Sovereignty and the European Communities
FCO 30/1048
Annotated by:
Richard North
17 February 2002
Introduction
In
1971, during the final stages of the negotiations for Britain’s entry into what
was then termed the “Common Market”, the “anti-marketeers” – as they were then
called - had made some impact with the claim that membership would involve an
unacceptable loss of sovereignty.
This claim clearly
had a significant impact on the Foreign and Commonwealth Office, sufficient at
least for anonymous civil servants to write a detailed briefing on the
sovereignty issue. This confidential
document was never published and, for the last thirty years has lain in an FCO
file, guarded by official secrecy. Only
under the thirty year rule was it finally released and its contents laid bare.
The document is massively
important for many reasons, not least because it demonstrates that the FCO had
a very clear idea of the repercussions of joining the “Community”, as it put
it. It knew that it would involve a
major loss of sovereignty and, in due course, an end to parliamentary
democracy. Despite knowing this, it
offered the advice that HMG
and “all political parties” should not “exacerbate public concern by
attributing unpopular measures or unfavourable economic developments to the
remote and unmanageable workings of the Community”.
Entitled “Sovereignty and the
European Communities”, had this document been published during the debate which
led up to Britain joining the EEC, it is hard to believe that public opinion
would have been unaffected. In fact, so
great would probably have been the outrage that it is hardly likely that any
political party could have sanctioned our entry. It is a measure of the deceit perpetrated by the then government,
therefore, that its findings were kept confidential.
If the magnitude of the concepts explored by
this document are even now fully understood, it is hard to see how any rational
person could wish for the United Kingdom to remain a member of what has now
become the European Union. For that
reason, the paper has been reproduced here, together with a running commentary,
which brings home the stunning duplicity of the FCO and the terrible deceit
that has been perpetrated on the British peoples.
Original portions of the text are reproduced in
italics, retaining the original
numbering scheme. The Annex is
reproduced without annotated comment, the inferences from this being
self-evident.
The FCO
paper
The object of the paper was, according to the
FCO author(s), “to examine the implications of entry into the European
Communities for British Sovereignty”. This was a subject, it was felt, that
aroused “widespread if somewhat vague public concern and which could become the
central political issue in the national debate on entry to the Community”.
Nevertheless, the paper did not seek to provide
a comprehensive philosophical analysis of sovereignty but set out to clarify
the various ways in which the term was then commonly used. The authors also sought to “identify the
relevant changes which will be involved in joining the European Communities”
and suggested “a number of conclusions and implications for policy”.
The concept of sovereignty
1. Historically the concept of
sovereignty has been of major importance to both political scientists and
jurists. The growth of its use was
closely associated with the development of the system of nation states in
Western Europe: there was no full mediaeval equivalent and the wider claims of
the Holy Roman Empire and the temporal power of the Pope cannot really be
considered in terms of national sovereignty or nation states.
So wrote the authors, who immediately position
sovereignty as an academic issue, distinct from the concerns of ordinary
people. The bias is there from the
start, and continues throughout the paper.
They continue with a rudimentary, if accurate, summary of the historical
status of sovereignty:
2. Sovereignty was
initially invoked to describe the powers of the ruler within his State.
When dealing with other States the ruler asserted his (internally) sovereign
status, an attribute which, given the identification between the ruler and his
State, attached, also to his State.
Since the other States similarly had sovereign rulers, and regarded
themselves equally as sovereign States, the relationship between such
sovereign States had to be formally one of equality and independence. On the international plane the Sovereignty
of the “sovereign” State is not a truly international sovereignty, but a
transposed internal concept of sovereignty - a description of a legal status
possessed in some other (i.e., the internal) legal order.
In the next paragraph, however, the
authors come to the nub of the matter.
In distinguishing between “internal” and “external” sovereignty, they
note that external sovereignty “has been primarily a negative matter of denying
the existence of an external sovereign
authority”. Under this dictum, the
United Kingdom is legally “independent of all other sovereign states”:
3. Consequently, from the outset the antithesis
between the connotation of “sovereignty” in its internal and external aspects
has been evident. Internal
sovereignty has been primarily a matter of positive possession of ultimate
power in a hierarchically structured internal legal framework, so that interest
has lain in identifying the location of that power within the State; but
external sovereignty has been primarily a negative matter of denying the
existence of an external sovereign
authority, with consequent emphasis on equality and, independence as the legal
framework for international relations.
In the particular instance of the United Kingdom the State, externally,
is legally equal to and independent of all other “sovereign” States; the international
personality is that of the United Kingdom as a State, represented
internationally by the Crown as head of State (a situation accurately reflected
in our internal constitutional law by the Crown’s prerogative in matters of
foreign affairs). Internally, the
sovereign power in the State (at least in matters of legislation) is usually
considered to be located in the Queen in Parliament.
This section then concludes with the helpful
observation that sovereignty “must not be confused with the realities of
power”, something which the occasional Europhile has been wont to do. But the authors clearly put “power” above
sovereignty.
4.
