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7th October, 2017
Heath's EEC Deception - Page 2
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 withintheir 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.
And 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 F&CO authors then go on to consider the specific implications of joining the EEC for British sovereignty. “If we have correctly identified the two major aspects of sovereignty”, they write:
10. …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.
And 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, however, 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 state.