With the next General Election on the horizon, the Conservative’s proposed European Union ‘In/Out’ referendum, slated for 2017, has become a central issue. Scotland chose to stay part of a larger union – would the same decision be taken by the United Kingdom?
In the first of a pair of posts, some key legal figures share their views on why Britain should leave the European Union.
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“[The] EU as I see it is an anti-democratic system of governance that steadily drains decision-making power from the people and their elected national and sub-national representatives and re-allocates it to a virtually non-accountable Euro-elite. In many ways, this is its purpose. … Important policy decisions in sensitive areas of civil liberties … [are] taken by government officials and ministers with minimal input from parliaments and virtually unremarked by the media and general public.
“The European Commission started life as a regulatory agency attached to a trade bloc, which rapidly turned its regulatory powers on the Member States that had put it in place. Much the same can be said of the centralising Court of Justice, a significant policy-maker in the EU system.
“Democracy, in Robert Dahl’s sense of popular control over governmental policies and decisions or as a broad array of the rights, freedoms and – most important – the opportunities that tend to develop among people who govern themselves democratically, is out of the reach of the EU system of regulatory governance.”
– Carol Harlow, Emeritus Professor of Law, London School of Economics, and author of Accountability in the European Union and State Liability: Tort Law and Beyond
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“There is little if any direct trade advantage for remaining a member of the EU on the present terms. The direct financial burden of EU membership is some £17bn gross (£11bn net) and rising. … 170 countries in the world now operate in a global market based on trade according to “rules of origin”, and the UK now trades mostly with them, not with the EU.
“Advocates of the EU always present the “single market” as indispensable to the UK. Is this really so? The EU Single Market is the never ending pretext for the EU’s harmonisation of standards and laws across the EU. EU Single Market rules now extend well beyond what was the Single European Act 1986, and far beyond what is necessary to enable borderless trading within the EU.
“As the sixth largest trading nation in the world, were the UK to leave the EU Single Market, we would be joining the 170 other nations who trade freely in the global single market. We would regain control of our own markets and over our trade with the rest of the globe.”
– Bernard Jenkin, MP for Harwich and North Essex and Chair of the House of Commons Public Administration Select Committee
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“The single currency is the crux. We did opt out of the Euro, but we can’t escape the Euro. The deflationary bias in the Eurozone, the catastrophic effects of a single monetary policy across such disparate economies and societies, culminating in banking and government debt crises, all continue to bear down on our exports and our overall economic performance.
“As the eighteen Eurozone countries meet apart from the non-Euro members of the EU to determine major issues of financial and fiscal policy, so we are increasingly marginalized within the EU, while having to live with the consequences of decisions in which we’ve had no part. … The EU will continue to be dominated by the Eurozone countries. They will do their best to salvage the single currency and will probably succeed, at least for some years to come. If British policy is to be characterized by more than passivity and fatalism, we will either have to establish new terms of membership of the EU (well-nigh impossible to achieve on a meaningful basis when the unanimous agreement of the EU is required), or find a way to split the existing EU into two unions of different kinds, or leave altogether.”
– Alan Howarth, Baron Howarth of Newport, former Member of Parliament
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“Whatever the merits of the European Union from an economic or political perspective, its legal system is unfit for purpose. In the United Kingdom we expect our statutory laws to be clear and the means by which these laws are made to be transparent. We equally expect our court processes to be efficient and to deliver unambiguous judgments delineating clear legal principles. We expect there to be a clear demarcation between those who make the laws and those who interpret them. … All [matters] are quite absent within the legal institutions of the EU.
“It is perhaps understandable that an institution which is seeking to unite 28 divergent legal traditions, with multiple different languages, struggles to produce an effective legal system. However, the EU legal system sits above and is constitutionally superior to the domestic UK one. … The failures of the EU legal system are so fundamental that they constitute a flagrant violation of the rule of law. Regardless of the position of the UK within the EU, these institutions should be radically and urgently reformed.”
– Dan Tench, Partner, Olswang LLP and co-founder of UKSCblog – the Supreme Court blog
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“The Euro has faced serious difficulties for the last five years. The economic crisis exposed flaws in the basic design, while the effort to save the currency union has led to recession and high unemployment, especially youth unemployment, in the weaker nations. This has moved the focus of the EU from the single market to the economically more important project of saving the Euro.
“The effect of this on the UK is that the direction of the EU has become more integrationist and has subordinated the interests of the non-Euro states. Currently this covers ten countries but only the UK and Denmark have a permanent opt out. The protocol being developed to ensure that the eighteen do not force their will on the ten will need revising when it becomes twenty-six versus two. The EU will not be willing to give the UK and Denmark a veto over all financial regulation. Inevitably, this will need some form of renegotiation as the UK has a disproportionately valuable banking sector which cannot be expected to accept rules designed entirely for the advancement of the Euro.”
– Jacob Rees-Mogg, MP, North East Somerset
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“The reluctance of the European Court of Human Rights (ECtHR) to find violations of human rights in sensitive matters affecting States’ interests raises the question whether subscribing to the European Convention on Human Rights (‘ECHR’) should be a pre-requisite of European Union membership, as is now expected under the Treaty of Lisbon. … [T]he decisions of the ECtHR are accorded a special significance in the EU by the European Court of Justice because the ECHR is part of the EU’s legal system.
“This was recently demonstrated in S.A.S. v France, concerning an unnamed 24-year-old French woman of Pakistani origin who wore both the burqa and the niqab. In 2011, France introduced a ‘burqa ban’, arguin that facial coverings interfere with identification, communication, and women’s freedoms. … A British Judge has said, “I reject the view … that the niqab is somehow incompatible with participation in public life.” The ECtHR held [that] France’s burqa ban encouraged citizens to “live together” this being a “legitimate aim” of the French authorities. … Britain could leave the ECHR and make its own decisions but then, insofar as the EU continues to accord special significance to ECtHR decisions, still effectively be bound by them.”
– Satvinder Juss, Professor of Law, King’s College London and Barrister-at-Law, Gray’s Inn
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