The technical legal aspects of sovereignty, both internal and external
(particularly the latter), must not be confused with the realities of
power. Ultimately it is the latter
which count. There may be a tendency
that, in proportion as the facts about the realities of power are unpalatable,
so emphasis on and interest in the comforting and reassuring legal aspects of
sovereignty increases,
We now come to a long dissertation about
“contemporary aspects of sovereignty”, where the distinction is made between
internal and external aspects of sovereignty in the contemporary political
system.
Sovereignty in external relations
still includes formal equality of status with other states, A striking
expression is in voting arrangements in the UN General Assembly, where, for
example, Mauritius has the same vote as the US (but the realities of power are
reflected by the veto in the Security Council, and by systems of weighted voting in many organisations, not least the
European Communities), it involves also the absence of any formally superior
source of authority external to the State.
It does not mean equal power or influence, or freedom of action in the
international scene, or even within the state itself, though these ideas
naturally spring to mind in the context of sovereignty. To take an extreme example, while the
Central American republics are sovereign states recognised as such by other
states, in practice they are limited by their relations with the US Government,
and perhaps more critically with private US interests, both in their freedom of
international action and in their ability to regulate affairs within their own boundaries. All states are under some degree of external
constraint and most have deliberately limited their freedom of action in
pursuit of national interests, for example by military alliances, entry into
international organisations or even by the conclusion of
routine treaties.
Slowly and insidiously, however, the authors begin to make a case for
the limitations of sovereignty, although the key phrase is “a question of
degree”. At some time, the authors
concede, restraints on the exercise of sovereignty can become so extensive that
a nation ceases to be independent.
These limitations are reinforced by
the increasing interdependence of modern states and the development of economic
and other links which cut across national boundaries. It is therefore generally recognised that sovereign states can
lose some degree of independence of action in external relations without forfeiting
their international legal status. But
it is always a question of degree in each particular ease whether the
restraints are so extensive as to be incompatible with continued existence as
an equal and independent member of the international community, with the
capacity to conduct its own international relations.
Having thus set out the issues,
pains are then taken to diminish the importance of the “sovereignty”
debate. Thus is the issue gradually
circumscribed.
7.
The effect of the above is that, externally, sovereignty is a technical
concept with in many ways only limited bearing on the questions of power and
influence that form the normal preoccupation of foreign policy. As a result,
much of the debate on entry into the Communities in terms of the power and
influence we should gain or lose thereby and on the corresponding effect of
non-entry, while a crucial debate in terms of political decisions and British
interests, is strictly not a debate on the legal issues of external
sovereignty. It is, however, a debate
which arises naturally from that issue and which is tied up with ideas of
sovereignty in the public mind (see paragraph 15(iv) below).
However, in the next paragraph, the authors do
concede that sovereignty and the power of Parliament are inherently bound
together:
8.
Internally within the United Kingdom, the notion of sovereignty is bound
up with the doctrine of Parliamentary Sovereignty, which in turn is the outcome
of the battle between Crown and Parliament as to which should wield supreme
power in the land. The formal
compromise has been to accept that supreme power to legislate should rest with
the Queen in Parliament. For present
day practical and political purposes in the UK, Parliamentary sovereignty may
be taken to involve the exclusive power to make supreme law. This power has three essential features:
(a)
a statute which has been duly enacted by Parliament and received the
Royal assent cannot be declared invalid by the courts on any grounds, for
example that its provisions are contrary to constitutional law or to common
law or to international law;
(b) Parliament may enact any law it wishes;
consequently no Parliament is bound by the acts of its predecessors, and any
prior statute may be amended or repealed later statute;
(c) there is no legislative power in the land
save by the authority of Parliament.
This is followed by a clear statement that the
“Queen in Parliament” has the sovereign lawmaking power in the UK,
To the layman those
features mean that the Queen in Parliament has sovereign lawmaking power in the
territory, unchallenged by any rival national or international source of
authority and that its freedom to enact legislation is in law untrammelled by
acts of its predecessors or otherwise.
The purity of this doctrine is not absolute, particularly as regards the
second feature mentioned. For example,
Parliament has for all practical purposes limited the jurisdiction of its
successors in a geographical sense, by granting independence to colonial and
other territories. It is unthinkable
that Parliament would attempt to repeal an independence act so as forcibly to
regain legislative power over the territory in question.
Then, tucked in at the end of this paragraph,
is the admission that entry to the “Community” involves an unprecedented
transfer of authority from Parliament.
The admission is all the more stark for the fact that it is so effectively
“buried”.
But there has been no comparable (and
irrevocable) transfer of authority within the UK itself purporting to bind
successor Parliaments; and although Parliament has occasionally enacted
legislation which in terms purports to regulate the freedom of action of future
Parliaments, in strictly legal terms such legislation does not prevent future
Parliaments from legislating to the contrary.
Having thus set out their stall, the FCO
authors then go on to consider the specific implications of joining the EEC for
British sovereignty”. They write:
10.. If we have correctly identified the two major aspects of sovereignty,
then we are now in a position to consider how they will be affected by British
accession to the Community. The first
stage is to consider the Community as it will be upon enlargement
putting on one side the prospective implications of any future development or
“deepening” of the Community.
