Review of Vernon Bogdanor: Beyond Brexit
Vernon Bogdanor excels in his analysis of the UK Constitution. He draws incisive conclusions about the major changes of the Constitution that have arisen from more than four decades of membership to the European Communities. He traces the change of model from UK’s unwritten constitution where Parliament ruled to the slow but sure movement where European “officials” in the Commission apparently pre-empt all.
As he wrote, and it is more apparent after he wrote, the Referendum, as an instrument of governance, has become the predominant factor in Britain’s Constitution.
The Referendum represents the most important challenge not only to UK because of Brexit, but because, by the disrespect of the referendum by Brussels as the primary instrument of democracy, Europe is entering a prolonged crisis which will overturn decades-long corrupt policy by politicians.
Historically Britain did have a written constitution briefly under Oliver Cromwell. Before that, before the Anglo-Saxons arrived, and indeed the Romans, ancient Britons were governed by wise principles called the State Triads, the basis for our present Common Law. One of these defines the three governance principles:
firstly, a referendum of all the people,
secondly a parliament of 300, and
thirdly a court where jurors or elders vote under its protection and privileges.
These ‘Laws of Wales’ were confirmed in the Magna Carta 1215.
The Referendum is now coming back to first place. It has changed how Britons think about their Constitution.
Bogdanor does not dig so far back into history. But he is clear and detailed on the recent developments. He is right to draw attention to the fact that the original institution was the European Coal and Steel Community 1951 and not the “Common Market” 1957. His analysis of the supremacy of European law and the British lack of understanding of it is well worth a read.
The Continentals, however, have also failed to warn of the drift and resist the negative changes for all European citizens: the Democratic Deficit.
This is not something inherent in the Community system. In fact it was conceived as the most democratic system ever.
The two areas where his analysis is weak are the nature of European Democracy (as originally conceived and why it is ‘chloroformed’ under France’s autocratic president Charles de Gaulle) and the major change in the British constitution now that the Referendum is main instrument that outclasses even parliamentary decision-making. A more subtle and perhaps more important point is how to stop politicians cheating when a referendum is declared. This can be done when referendums do not have an adequate legal framework, for example, where the framework itself violates human rights.
Democracy is based on Human Rights
After the bloodiest of world wars and threatened by Soviet expansionism, the democrats who agreed on the Community idea, obviously wanted a democracy that would help west European democracies help themselves. They wanted to build together a better, freer world. The first step was the creation of a minimum standard for a country to be considered democratic. This was formulated in the Convention of Human Rights and Fundamental Freedoms of the guardian organisation, the Council of Europe.
This body and this entrance ticket may be considered the Bill of Rights and its guarantor for the future safety of Europeans and their States.
All subsequent treaties such as the European Communities had to be examined for human rights adherence and agreed by this body. And so they were.
What happened? Western Europe experienced an economic miracle for three decades that were unprecedented in its previous history. But in the 1980s it ran out of steam. Europe’s democratic engine is based on a ratchet system: it can go forward but not back. But for a while it can be blocked from advancing.
Europe gained its first Single Markets in 1953. De Gaulle stopped the advancement to what had initially been agreed: a transparent, open Council of Ministers and elections to European bodies. After de Gaulle’s departure in 1969 was when the reform to the high standards of Schuman democracy should have been made.
Alas, politicians, Continental and British, Irish and Scandinavian, preferred the neo-Gaullist system. European elections to the Parliament should be based on a single statute and one election, not 28 national elections that are easily manipulated. The closed-door Councils of Ministers remained. Politicians could thus abrogate to themselves excessive powers without public supervision.
The inevitable crisis
Today we are entering Crisisland: Brexit comes after barely surviving Greece’s Grexit and the continuing euro crisis.
Is the original democratic vision broken? Democracy needs the rule of law to sustain it. Law needs democratic glue to make it viable long-term.
