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Heath's EEC Deception - Page 3
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 F&CO 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 F&CO 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 F&CO 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 F&CO 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”.