Here comes the rub:
11. Membership of the
Communities will involve us in extensive limitations upon our freedom of
action.
“Our” freedom of action, of course, means the
freedom of Parliament to take action, i.e., a diminution of Parliamentary
sovereignty. But the authors are
careful to sugar the pill:
In many respects these
are essentially the result of a contractual arrangement, not dissimilar in kind
from other international contractual arrangements which we have e.g. in the
GATT: those constitute restraints upon
the exercise of sovereign powers as a result of an act entered into by virtue
of our sovereign status, and they do not amount to a restriction of that
status.
Even then, they cannot conceal the full extent
of the implications of joining the EEC, clearly indicating that the EC treaties
are
not equivalent to other existing treaties:
But it is not correct
to regard the European Community Treaties as involving solely matters of a
legal significance equivalent to that of other existing treaties. For example, in matters within the Community
field (see Annex) we shall be accepting an external legislature which regards
itself as having direct powers of legislating with effect within the United
Kingdom, even in derogation of United Kingdom statutes, and as having in
certain fields exclusive legislative competence, so that our own
legislature has none;
There it is: “we shall be accepting an external
legislature which regards itself as having direct powers of legislating with
effect within the United Kingdom”.
And, if this is not bad enough,
…in matters in which
the Community has already adopted a common policy, we shall be accepting that
the Commission will jointly represent the Member States, who to that extent
will have their individual international negotiating powers limited; and we
shall in various fields be accepting a wide degree of coordination of our
policy with that of the rest of the Community.
All of this we shall be accepting “for an unlimited period”, with no
provision for withdrawal.
Note the use of the anodyne phrasing: “a wide
degree of coordination of our policy”.
Coordination? More honest
phrasing would be “subjugation”. Then
there is the chilling phrase: “…no provision for withdrawal”. Yet, lest any reader now take fright, the
authors are quick to reassure:
But at the same time
France or Italy for example as members of the Communities, have not come to be
regarded internationally as less than sovereign states. This is particularly so since, despite the
appearance of permanence of membership it is commonly recognised that the
member states do still have the ultimate political option of renouncing membership
cannot and that the Community cannot at this stage impose its will against the
firm opposition of a major member.
And still they have not finished:
…In other words in
practice and in the final analysis it remains to date a cooperative venture of
independent equal sovereign units and not some supranational and overriding
authority.
This, even within the limited terms of the FCO
document, is an outright lie. The
authors, having written that “…in matters within the Community field… we shall
be accepting an external legislature which regards itself as having direct
powers of legislating with effect within the United Kingdom”, cannot honestly
conclude that the EEC was “a cooperative venture of independent equal sovereign
units”.
And, to give the lie to their own conclusion,
they continue:
Membership would mean
an increasing range of subjects on which Britain’s policy was concerted with
the remainder of the Community and also that in negotiations with the rest of
the world on matters forming the subject of common Community policies, there
would be joint representation by the Commission. The Community being exclusive in character and membership also
means in practice giving up some of our important links with the remainder of
the world (Commonwealth Preference for example).
Needles to say, however, the weasel words
intrude once again. They add:
But overall it is
clear that membership of the Community in its present form would involve only
limited diminution of external sovereignty in practice.
Carefully do they write. Considering at the time, the EEC was in its
early stages of formation, this claim could just about have been true. But note the all-important qualification “in
its present form”. But, as will be
seen, the authors knew well that the “Community” was a continually developing
entity. However, they chose to argue
from the situation as it was prior to our entry, which allowed the following
words:
If it is right to say
that the question of the retention of the international status of a sovereign
State is a matter of assessing in each case the degree to which a State’s
external independence, equality and capacity to conduct its own international
relations are restricted, we could nevertheless fairly conclude that although
the implications for our freedom of independent action are considerable no
substantial impairment of our international status would follow immediately
upon our membership of the European Communities.
Here, the key phrasing is “no substantial
impairment of our international status would follow immediately upon our
membership of the European Communities”.
But the authors are honest enough then to concede:
The loss of external
sovereignty will however increase as the Community develops, according to the
intention of the preamble to the Treaty of Rome “to establish the foundations
of an even closer union among the European peoples”.
That is the nub of the question: “the loss of
external sovereignty will… increase”.
And, if we take even this document to its logical conclusion, the loss
will continue until sovereignty is no more, although this is not explicitly
stated.
As regards internal sovereignty the FCO authors regard the implications
as “more immediate”. In paragraph 12
(I), they write:
By accepting the Community
Treaties we shall have to adapt the whole range of subsidiary law which has
been made by the Communities. Not only
this but we shall be making provision in advance for the unquestioned direct
application (i.e. without any further participation by Parliament) of Community laws not yet made (even though Ministers
would have a part, through membership of the Council, in the making of some of
these laws). Community law operates
only in the fields covered by the Treaties, viz, customs duties; agriculture;
free movement of labour; services and capital; transport; monopolies and
restrictive practices; state aid for industry; and the regulation of the coal
and steel and nuclear energy industries.
Outside this considerable range there would remain unchanged by far the
greater part of our domestic law (see Annex).
