James McConalogue: Governed by Europe - Why Can’t Britain Remove Burdens from Brussels?

James McConalogue is Editor of The European Journal. He manages the European Foundation, chaired by Bill Cash MP.  The Foundation proposes the renegotiation of all existing and forthcoming EU treaties. Holding to its original raison d’être – of “yes to European trade, no to European government” – the European Foundation does not advocate withdrawal from the European Union, rather its thoroughgoing reform.

It appears to be a bad day for British sovereignty when its own national parliament – after tabling Amendments, criticisms and Clauses for proposed Bills – has already decided on the submission of national sovereignty to foreign powers and proceeds with Amendments as a process of mere formality. Furthermore, that has been the disheartening predicament for parliamentary critics of EU integration within the House of Commons and Lords during the pro-European governments of the past thirty years. There has always been a healthy public opposition to further EU integration within Britain but without listening to the true Eurorealist voices today and, in my view, without empowering a Conservative Party able to confidently defend the authority of the British legislature the future of a national Parliament is bleak.

Take, for example, the concerns of deregulation and economic competitiveness in Britain. The current Labour government had hastily pushed the Legislative and Regulatory Reform Bill through Parliament since early 2006. The Bill, it was claimed, would reduce the burdens on business through deregulation of burdensome legislation originating from Westminster – and thereby, create the conditions for increased competitiveness. It did not take long for Conservative critics of the Bill to realise some fundamental flaws within the text. Yes, deregulation is necessary to increase economic competitiveness but the deregulation of what and by whom? If those concerns are not considered, then we are deregulating industry from no particular legislation for no particular reason and by the hands of those who have no idea of where the legislation stems from. In truth, it stems from Europe, not Westminster.

Thus, when Bill Cash, MP for Stone, attempted to propose a sound new Amendment and Clause – Clause 17, to be precise – providing a mechanism for not only the deregulation of domestic legislation but to enable the repeal or amendment of European legislation where attempted national renegotiation had failed, it was immediately cleared by parliamentary counsel. Furthermore, it was endorsed by the Conservative Party, whipping it in both the House of Commons and House of Lords. In short, Bill Cash and colleagues felt it significant that since deregulation should consider European legislation as much (if not more) than UK-derived legislation, there should be a clause to maintain deregulation through upholding Westminster parliamentary supremacy over the European Communities Act 1972. This would ensure that burdensome regulation stemming from the EU should be renegotiated to ensure compliance with Westminster legislation. The government majority dismissed the Clause and proceeded with Royal Assent, so that the Act now only caters for a reduction of burdens stemming mostly from national laws. It rejected the Clause on the basis that laws passed in accordance with European law are, in fact, superior to United Kingdom law. However, since at least 65% of our legislation now originates from the EU, the passing of the Bill has been a pointless task, ensuring nothing more than continued legal supremacy of Europe and further binding regulations for British business (not less!).

As one supporter, John Redwood (MP for Wokingham), attempted to justify Clause 17 – “so much of our regulation comes from Brussels that we cannot exempt from scrutiny and from our deregulatory urge. New Clause 17 makes a good attempt to draw the House’s attention to that and to make Ministers understand that they cannot have a deregulation policy worth anything unless they are prepared to tackle quite a number of the regulatory burdens coming from Brussels.”*   Bill Cash was no less forthright in his defence of the Clause that the debate on the entire Act was really concerned with the degradation of the British parliamentary sovereignty. Of course, the principle had not – as Cash reminded the House of Commons – been removed or altered since the achievement of the legislative supremacy of Parliament in 1688 and the establishment of the Bill of Rights upholding the rule of Parliament (and not monarchy). On the whole, the peoples of Britain have taken great exception to being ruled by foreign Kings, political bodies and authorities and the European Union is no different.

Yet, given that Bill Cash is no stranger to opposing the continual surrender of parliamentary powers to Europe – note his leading opposition to the Maastricht, Amsterdam and Nice Treaties – it may be of some relief to find that many of his Conservative predecessors in fact suffered a similar fate in Parliament, but to the great benefit of an enlightened public who have since discovered that integration is a threat (not an alliance) to parliamentary sovereignty and a competitive economy. Recall, for example, the work of Enoch Powell MP during the preparation of the European Communities Bill in 1972.   

At the time, when the European Communities Bill came before Parliament at committee stage in 1972, Powell fell increasingly to despair at the inability of realistic interventions to be debated and the apparent suppression of Amendments by the Whips. So Powell heavily criticised the established pro-European status quo in government – Heath’s party backed by Labour Europhiles – and is said to have made fifty public speeches in the first three months of 1972. Against the parliamentary consensus, Powell was amazed to find that nothing could be done to defend the sovereignty of the Houses, since nothing could be changed in the previous multilaterally agreed Treaty of Accession. Their hands were tied. And what’s more, its Members did not seem to care: “With breathtaking effrontery the sovereign legislature of this country is informed that it will not be allowed to debate anything but the details … of the surrender of its own powers: the big matters, it is told, cannot be altered and therefore cannot be discussed. Why? Because they say it is all in the treaty which has been signed; and the treaty cannot be altered, and you knew all about it in advance. Every one of these assertions is false. It is an impossible affront to the House of Commons, and through the House of Commons to the electorate, to be told, in the very moment when it is being invited to legislate its own sovereignty away, that it has already lost that sovereignty without so much as a by-your-leave and has no alternative but to accompany its captors in handcuffs and fetters.”**

Nonetheless, with only the endorsement of the Conservative Party and a lack of national interest from Labour or the Lib Dems, the Legislative and Regulatory Reform Act 2006 (LRRA) came into force on 8 January 2007. It entitles a Minister to make an order in primary legislation so as to remove or reduce burdens and also enable them to ensure that regulations must be transparent, accountable, proportionate, consistent and target-specific. Of course, that is what the Cabinet Office advises.  It makes no mention of the supremacy of Europe and the degradation of the national Parliament – a parliament which, I am told, still stands in Westminster as a representative body for the interests of the British people.

* Parliamentary speeches on 15 May 2006 by Bill Cash and John Redwood. See online at: http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060515/debtext/60515-0072.htm
** Simon Heffer (1998). Like the Roman: the Life of Enoch Powell. London: Phoenix. p.623.