Brexit: A curious case of mistaken identity?

by Kenneth Wallace-Mueller, Member of the MEF Board

The United Kingdom is due to withdraw from the European Union in March 2019. But why? There are many possible explanations, however one common argument is that the UK voted to reclaim sovereignty from the EU.

Brexit is a complex and highly emotional issue, with wide ranging impacts for both the UK and the EU27, and presenting risks and opportunities for both. This article seeks neither to support nor oppose Brexit, but merely examines a different theory on the outcome of the referendum.

A question of sovereignty

Reclaiming sovereignty is, in principle, a justifiable argument. In its 45 years of membership of the EU, the UK has indeed sacrificed elements of its sovereignty to the EU. This includes the ability of the UK to freely create laws which bind its citizens. As a Member State, EU Directives and Regulations are regularly imposed on the UK Parliament, which in turn must enact certain laws within a set framework.

This is however a condition of membership of the EU as a supranational body. Every EU Member State has given up the same degree of sovereignty, which is arguably a necessary measure to allow the 28 Member States, acting together as the EU, to coordinate certain policies.

There are however two elements to consider in making this argument of sovereignty.

Firstly, the UK has a curious feature in its constitutional law: that of “parliamentary supremacy”.[i] This is an offshoot of the democratic principle, where the Parliament acts as the elected voice of the people. As this voice may change over time with each successive election, parliamentary supremacy dictates that no UK Parliament can be bound by any previous Parliament, and consequently no Parliament can bind a future Parliament. Indeed, any UK law can be amended or repealed with a simple majority.

This concept is one reason why the UK has no written constitution. In comparison, following National Socialist rule in Germany, certain democratic and liberal values have been entrenched so that they are impossible to remove from the constitution by any future parliament. These are called “Ewigkeitsklausel” or eternity clauses, and would require a revolution and new constitution to repeal.[ii] From the perspective of UK parliamentary supremacy however, this would argued as undemocratic, as the rights of the current electorate have been restricted.

EU membership however means that the UK Parliament has willingly bound itself to the supremacy of the EU, which in effect limits its power to freely enact certain laws.[iii] Despite being legally possible, and perhaps economically beneficial, this does not sit well with the principle of parliamentary supremacy.

The second point is that throughout its membership, the UK has secured very favourable conditions in comparison to other Member States. This includes a significant rebate from the EU budget, as well as exemption from both the Eurozone and Schengen. The UK therefore retains its own currency, monetary policy and border controls.[iv] Furthermore, as a country of approximately 66 million people, the UK is the third largest Member State (after Germany and France), and as such has greater representation in the European Parliament than the 25 other Member States.[v]

For these reasons, despite arguments commonly being made that Brussels wields power over the UK, the UK indeed has an equal, if not better than equal, role in the EU decision making process, which in turn binds all 28 Member States.

This argument of sovereignty is therefore – on a high level at least – not entirely satisfactory. There is however one alternative theory.

The Human Rights Act

In 2001, John Hirst, a British convicted killer, challenged the validity of a UK law which effectively banned prisoners from voting in parliamentary elections.[vi] The High Court however dismissed the case[vii], and Hirst appealed the judgment, taking the case to the European Court of Human Rights (“ECHR“).

In 2005, in Hirst v UK the ECHR ruled that the ban breached the prisoners´ fundamental right to free elections, as protected by Protocol I, Article 3 of the European Convention on Human Rights (“Convention“).[viii] The Convention has been implemented into UK law by the Human Rights Act 1998.[ix]

After the ECHR judgment, the UK Government sought to comply with it and pass legislation to overturn the ban, however Parliament did not support any of the proposals.[x] The issue became highly politicised, with a general outcry that the UK Parliament no longer had sovereignty to independently enact laws, and that the judgments of the UK senior courts could be appealed to a court in France to be heard by a majority of non-UK judges.

In 2015, Prime Minister David Cameron sought to overcome the problem, and promised to repeal the Human Rights Act 1998 and replace it with a UK bill of rights.[xi] This approach would effectively mean that the UK would no longer be subject to the Convention, and that the UK Parliament and courts would no longer be subject to the jurisdiction of the ECHR. By creating its own bill of rights, the UK would be allowed to enact laws as it saw fit.

In 2015 and 2016, the UK Conservative party was experiencing an increasing number of defections of MPs to the EU-critical United Kingdom Independence Party (“UKIP“), and additionally faced a loss of its grassroots supporters.[xii] In response to this as well as a number of other issues, Prime Minister David Cameron announced a referendum, which would allow the British people to decide whether to remain in the EU or to leave, i.e. Brexit.

A continent of Europes

It is at this point we need to consider the word “Europe”. Europe is one of seven continents, extending from Portugal, Spain and France in the West to the Ural mountains in Russia in the East.[xiii] For this reason, the word has seen widespread usage in various contexts.

The European Union is a socio-political union of 28 Member States, first established on 1 January 1958. Its decision-making bodies include the European Commission, the European Council, and the European Parliament.