Then they add in (ii):
Community law is
required to take precedence over domestic law: i.e. if a Community law
conflicts with a statute, it is the statute which has to give way. This is something not implied in other
commitments which we have entered into in the past. Previous treaties have imposed on us obligations which have
required us to legislate in order to
fulfill the international obligations set out in the treaty, but any
discrepancy between our legislation and the treaty obligations has been solely
a question of a possible breach of those international obligations the
conflicting statute has still undoubtedly been the law to be applied in this
country. But the community system
requires that such Community Law as applies directly as law in this country
should by virtue of its own legal force as law in this country prevail over
conflicting national legislation.
It could not be spelt out more clearly:
“the community system requires that such Community Law as applies directly as
law in this country should by virtue of its own legal force as law in this
country prevail over conflicting national legislation”. Even then, however, the weasels are at work. They add:
The Law Officers have, however,
concluded that while the European Community will uphold the supremacy of
Community Law in its application within the United Kingdom, our Courts, if
faced with a statute intended by Parliament to override Community Law, are most
unlikely in the immediately foreseeable future to be restrained from giving
effect to the statute.
Once again, however, note the
all-important caveat: “in the immediately foreseeable future”. But, as with Factortame, this was not always
to be. As the FCO was well aware, there
would come a time when British law would be over-ruled. In the next two sub-paragraphs, they make
the situation abundantly clear:
(iii) The power of the European Court to
consider the extent to which a UK statute is compatible with Community Law will
indirectly involve an innovation for us, as the European Court’s decisions will
be binding on our courts which might then have to rule on the validity or
applicability of the United Kingdom statute.
(iv) The Law Officers
have emphasised that in accepting Community Law in this country we shall need
to make it effective as part of a new and separate legal order, distinct from,
but co-existing side by side with, the law of the United Kingdom. They have referred to the basic European
Communities Treaty provisions as amounting “in effect to a new body of ‘Federal’ statute law”.
Having thus dealt with what they describe
as the “technical case”, the FCO authors now deal with “political reality and
popular concern”, in the following terms.
13.
…In lay terms we may say that if Britain joined the Community there
would be many implications for both external and internal (particularly
parliamentary) sovereignty. Some of
these would be wholly novel, and the general effect particularly in the longer
turn would be of more pervasive and wide-ranging change than with any earlier
commitments. Largely this is because
the Community treaties when drawn up were seen as arrangements not merely for
collaboration but for positive integration of large parts of the economic and
social life of the Member States. As a
result the conventional theoretical line dividing internal from external
affairs has become blurred, a process which as we have seen is already
advancing with the development of transnational economic activity.
Note the observation that: “the
Community treaties when drawn up were seen as arrangements not merely for
collaboration but for positive integration of large parts of the economic and
social life of the Member States” and compare and contrast this with the
conclusion expressed in paragraph 11: “…In other words in practice and in the final analysis it remains to date
a cooperative venture of independent equal sovereign units and not some
supranational and overriding authority”.
Venturing into consideration of “public
and political concern over ‘loss of sovereignty’”, the authors then conclude
that this “…cannot be allayed simply by setting out these technical
considerations”. They then observe:
14. …In the public debate advocates of
entry deny that sovereignty will be lost or transferred and argue that account
should be taken “of the effective ability of Britain’s national institutions to
protect and advance the interests, domestic and external, of the British
people”. They imply that sovereignty as
defined above should be disregarded - considering it to have been eroded past
usefulness by GATT, NATO etc and the powerlessness of the medium sized state
acting alone. Although this approach
rides roughshod over “sovereignty” in its technical sense it has the merit that
in addressing the political rather than the legal reality it comes nearer to
the sources of active public concern.
How nice it is of the FCO to agree that this
approach “rides roughshod over ‘sovereignty’ on its technical sense. But implicit in this tranche, and elsewhere,
is the view that the British peoples are actually not really interested in
“sovereignty” in its technical sense.
What they are really concerned with are:
15. (i) National Identity
We are all deeply
conscious through tradition, upbringing and education of the distinctive fact
of being British. Given our island
position and long territorial and national integrity, the traditional relative
freedom from comprehensive foreign, especially European, alliances and
entanglements, this national consciousness may well be stronger than that of
most nations.
When “sovereignty” is called into question in the debate about entry to
the Community, people may feel that it is this “Britishness” that is at
stake. Hence Mr Rippon’s pointed question
“are the French any less French?” for their membership. There is another, less attractive, aspect of
this national pride. This is the large
measure of dislike and mistrust of foreigners that persists in Britain. Nancy Mitford’s Uncle Matthew was not alone
in considering that: “Abroad is hell and foreigners are fiends”.
(ii) Change
However it is
presented, entry to the Community will mean major change. It is natural and inevitable that this
should he disliked and resisted by many.
Even though the “loss of sovereignty” may be limited to fairly precise
areas of Government and Parliamentary powers and be without significance for
the lives of most of the country, still the phrase conjures up a spectre of
major and uncontrollable change and of adjustments that will have to be made
which are deeply disturbing. “Loss of
Sovereignty” may be a euphemism for fear of’ change and of the unknown.
