Parliamentary sovereignty won’t protect us from the EU, because it’s already dead

So I didn’t call it right: I thought David Cameron would at the very least call a referendum to give a Conservative government the mandate to re-negotiate some of the terms of the UK’s membership of the EU. In the event, today, he merely committed to a pledge that there would be a referendum over any further proposed transfer of powers to the EU (a so-called ‘referendum lock’). In addition, he promised a Tory government would enact a ‘United Kingdom Sovereignty Bill’ guaranteeing that the UK Parliament would retain ultimate sovereignty in the governance of the UK.

However, as Cameron acknowledged in his speech, the Lisbon Treaty contains provisions enabling national vetoes to be abolished and further powers to be transferred to the EU without requiring additional treaties. This means that the ‘referendum lock’ is null and void: by virtue of the same principle making a post-ratification referendum on the Lisbon Treaty pointless (the fact that it has already passed into EU law), referendums on subsequent transfers of sovereignty could also be futile, because the same EU law authorises those changes.

Cameron referred to these provisions in the Treaty as ‘ratchet clauses’ and indicated that they should not be used to transfer additional powers to Brussels: “we would change the law so that any use of a ratchet clause by a future government would require full approval by Parliament”. So, in practice, any future transfers of power to Brussels would not be submitted to the people in a referendum but would be decided by Parliament: the same Parliament that voted to ratify the Lisbon Treaty in the first place, in violation of the Labour Party’s manifesto promise and in defiance of the people’s wishes in the matter. So how can we be confident that a Conservative or subsequent Labour government, commanding a parliamentary majority on the basis of a minority of the popular vote, would not mobilise its whips to rubber-stamp a further EU appropriation of UK sovereignty if it felt this were in the ‘national interest’. Clearly, the Conservative leadership feels it is in the national interest to remain very much committed to EU membership, notwithstanding the considerable erosion of UK sovereignty brought about by Lisbon. Would similar considerations regarding the overriding strategic importance of Britain remaining in the EU be used to justify further transfers of power should they be demanded by our EU partners?

Effectively, all that Cameron’s speech offers us is a reaffirmation of UK-parliamentary sovereignty, both in the form of the proposed UK Sovereignty Bill and the insistence that any use of ‘ratchet clauses’ in the Lisbon Treaty would require parliamentary approval. The referendum pledge isn’t worth the manifesto paper it’s written on, not just because there won’t be any further treaties on which to hold a referendum, nor because it’s hard to trust an incoming Tory government’s promise on this after the Labour government’s breaking of theirs; but because the principle of parliamentary sovereignty itself is being held up as supreme. Therefore, if Parliament decides that something is in the national interest, it regards itself as the ultimate arbiter in the matter without recognising any legal, let alone moral, requirement to seek popular consent for its decision through a referendum.

In other words, the real problem with Cameron’s assurances is that he is basing his defence of the UK-national interest on the supreme sovereignty of Parliament at the very moment at which the legitimacy of that sovereignty is being called into question as never before.

In a sense, Cameron is merely offering us parliamentary business as usual. He refers to a Conservative victory in a general election as sufficient to give him a mandate (without a referendum) to re-negotiate certain aspects of EU law that Britain has signed up to (e.g. the Social Chapter, the Charter of Fundamental Rights, and areas of jurisdiction over criminal law) over the first five-year term of a Tory government. Then, if Britain has still not succeeded in re-negotiating these things, a tougher series of measures could be presented to the British people in the Conservative manifesto for a second term in government – but still without questioning the fundamental commitment to EU membership.

However, all of this is predicated on there being no fundamental changes to the way Britain itself is governed, let alone Britain’s relationship with the EU:

  • Cameron’s serene confidence, as the leader of one of the two governing parties, that the absurd electoral system will afford him at least two terms in government despite securing less than half of the popular vote even in England, let alone in the other countries of the UK
  • those ‘terms’ themselves being extended at the government’s choosing to a full five years rather than fixed terms of, say, four years, which would probably be approved by a majority of the electorate if a referendum were held on it . . .
  • the insistence on the ultimate authority of the UK Parliament both as a general principle and in the particular matter of our relationship with the EU: as much as to say ‘Parliament knows best’; and the only ‘referendum’ the people are going to be offered in reality is a general election whose result doesn’t even reflect the will of the people, but on the basis of which the government ascribes to itself a mandate to do as it chooses.

Parliament proved itself to be unworthy of the British people’s trust by surrendering our sovereignty to the EU without seeking our consent. Now we’re supposed to base our entire confidence that further erosions of our sovereignty can be prevented on the same Parliament.

The point is sovereignty doesn’t even belong to Parliament, whether in the act of giving it away or in the act of exercising it in the supposed defence of our national interests: it belongs to us, the people. Indeed, you could even argue that the venality and spinelessness with which Parliament surrendered our sovereignty to the EU by agreeing to ratify Lisbon without our consent demonstrated the nullity of the very parliamentary sovereignty through which those powers were given away. This was not only a case of ‘you can’t give away what you don’t have’ but ‘you can’t keep what you don’t have’: Parliament’s ‘letting go’ of our sovereignty illustrated the fact that it had already lost it
and any valid claim to it.

So, on the specific matter of Europe, nothing less than a referendum on whether Britain continues to be a member of the EU will do. This will be an exercise of true, popular, not parliamentary, sovereignty. But beyond this particular matter, it’s time that UK-parliamentary sovereignty became truly subordinate to the will of the people, and more specifically, the will of the peoples of the different nations that make up the UK.

The days of a single UK parliament claiming sovereign jurisdiction over every aspect of the British people’s lives are numbered. But it’s up to us, the people, to ensure that we take it back from the EU ourselves and do not leave it to Parliament to do so in our name. Because Parliament has already lost it.

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