Robert Schuman, the French Statesman who originated the Community method, created a new system to provide a partial (step-by-step) democracy in sectors to link and pacify ancient States and peoples, continually at war amongst themselves.
As Bogdanor says in his Gresham Lectures, Schuman initiated a ‘scientific experiment’ in democracy (speech at Strasbourg, May 1949). Schuman also said that democracy cannot be improvised. Progress is not automatic, nor, because of human nature, always in the right direction.
This is where Bogdanor could have applied more of his analytical skills. After the war, the Community experiment was based on solid principles of good governance. The first document signed by the founding States in 1951 was buried by Gaullists in French archives. It was not republished again for fifty years. It is what Schuman called the Charter of the Community.
It is simpler than Magna Carta. It has one key right, the right of people to freely choose their destiny. True democracy contrasted with the Soviet system where the people could only vote for the Party and party dictatorship of the proletariat.
Democracy goes hand in hand with the first institution of modern Europe. That was not the EU or the Community but the Council of Europe, formed in Strasbourg in 1949. Its Rules of Membership – the Convention of Human Rights and Fundamental Freedoms – defined European values, Magna Carta rights on a broad European scale.
States and free populations that recognise these values of a free society are those that can call themselves European with freedom of thought, assembly, the press, presumed innocence in Court, and so on.
The Convention of Human Rights and Fundamental Freedoms now defines Europe more than geography.
Where did Europe and UK go wrong?
All the early treaties, 1951-57, were discussed at length in the Assembly of the Council of Europe to ensure they complied with human rights.
1950 European Coal and Steel Community, ECSC,
1953 European Defence Community, EDC
1953 European Political Community, EPC
1957 European Atomic Energy Community, Euratom,
1957 European Economic Community, EEC: Spaak Report.
By the time UK joined NONE of the later ones were.
The Community was considered a guardian of fundamental rights because it was within the Council of Europe system. For example, Article 3 of the EDC specifies the fundamental rights of the individual and rights of States.
1957-69 De Gaulle seizes power in France, stops elections.
1973 UK joined 3 Communities, ECSC, EEC (Common Market) and Euratom. But no elections to European Parliament and Consultative Committees took place.
1986 Mrs Thatcher agreed to reinforcing the Single Market in the Single European Act (SEA). But the politicians added more institutions. They were unpopular and few citizens agreed to them. This constitution-changing operation was mounted against British, Danish and Greek objections, only one referendum (in Ireland). Only nine of the 12 Member States signed the SEA initially in February 1986.
The politicians, meeting in the still closed-door Council of Ministers, created these new institutions for internal and external affairs and a hierarchical control by a European Council of heads of Government, after the pattern of de Gaulle’s system.
Constitutional change requires affirmation in referendums. In the UK, where some saw to where such constitutional change without popular authorisation could lead, a Referendum Party was formed with the aim of correcting government policy to the innovations without popular legitimacy.
The first cheat was to call the SEA a revision and not a treaty. The second cheat was not to have it analysed for Human Rights abuse by the Council of Europe. By this time the Council of Europe, side-lined by de Gaulle in 1957, was not allowed to interfere in the process or to pronounce on the diminishing human rights of these political operations.
Human Rights by Force
The Community system had no institution called the European Council of Heads of State and Government. There was good reason. All European politics should be conducted in the Council of Europe and in Community bodies in open session.
The ‘Summit’ was an invention of Charles de Gaulle. He was the only Head of State allowed.
It provides fertile soil for an oligarchic control of European affairs without public supervision. In the Community system it was not even an institution, never mind a body with legal personality.
In the European Council, Heads of government could now meet in secret. Heads of government could decide what to do for their own advantage. They also had national majorities to pass them or force them through their parliaments. Later Treaties (Maastricht, Amsterdam, Nice, Constitutional and Lisbon) were forced through parliaments in rapid succession.
Once they leaders were agreed it was easy. All government parties with their parliamentary majorities did not have to take minority or popular voices into account. Some treaties were passed in spite of referendums blackballing them. Human rights? Forget it!