(iii) Remoteness of the Bureaucracy
It is generally acknowledged that in modern industrialised society the
impersonal and remote workings of the Government bureaucracy are sources of
major anxiety and mistrust. The
operations of democracy seem decreasingly fitted to control the all-embracing
regulatory activities of the Civil Service.
In entry to the Community we may seem to be opting for a system in which
bureaucracy will be more remote (as well as largely foreign) and will
operate in ways many of which are already determined and which are deeply strange
to us. This bureaucracy is by common
consent more powerful than compared with the democratic systems of the
Community than is ideal. Yet the way to
remedy this balance without reducing the Community to a mere standing
association for negotiation between national Ministers is by strengthening the
Community’s democratic processes which in turn means more change and
more “loss of sovereignty”.
(iv) National Power
As explained in paragraph 6 above,
questions of power and influence have a close popular connection with ideas of
sovereignty. The British have long been
accustomed to the belief that we play a major part in ordering the affairs of
the world and that in ordering our own affairs we are beholden to none. Much of
this is mere illusion. As a middle power we can proceed only by treaty,
alliance and compromise. So we are dependent on others both for the effective
defence of the United Kingdom and also for the commercial and international
financial conditions which govern our own economy. But this fact though
intellectually conceded, is not widely or deeply understood; instinctive
attitudes derive from a period of greater British power. Joining the Community does strike at these
attitudes: it is a further large step away from what is thought to be
unfettered national freedom and a public acknowledgement of our reduced
national power; moreover, joining the Community institutionalises in a single,
permanent coalition the necessary process of accommodation and alliance over
large areas of policy, domestic as well as external. Even though these areas may be less immediately relevant to
survival than defence, as covered by NATO, the form of the Community structure
and the intentions explicit in the preamble to the Treaty of Rome emphasise the
merging of national interests.
What clearly emerges from this is
the patronising attitude of the writers.
The “mere” public is actually not able to consider “technical” issues
and is really against joining the EEC because “Abroad is hell and foreigners
are fiends”.
But particularly perspicacious is
the view on “bureaucracy”, the writers observing: “This bureaucracy is by
common consent more powerful than compared with the democratic systems
of the Community than is ideal. Yet the
way to remedy this balance without reducing the Community to a mere standing
association for negotiation between national Ministers is by strengthening the
Community’s democratic processes which in turn means more change and
more ‘loss of sovereignty’”.
It acknowledges three things: (i) that the EEC
is an inherently bureaucratic organisation and, by implication, is not
democratic; (ii) that it is not “an association for negotiation” and therefore
is not a “cooperative venture of independent equal sovereign units”; and (iii)
involves a loss of sovereignty, which will intensify as attempts are made to
make democratise the “Community”.
Undismayed, the authors continue:
16. We do not suggest that these issues of
public concern have any necessary connection with the technical meaning of
sovereignty, but the debate hitherto has been conducted on two levels. On the
one level there have been legal arguments defining the implications for
external and Parliamentary Sovereignty of accession, implications which are
important but have been found politically acceptable. On the other level we believe that argument about loss of
sovereignty couched in more general terms has elicited a strong response
because of the anxieties about national identity, power and change outlined
above.
What is chilling here is another acknowledgement, that the implications
for sovereignty “have been found politically acceptable”. Were we told this? I think not.
With that, however, the authors change tack, to deal with the future
development of the Community. They
write:
17. The account presented of the implications
for sovereignty of membership has up to this point dealt with the Community as
a static institution. Its effective
role now centres upon, though it is not limited to, the Common Agricultural
Policy and the Common Commercial Policy based on but now going beyond the
Common External Tariff. The Council of
Ministers continues to be dominated by tradeoffs between national interests
and the principle of majority voting has been side-tracked. The European Parliament exercises little
control over the processes of the Community while the Commission though
committed to the “deepening” of the Community is hamstrung by the difficulty of
reaching agreement on major policy in the Council of Ministers
They then conclude:
18. That the Community within its
present limitations should present little challenge to national sovereignty is
perhaps inevitable;
This is fair enough, but now the real agenda is laid bare. This is not a Common Market. The authors write:
…but it will be in the British
interest after accession to encourage the development of the Community toward
an effectively harmonised economic, fiscal and monetary system and a fairly
closely coordinated and consistent foreign and defence policy. This sort of grouping would bring major
politico/economic advantages but would take many years to develop and to win
political acceptance. If it came to do
so then essential aspects of sovereignty both internal and external would
indeed increasingly be transferred to the Community itself.
Here it is naked in tooth and claw – the
prospectus for political integration, including a single currency a common
foreign and defence policy. It “may
take years to develop and will political acceptance”, the FCO opines, and
sovereignty “…would inded be transferred to the Community”.
“If such a development took place”, they write:
19. …then over a wide range of
subjects (trade, aid, monetary affairs and most technological questions)
Community policies toward the outside world would be common or closely
harmonised. Although diplomatic
representation would remain country by country its national role would be much
diminished since the instructions to representatives would have been coordinated
among member states. By the end of the
century with effective defence and political harmonisation the erosion of the
international role of the member states could be almost complete. This is a far distant prospect; but as
members of the Community our major interests may lie in its progressive
development since it is only when the Western Europe of which we shall be a
part can realise its full potential as a political as well as economic unit
that we shall derive full benefits from membership.