Rather confusingly, there is the separate Council of Europe. Established on 5 May 1949 and therefore pre-dating the EU, the Council of Europe has 47 member countries. These include the EU Member States, as well as countries such as Russia, Ukraine and Turkey.[xiv] Its aims include the promotion of human rights, democracy, and the rule of law, and to this end, the Council of Europe adopted the Convention in 1950.

The Council of Europe and the EU are frequently confused with one another.[xv] Indeed, they have similar names, similar flags, and both have an international court which has wide-reaching relevance.

In 1959, the ECHR was established in Strasbourg to hear cases concerning potential breaches of human rights by the member countries of the Council of Europe. It was on this basis that Hirst took the UK to the ECHR.

On the other hand, the Court of Justice of the EU (“CJEU“) is the highest court of the EU, based in Luxembourg. Its tasks include ensuring the Member States and the EU bodies themselves comply with EU law. The CJEU is often criticised because some believe it removes sovereignty from Member States´ national courts, however this is misleading. The closest competence it has in this regard, is that it has a monopoly on the interpretation of EU law.[xvi]

The best way to explain this concept is as follows. As EU law seeks to harmonise various social and economic policies across the 28 Member States, it must be applied consistently to be effective. If a court in the UK for example needs to understand what a specific point in EU law means in order to make its judgment, it must refer this question to the CJEU for interpretation. The CJEU will then hear the case and decide on how the specific point in EU law must be interpreted. After this, the UK court will then continue to make its own judgment based on this interpretation. National courts therefore retain their sovereignty in interpreting national law.

From the perspective of the UK Parliament, it is arguable that the Convention and the ECHR have placed greater restrictions on the UK´s law making powers than EU law and the CJEU.[xvii]

It is however noteworthy that after the second World War, UK Prime Minister Winston Churchill proposed the concept of the Council of Europe, and David Maxwell Fyfe, a UK lawyer and lead prosecutor at the Nuremberg trials, prepared the first draft of the Convention.[xviii] The UK therefore took the lead in developing the European standard of human rights.

In light of the general similarity between the institutions of the EU and the Council of Europe, the CJEU and the ECHR, the increasing concern about loss of national sovereignty, as well as the publicity of Hirst v UK, the repeal of the Human Rights Act 1998 and campaigning for Brexit, it is possible that the distinct concepts of withdrawing from the Convention and withdrawing from the EU may have become mixed.

On this point is interesting to note that, despite the Conservatives´ prior energetic campaigning for the UK bill of rights and claims that the Convention restricted UK law making powers, since the announcement of the Brexit referendum and the negotiation proceedings with the EU in 2016, the political will to pursue the repeal of the Human Rights Act 1998 has all but disappeared.

Perhaps it does not require a stretch of the imagination that, at least in respect of the sovereignty issue, the understanding of some may have been that the UK had sought an answer on the withdrawal from the Convention, rather than from the EU.

 

Please note that the views expressed are those of the author and do not necessarily represent or reflect the views of Munich European Forum e.V.

 

References:

[i] https://www.parliament.uk/about/how/role/sovereignty/

[ii] Specifically, Article 79(3) of the Grundgesetz; https://www.gesetze-im-internet.de/gg/art_79.html

[iii] Done by means of the European Communities Act 1972; https://www.legislation.gov.uk/ukpga/1972/68/contents

[iv] https://www.euractiv.com/section/uk-europe/linksdossier/europe-a-la-carte-the-whats-and-whys-behind-uk-opt-outs/

[v] https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates

[vi] https://www.telegraph.co.uk/news/uknews/law-and-order/8103007/Votes-for-prisoners-John-Hirst-profile.html

[vii] Specifically, Section 3 of the Representation of the People Act 1983; http://www.legislation.gov.uk/ukpga/1983/2

[viii] Case Hirst v UK (No 2) (2006) 42 EHRR 41; https://www.telegraph.co.uk/news/uknews/law-and-order/8103007/Votes-for-prisoners-John-Hirst-profile.html

[ix] https://www.legislation.gov.uk/ukpga/1998/42/pdfs/ukpga_19980042_en.pdf

[x] https://www.bbc.co.uk/news/uk-politics-20053244

[xi] https://www.bbc.com/news/uk-politics-33134338

[xii] https://www.telegraph.co.uk/news/politics/conservative/12071888/The-Conservative-Party-should-be-worried-about-its-long-term-prospects.html

[xiii] https://opinionator.blogs.nytimes.com/2012/01/09/where-is-europe/

[xiv] https://www.coe.int/en/web/portal/47-members-states

[xv] https://www.coe.int/en/web/about-us/do-not-get-confused

[xvi] https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en

[xvii] https://www.echr.coe.int/Documents/CP_United_Kingdom_ENG.pdf

[xviii] http://www.journalonline.co.uk/Magazine/56-9/1010095.aspx

Brazilian Elections 2018: What does it mean for the EU?