No Human Rights ‘interference’ was allowed from the Council of Europe. A substitute for proper Human Rights was penned, called the Charter of Fundamental Rights. Another fraud as it confused ideology with natural law rights.
It was forced through parliaments, in spite of its having been rejected in several referendums!!
Some Human Rights!
Impact of Human Rights
So what would happen if real Human Rights were restored and enforced in the Strasbourg Court? Sections of the present treaties would be resiled. What is the most significant section today?
The Lisbon Treaty was rejected by three States—France and the Netherlands when it was called the Constitutional treaty, and once by Ireland when it was called the Lisbon treaty.
Given a chance, UK voters would have rejected it with a large majority according to all observers. They were not given a chance. Politicians in UK and several other countries withdrew their already announced referendums.
The Lisbon Treaty does not pass the Council of Europe test. Nor does it pass the referendum test of popular support for a constitutional change.
What would happen if the Lisbon Treaty were no longer valid?
Well, for a start, there would be no Article 50. And no valid referendum of 23 June 2016. The people would have a choice of treaty. It is clear that across Europe, Lisbon treaty was unacceptable because referendums were banned. The only State, Ireland, that voted on it, voted against it. And then, under financial duress, Brussels politicians told the Irish to vote again!
A written Constitution for the UK?
Bogdanor concludes that UK is heading for a written Constitution. Scotland, Northern Ireland and Wales have such documents. These have been granted by the central Parliament in Westminster after referendums.
UK still has European Human Rights law that overrides even parliamentary Acts. So Westminster needs constitutional certainty.
Not so fast.
Much must be clarified first, primarily the voice of the people. This is the fundament of fundamentals. Neglected too long, the referendum is the most powerful, legitimising constitutional institution (with two others acting as helpers, parliament and the courts). Parliament is no longer seen as the main constitutional body that nothing can bind. The Supreme Court judgement in the Miller prorogation case shows that Government in Parliament is subject to judicial review and its decisions can be reversed and declared null and void.
(T)he Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.
Back to Constitutional Basics
Democracies are States or entities of the people ruled by the people for the people. Not closed-door oligarchies.
While no one doubts the legitimacy of the 1975 European Community referendum with its decisive result, the same cannot be said for David Cameron’s 23 June 2016 Article 50 referendum.
Why? The legal framework is missing. The May government said it was basing its exit letter on Article 50 of the Lisbon Treaty. The 1975 vote did not base itself on a treaty but the free vote of the people.
The legality of the Lisbon Treaty is quite dubious. It is a palpable fraud. Both Labour and Conservatives promised a referendum on the Lisbon Treaty. None came.
In reality referendums in France and the Netherlands had already rejected its articles. Later, six States, including the UK, were refused the possibility of a referendum. Why were they refused? Because the politicians knew and said at the time that these populations would reject the treaty!
Instead, in UK the treaty was passed off as agreed — without a referendum. But not only without one. It was passed off in direct opposition to the people. It was rejected in referendums in Ireland and in France and the Netherlands when it was called the Constitutional Treaty.
This sleight of hand must be rectified at first for future generations. A constitutional arrangement based on a fraud will not stand.
The people must agree to the Lisbon Treaty before it can be used. Only then can a problem free Article 50 be used as a basis for a referendum decision in Parliament.
The UK is in the midst of a constitutional revolution, comparable to the union of the United Kingdom. Now it is on the scale of the Continent of Europe (excluding only such States as Iceland, Norway and Switzerland etc who do not wish to join).
The Convention of Human Rights of Strasbourg supplies the baseline. The 1951 Great Charter of the Community defines the right of peoples to choose.
In the 21st Century the people in a referendum must agree every constitutional treaty.
An honest Europe cannot be built when politicians are allowed to fool the people in constitutional arrangements made in secret and without public assent.
David Heilbron Price