The conclusion,
unwritten, is self-evident. The FCO is
entirely at ease with the “far distant prospect” that we should lose our
sovereignty since it is only then “that we shall derive full benefits from
membership”. Their only problem is that
this “far distant” prospect is now upon us and is far from gaining political
acceptance.
It is a measure of the FCO, however,
that its authors write: “Such positive development…”. In that single phrase is their ambition revealed. The continue…
20. …of the functions of the
Community could probably only take place with concomitant development of the
institutions of the Community. It is
hard to envisage the necessary decisions being taken under the present
organisation of the Community; more effective decision-making at Community
level would either require majority voting on an increasing range of issues in
the Council or stronger pressures to reach quick decisions by consensus. In either case the role of the Commission
would become more important as the Community became responsible for the
regulation of wider areas of the internal affairs of the member states and this
would in turn increase the need to strengthen the democratic institutions of
the Community, including perhaps a directly elected Parliament. In that event the development of a
prestigious and effective directly elected Community Parliament would clearly
mean the consequential weakening of the British Parliament as well as the
erosion of “parliamentary sovereignty”.
Here, qualified majority voting is predicted, with a directly elected
European (Union) Parliament, both of which developments would mean “the
weakening of the British Parliament” and “the erosion of parliamentary
sovereignty”. The FCO knew exactly what
it was doing, and exactly what to expect.
And, with more chilling prescience, they observe:
21.
The process outlined is an exceedingly long-term one, and depends upon
the continuing progressive development of the Community. For a very long time - almost certainly
until the end of the century - the major member states would retain the
practical “last resort” political possibility of succession (albeit in probable
breach of international obligations and with increasingly damaging economic consequences
for the defector). So long as the
member state’s participation is subject to national scrutiny and can in
practice be withdrawn, it may be said that the nation’s status as an equal and
independent state in the international community will be unaffected. Parliament’s power will likewise survive; if
Britain can in practice renounce the Treaty then the Community laws which are
applied automatically within the member states are seen to depend upon the
continuing (and pre-eminent) acquiescence of Parliament which may in the last
resort be withdrawn.
adding…
22.
Even with the most dramatic development of the Community the major
member states can hardly lose the “last resort” ability to withdraw in much
less than three decades. The
Community’s development could produce before then a period in which the
political practicability of withdrawal was doubtful. If the point should ever be reached at which inability to
renounce the Treaty (and with it the degeneration of the national institutions
which could opt for such a policy) was clear, then sovereignty, external,
parliamentary and practical would indeed be diminished.
…sovereignty, external, parliamentary and
practical would indeed be diminished.
What more needs to be said, other than we are now at the end of the
century?
All that is left is for the authors are their
“conclusions and implications”. Here
they write:
23. We have examined the two main aspects of
sovereignty: external and parliamentary sovereignty will be limited, while in
the case of parliamentary sovereignty it will be real and novel but not likely
to damage British interests. There are in
addition major aspects of public concern which are evoked by reference to
sovereignty though that is not what they are about - national identity,
opposition to change, mistrust of bureaucracy and a belief that Britain
standing alone should control its destiny.
These may be at the source of much anxiety about and instinctive
opposition to British entry. Finally
we have argued that in the longest term the progressive development of the
Community could indeed mean the weakening of the member states’ independence of
action and in the last resort of their national institutions and their
sovereignty.
There it is again: “…in the longest term the
progressive development of the Community could indeed mean the weakening of the
member states’ independence of action and in the last resort of their national
institutions and their sovereignty”.
Remember, that “longest term” is the end of the century.
From there, the FCO authors then identify a
number of “implications to be drawn from this analysis”:
24. (i) although
public concern is not over technical sovereignty itself but over more generally
national traditions it is real and important and can be evoked by reference to
sovereignty. Before entry it is
important to deal squarely with the anxieties about British power and influence
(masquerading under the term sovereignty) by presenting the choice between the
effect of entry and on Britain’s power and influence in a rapidly changing
world.
Interestingly, without adducing any
evidence whatsoever, apart from their own opinions, the writers thus decide that
the way to handle the entry concerns is to deal with the “anxieties” which they
themselves have defined. Note also the
pejorative, patronising use of the word “anxieties”. People do not have “concerns”, valid or otherwise – they have
“anxieties”, as if they are little children who need soothing. And those “anxieties” concerning sovereignty
and not actually genuine. They are a
“masquerade”, with the real agenda “loss of power and influence”. Thus concerns about sovereignty are not to
be addressed. We are to be offered
eulogies about how Britain’s “power and influence” are to be improved if we
enter the (then) Common Market.
Then, the deception continues:
After entry there would be a major responsibility on HMG and on all political
parties not to exacerbate public concern by attributing unpopular measures or
unfavourable economic developments to the remote and unmanageable workings of
the Community. This counsel of
perfection may be the more difficult to achieve because these same unpopular
measures may sometimes be made more acceptable if they are put in a Community
context, and this technique may offer a way to avoid the more sterile forms of
inter-governmental bargaining. But the
difference between on the one hand explaining policy in terms of general and
Community-wide interest and, on the other, blaming membership for national
problems is real and important.
