by no means as progressive as some people seem to assume. That much is evident from the rulings of the European Court of Justice in December 2007 in International Transport Workers’ Federation v Viking Line APB and Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet which held that the right of trade unions to take industrial action could be subjected to certain restrictions in accordance with the principle of proportionality, and specifically decided that industrial action in a member state to obtain pay increases exceeding the level of protection guaranteed by the EU Posted Workers Directive, where there are no clearly defined national law requirements in that member state for such an increase, could not be justified. That is a serious blow to free trade unionism.

Moreover, the assumption that there will be a bonfire of workers’ rights if Brexit occurs is ill founded. A senior UK barrister produced a 66 page briefing on the issue, and concludes with the scary observation that post–Brexit ‘most fundamentally, a future Government could simply reverse rulings it did not like’. It is telling that the author suggests that it is the government as opposed to parliament that reverses rulings. Government is used as short-hand, because parliament is assumed to be the plaything of government. That rests upon another assumption, that there is nothing that parliament or the public or the trade unions or the workers could do about it. We should remember that in 1972 the trade unions successfully defied the National Industrial Relations Court, and in 1974 they brought down the government.

The careless comment concluding that briefing says a great deal not just about the attitude of a lawyer to social change, but about the loss of morale and confidence in society about our ability to have any impact upon our government. This is why democracy and the attitude of freedom matter so much in this referendum. We should recall that some progress was actually made in this country before 1973. Under pressure from the people, and only under that pressure, it was parliament that brought forth factory acts, social insurance legislation, a national health service, free education for all, laws against discrimination on the grounds of race, colour or sex – and all before the UK joined the EEC. How did we manage? We might add that it was parliament that in 1998 brought in the national minimum wage, the envy of workers in the rest of Europe today.

It is said that Brexit will bring racists and fascism to our streets, and create a harsher, nastier culture. It won’t if we don’t allow it to happen. The fortunate truth is that there is no sign at present of a resurgence of neo-fascism. There is however loose and dangerous talk about people being racists and fascists. People who favour Brexit are being branded racists for no good reason at all.

A poll prepared by ICM Limited for the period 10th – 13th June 2016 found that of persons categorised as C1 class, 48% were for Remain, and 39% for leave. Of those categorised as C2 class, 27% were for Remain, and 61% for Leave. The class divide revealed here in voting intentions reflects the judgement of the relatively worse off that they have little stake in the EU, and that is true in both economic and political terms. The EU has contributed to the stagnation of wages, austerity in public services and the transformation of communities without consultation. The attempt to silence these people by demonising them has been the most unattractive aspect of the referendum campaign, and it has deep roots.

Actually, with a bit of luck Brexit will bring a more tolerant, liberal and enlightened society. People may be able to express their real concerns about the impact of immigration on the jobs and pay that they would like to obtain, without being derided as racists, xenophobes and neo-fascists. People may even be able to disagree with the EU and the Guardian without being described as a ‘horde of Goths’.

It is shameful that all the major parties were opposed to holding a referendum on important changes in the way we are governed. That approach expressed the contempt they felt for the worth and the intelligence of ordinary people. For the major parties those people weren’t good enough to understand, they couldn’t be trusted, they would come to the ‘wrong’ conclusions. Democracy was not for them. It is a sobering thought that without the steady rise of UKIP David Cameron would never have promised a referendum in January 2103.

Nevertheless, against expectations and despite scare-mongering by the leadership of both main camps, the debate has actually turned into a real, lively, healthy engagement with the issues. We should keep that up. We should vote Leave. There will be risks, but that is the radical option. We will not fully restore respect for democracy or the spirit of freedom overnight, but we will have made a new start, and we will not prevail without them.

John Fitzpatrick
Professor of Law
Director of the Kent Law Clinic

Written by anubis

June 23rd, 2016 at 11:35 am