Among all the distortions and untruths of this referendum campaign, leave’s battle cry, “take back control”, is the greatest.
And yet, unlike the lies about immigration and spending, this claim that we can regain our sovereignty by leaving the EU has rarely been challenged. Perhaps this is because David Cameron believes it too. Or perhaps because our politicians have decided it is too difficult to explain how the laws of the EU really affect us, or what our legal system might look like if we were to leave. As Joshua Rozenberg put it this week, books could be written on the subject. Without wishing to deny the complexity of the issue, there are powerful rebuttals to the foundation of the leave campaign that must be made if we are to vote with our eyes open.
First, let’s be clear about leave’s proposal for our future relationship with the EU. They flirted initially with the half-in models of Norway and Switzerland. Those countries are members of the European Economic Area, benefiting from the European single market. While they are not members of the EU and have no say in the development of its laws, they are bound to observe its rules. If we were to adopt this model, and give up our ability to influence the laws of the EU, we would suffer a significant loss of sovereignty. This is why the leave campaign has ultimately favoured withdrawal from the single market – they could not plausibly have championed “control” in the face of such an obvious loss of power.
Assuming that the leaders of the leave campaign would conduct the exit negotiations with the EU, we would be leaving the single market and would no longer have any formal legal obligation to harmonise our laws with that of the EU. Parliament would be expected to repeal the European Communities Act of 1972, which gives EU law supremacy over UK law. And with that, sovereignty would return to the UK parliament and devolved assemblies. Or would it? Before anyone confidently asserts the triumphant return of our sovereign powers, they need to understand what EU law regulates and how it is enacted in UK law.
EU legislation is predominantly regulatory and standard setting – think of mandatory emissions standards for cars, toy safety, regulation of chemicals, food, medicines. But it also creates substantive protections for consumers, businesses, workers and the environment – imagine a system without guarantees of parental leave, or non-discrimination. EU law takes two main forms: directives, which the UK must implement through legislation passed by parliament; and regulations, which are directly applicable in UK law without the need for any implementing legislation.
What effect would repealing the European Communities Act have on the status of EU-derived law in the UK? It would not undo the implementation of EU directives that have become acts of parliament or statutory instruments. Those would remain in force unless they were repealed. While sovereignty might theoretically have returned to the UK, it would be meaningless unless every EU-derived statute was reviewed and a decision taken about whether it should be replaced with home-grown legislation. Given that the UK has positively embraced much EU law (voting for over 90% of it in the EU council), and often enhances EU standards in our national legislation, the process of review and repeal would be an exercise in the absurd.
Directly applicable regulations pose an even greater dilemma. On repeal of the European Communities Act they would cease to have effect, leaving a continent-sized hole in our regulation of fundamental aspects of our business, work and environment. Parliament could enact legislation giving EU regulations the status of UK legislation, but this would defeat the whole purpose of the leave campaign. We can hardly claim enhanced sovereignty if we simply adopt the same EU laws we had before we left. And if the regulations are to be replaced, they would be replaced by lower standards, inspired by a Ukip approach to law-making, leaving us with impoverished legal protection.
Take air quality. For years, the government has failed to implement measures to lower levels of nitrogen dioxide to the standards imposed by EU environmental legislation. In April, the UK supreme court was able to use EU law to order the government to do better. We know that unhindered by EU rules, the government would choose lower standards of environmental protection that will harm our health.
If we are to “take back control”, assert our sovereignty and remake these laws ourselves, as the leave campaign says we must, we need to be clear that a vote to leave is a vote for the needless destruction of our legal system. It is a vote for a process that would consume years of parliamentary time, divert precious public resources to battalions of lawyers, and jeopardise the effective governance of our country.