In the age of “spin doctors” we are perhaps
used to the cynical manipulation of news, but here is its genesis – an active,
deliberate encouragement to conceal the bad news. The authors are aware that some of the Community activities may
be unpopular, but they are to be “spun” in a Community context to make them
more acceptable. Nevertheless, it is
not all plain sailing:
(ii) the transfer of
major executive responsibilities to the bureaucratic Commission in Brussels
will exacerbate popular feeling of alienation from government. To counter this feeling, strengthened local
and regional democratic processes within the member states and effective
Community regional economic and social policies will be essential.
How true
this first observation has proved to be.
And now is revealed the British “take” on the regionalisation
process. Anticipating the destruction
of national democracy, the authors propose to supplement it with “strengthened
local and regional democratic processes”, bolstered by “effective regional
economic and social policies”.
And, with Parliament having thus been rendered
obsolete, these civil servants have their own recipe for the deployment of
redundant MPs:
(iii) Parliamentary
sovereignty will be affected as we have seen.
But the need for Parliament to play an increasing (if perhaps more
specialised) role may develop. Firstly,
although a European Parliament might in the longest term become an effective,
directly elected democratic check upon the bureaucracy, this will not be for a
long time, and certainly not in the decade to come. In the interval, to minimise the loss of democratic control it
will be important that the British Parliamentarians should play an effective
role both through the British membership in the European Parliament and through
the processes of the British Parliament itself. Few if any of the Parliaments of the Six make the most of their
role in either respect. It would be
clearly in the interest of the UK that British parliamentarians should acquire
a position of influence in the European Parliament against the day when it
assumes effective powers.
Some lip-service is paid to the scrutinising role
of Parliament:
(iv) The process of
consultation between the Commission, Government experts and the European
Parliament is complex. The issues dealt with are neither “foreign affairs” nor
wholly domestic to the member states.
The form of the consultations is such that they can hardly be watched
over by the House of Commons as a whole - despite the flexibility of Question
Time. The result in the present member
states is that Community affairs are largely the prerogative of the executive
to be endorsed after the event by the elected representative body as
though in foreign affairs. To meet this new problem the creation of a Select
Committee on Community Affairs or some quite new parliamentary device might be
considered.
…but it really is a waste of time.
(v) It will be recognised that the more the
Community considered is developed as an effective wide-ranging and
democratically controlled organisation the more Parliamentary sovereignty will
be eroded and the less important external
state sovereignty will become. The ability and the ultimate political right in
the last resort to withdraw will remain for a very considerable time though it
may come to have mainly theoretical significance. In that last resort the ultimate sovereignty of the State will surely
remain unchallenged for this century at least. Meanwhile it will continue to be
important to stress the potential gains in real international influence (albeit
indirect) through participation in the Community’s policies and to contrast
this with the highly formal and technical nature of the “sovereignty” that will
be eroded.
Parliamentary sovereignty is steadily eroded,
until it comes to have “mainly theoretic significance”, while the “potential
gains” of community membership are stressed, in order to suppress our
anxieties.
25. The conclusions and implications we have
drawn are highly political and may be judged beyond the competence of the FCO
to advise. Nevertheless the impact of
entry upon sovereignty is closely related to the blurring of distinctions
between domestic political and foreign affairs, to the relatively greater
political responsibility of the bureaucracy of the Community and the lack of
effective democratic control.
And there we
have it, the take-over by the civil servants, as they assume “relatively
greater political responsibility”. And
thus is their role ordained:
26.
To play an effective part in the Community, British Members of the Commission
and their staffs and British officials as negotiators will necessarily assume
more political roles than is traditional in the UK. The Community, if we are to benefit to the full, will develop
wider powers and coordinate and manage policy over wider areas of public
business.
While other measures are foreseen to
eliminate the vestigial influence of the national Parliament:
To
control and supervise this process it will be necessary to strengthen the
democratic organisation of the Community with consequent decline of the primacy
and prestige of the national parliaments.
Finally, and chillingly, these civil
servants applaud the process. They know
what they have to do:
The
task will not be to arrest this process, since to do so would be to put
considerations of formal sovereignty before effective influence and power, but
to adapt institutions and policies both in the UK and in Brussels to meet and
reduce the real and substantial public anxieties over national identity and
alienation from government, fear of change and loss of control over their fate
which are aroused by talk of the “loss of sovereignty”.
And to think we were told by the
Heath government that entry to the “Common Market” would involve “no essential
loss of sovereignty”. Liars they are
all.
ANNEX
AREAS OF POLICY IN WHICH
PARLIAMENTARY FREEDOM TO LEGISLATE WILL BE AFFECTED BY ENTRY INTO THE EUROPEAN
COMMUNITIES.
1. In general it should he noted that there are
very few if any areas in which Parliament will be wholly incapable of
action or in which Parliament will be wholly free from restraint. It should also be noted that the boundaries
which distinguish these areas are changing all the time, as Community policies
develop.