By Joao Lucas Hilgert, Adviser to the board of the Munich European Forum

Part 3 of 3

If you have been paying attention to western media coverage of the Brazilian elections, you would probably think that Brazil, along with Britain, the US and the Philippines, has gone off the right-wing cliff and is about to crash and burn. President-elect Jair Bolsonaro’s previous statements have made him somewhat infamous in this context. His opinions on the failure of democracy and his praise of the Brazilian dictatorship were controversial to say the least. His comments on homosexuals, women and people of color have offended many, and rightfully so. Which lead to the surprise of many, when upon winning the election Bolsonaro called for national unity of a country made up of “many opinions, colors and orientations”. He repeatedly referred positively to the constitution and vowed to uphold democratic principles. He didn’t speak of threats and fears, but of hope and prosperity. His whole victory speech was underlined by one concept: Liberty. As he himself put it: “Freedom is a fundamental principle. Freedom to come and go, to walk on the streets everywhere in this country. Freedom to innovate. Political and religious freedom. Freedom to inform and to hold an opinion. Freedom to make choices and be respected for them.” Exactly the opposite of what would have been expected of a populist, fascist, right-wing strongman.

 

Is it too early to tell what he will make of the executive office? Yes, definitely.

Is it too early to say if he will indeed become the threat to democracy that so many fear? Undoubtedly.

One could argue that his older remarks should not be taken at face-value and that we should shift our focus to his more recent and more moderate rhetoric. His comment that he was in favor of torture, for an instance, took place nearly twenty years ago. In the last few months he has made more affable comments towards homosexuals, women and racial minorities. However, not all of his remarks were made that far in the past. In 2016 he proclaimed that the mistake of the military dictatorship was that they tortured instead of killing. Furthermore, one could in turn argue that his recent, seemingly more moderate stance is simply electoral pandering, or just a way to calm down his detractors, especially if taken into account that there was an almost successful attempt on his life in September. Though he will not appear publicly as often now that the election is over, there are definitely concerns that such an attack could happen again before he’s sworn into office.

 

What has been more constant throughout the election has been his liberal economic stance. He has run on a decentralized, small government platform, with particular focus on open trade policies. And this is where the consequences for the EU lie. If his more authoritative views are implemented, he will definitely be seen as an enemy to European values such as democracy. However, what has escaped the focus of most European commentators during this election is the fact that a less isolationist Brazil is extremely beneficial to the European Union and particularly those EU members that heavily rely on exports, such as Germany. According to the German-Brazilian chamber of commerce 10% of Brazil’s industrial gross domestic product is created by German companies alone, and São Paulo, Brazil’s largest and richest city, has the largest amount of German companies of any city in the World (excluding obviously Germany itself). Brazil alone is the EU’s 11th largest trading partner, according to the European Commission, and considering Brazil is the World’s 9th largest economy, there is still room to grow when it comes to trade.

In the last 15 years, Brazil has shifted its foreign policy towards the so-called South-South axis. This means that Brazil gave preferential treatment to the Southern Hemisphere in terms of bilateral agreements and trade relations. The net result of these policies is simply bad. Perhaps the best example of this trend is the government-owned National Bank for Economic and Social Development (BNDES). It financed many projects across countries in Latin America and Africa. However, many of those were handed to countries lead by left-wing governments with an arguably negligible trade balance with Brazil, raising the suspicion of an ideological bias in the selection process for possible prospects. Many of these countries now find themselves in tough economic situations and are unable to pay back these loans. Venezuela for an instance still owes Brazil €787 million. The fact that they almost defaulted on their payment of US$ 274 million earlier this year does not exude reassurance that they will be able to repay that debt any time soon. And Venezuela is not alone. Mozambique owes € 375 million and has forfeited a payment of US$ 22 million. The third and largest creditor on that list is Angola. While their situation is less dire, the fact that they owe a total of € 1 billion to Brazil as well as € 19.6 billion to China and Russia raises concerns that they will not be able to pay these loans back in the future. Since the BNDES is a publicly owned bank, these outstanding loans have to be covered by the Brazilian Treasury, i.e. the Brazilian taxpayer. Most of those loans were used to finance big infrastructure projects, something that Brazil desperately needs itself. And, as mentioned previously, that money was given to countries that bring much less to the table than one would expect. Brazilian exports to these three countries combined totaled € 1.7 billion, a full € 4.3 billion less than Germany alone and € 29.4 billion less than the EU as a whole.

 

It’s no surprise that in his victory speech Bolsonaro vowed to “free Brazil and Itamaraty (Brazil’s foreign ministry) from ideologically based international relations” and “seek bilateral relations with countries that can aggregate economic and technological value to Brazilian products.” He didn’t specifically name any countries (or unions thereof), but it is implied that he means the US and the EU. Furthermore, this message resonates with many Brazilians, who feel those investments would be much better spent in a country in dire need of an infrastructural overhaul and that Brazil should focus on countries that actually bring something to the table.

While the possibility of an authoritarian government in Brazil could prove to be devastating to its constitutional democracy, a Brazil “open for business” might be the best outcome for Europe.

Also check out Part 1 and 2 of our special series!

 

Please note that the views expressed are those of the author and do not necessarily represent or reflect the views of Munich European Forum e.V.