2. Much depends upon the way in which the
Community has taken action in any particular area. In the case of action by way of Regulation there is, once the
Regulation has been made, no room for Parliamentary action (other than,
possibly, to supplement the Regulation or mere debate). Generally speaking Parliament must take the
Regulation as it stands, and while with Regulations made by the Council, a
United Kingdom Minister (who is
subject of course to Parliamentary pressure) will take part in the proceedings
leading up to adoption of this Regulation, this is not the case with
Regulations made by the Commission.
Regulations made by the Commission are however essentially of an
implementing rather than policy-making nature.
Community action by way of a Directive leaves Parliament freedom of
choice as to means but no freedom as to the result to be achieved. A Recommendation leaves Parliament
free to decide not only on the means, but also upon whether to comply with the
Recommendation at all.
3. Given these major
qualifications the lists below, which are by no means exhaustive, identify the
areas of legislative action which will be principally affected and those which
will not.
Customs duties and all
other matters incidental to the formation of a customs union;
Agriculture;
Free movement of labour, services
and capital;
Transport;
Monopolies and
restrictive practices;
State aid for
Industry;
Coal and Steel;
Nuclear energy
industry;
Company Law;
Insurance Law;
Value added tax;
Social Security for
migrant workers.
AREAS IN WHICH
PARLIAMENT’S FREEDOM OF LEGISLATIVE ACTION WILL NOT BE SIGNIFICANTLY RESTRAINED
The general principles
of criminal law;
The general principles
of’ the law of the contract;
The general principles
of the law of civil wrongs (tort);
Land Law;
Relations of landlord
and tenant;
Housing and town and
country planning law;
Matrimonial and family
law;
The law of
inheritance;
Nationality Law;
Trusts;
Social services (other
than for migrant workers);
Education;
Health;
Local government;
Rates of Direct
Taxation
FURTHER IMPORTANT
AREAS IN WHICH MEMBERSHIP OF THE COMMUNITY MIGHT AFFECT HER MAJESTY’ S
GOVERNMENT’S FREEDOM OF ACTION
In addition to the
areas listed above, there are a number of important areas in which membership
of the Community would impose obligations vis-a-vis the Commission or other
Member States. These obligations which will restrain our freedom of action in
areas hitherto within the discretion of the Executive may be divided into two
classes: (a) present obligations to consult; (b) future obligations to consult,
or to coordinate policies.
2. Present obligations to consult include:
(i) Economic Policy: Articles 103-9 of the Treaty of Rome enjoin
a wide measure of consultation and coordination on policy on current
trends on balance of payments problems.
On exchange rates each member State is required under the Treaty
“to treat its policy... as a matter of common interest”. In practice the main common interest has
been the need to allow the CAP to work smoothly; but this has not prevented
member states changing parity sometimes with, sometimes without, much
consultation.
On balance of payments difficulties member states are allowed
(under the Treaty) to pursue policies necessary to preserve or restore
equilibrium, preferably with consultation beforehand. The Commission is
empowered to investigate and to make recommendations but national freedom is
not significantly restrained at this stage.
(ii) Foreign Policy. The Davignon report (1970) provided for
six-monthly meetings of Foreign Ministers and quarterly meetings of Political
Directors to coordinate foreign policies and Governments should consult on all
important questions. Two such meetings
of Foreign Ministers have so far occurred.
But no effective restraint exists upon national responsibility for
foreign policy as such, and the obligations go no further than those we already
have under WEU.
3.
Future obligations, where we as members would of course have a full and
equal voice in the creation of the detailed policy, include
(a) Economic and
Monetary Union
The Council of Ministers adopted a programme of action on 9 February
1971 aimed at establishing economic and monetary union of the Six (and by
implication of an enlarged Community of Ten) in ten years. Only the first stage is agreed: Central
Banks are to coordinate their monetary policies; the Commission and member governments
are to consult three times a year with a view to coordinating their economic
policies and are to produce a joint annual report on short-term economic
policy; arrangements were to be instituted for a first step in narrowing the
margins of fluctuation of members’ currencies against each other. These measures are to remain in force for
five years and then lapse if agreement has not then been reached on the second
stage, which ought to begin on 1 January 1974.
Although the arrangements for narrowing the exchange margins have been
postponed by the May currency crisis and the German Government’s decision to
float the D-mark, it is likely that on entry the UK will have to adhere to the
agreement summarised above, assuming that current difficulties in implementing
these agreements have been overcome by the time we join. We shall of course take part as full members
in the discussions which must precede any move to the second stage.
(b) General provisions for harmonisation of
legal practices
There are two relevant general provisions. Article
100 of the Rome Treaty, on the Approximation of Laws and article 220 on the
negotiation of mutually beneficial agreements which could in theory both lead
to encroachment in the future on areas where our freedom to decide on policy is
not now significantly restrained. A
large number of miscellaneous regulations of little political significance have
already been made under Article 100.
They are designed to facilitate intra-Community trade by the
establishment of uniform standards and practices. After entry we should of course have a full say in the scope and
application of future work in this field.
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