Professor Ken Minogue
Retaining British sovereignty has been a major concern of those critical of how the EU has developed. Critics sometimes dismiss this concern as if it were a clinging to something both petty and futile, in a world where wisdom dictates "the pooling" of sovereignty. This latter idea, however, is confused - sovereignty is not the kind of thing that can be pooled".
My concern here is not to explore this logical point, however, but to show why sovereignty first came into being, and why it is essential to Britain in relation to the EU. The reason is that it allows us to repeal laws we no longer want. Parliament's sovereignty emerged slowly towards the end of the middle ages, when European realms had slowly accumulated a vast quantity of law (emanating from the prince, the canon law of the Church, local laws and the law of fairs and markets, common law etc.) Since law protected people, they were resistant to the idea that it could be changed by an act of will; on the other hand overlapping laws were often in conflict. What to do? Ignore the law? Break it? Both were bad, and strong sovereign states, often as in Britain including some element of parliamentary representation, were the answer. Laws could be changed without violating them.
The European Union, however, has the aquis communautaire whose point is basically to insist there can be no turning back
The European Union, however, has the aquis communautaire whose point is basically to insist there can be no turning back. This rigidity is most importantly seen in the avoidance of any possibility that a state might secede from the Union. But it may also be seen in more complex and tangled cases.
Thus the indispensable Christopher Booker has written the nitrate story, which might stand as a fable for the logical problems, to which I shall come, of the curious bureaucratic structure of the Union - and of Britain itself. The story begins with scientific advice based on the expert view, widely current twenty years ago, that nitrates used in farming and getting into the water supply would cause both a rare condition called "blue baby syndrome" and also algal blooms in estuaries. The Commission responded by enacting 91/676 which prohibited farmers in "nitrate vulnerable zones" (NVZs) from growing certain crops or spreading muck on their fields for several months a year. This would, among other things, require the farmer to provide storage for the forbidden muck, at considerable cost. That cost was no doubt a good part of the reason why 13 out of the 15 European members have not implemented the Directive and are threatened with legal action by the Commission.
The European Court of Justice in turn came to criticise the British government for not designating enough NVZs and threatened a fine of £50 million if the Directive were not fully enforced.
Meanwhile, however, science had moved on, as science sometimes does. Nitrates were judged not actually to cause blue baby syndrome, and the algae in estuaries was attributable to phosphates rather than to nitrates - so, as I say, I gather from Christopher Booker, whose comment on the fact that the Directive remains in force is the best summary of my argument: "Once a directive is issued, it is virtually impossible to repeal."
Once a directive is issued, it is virtually impossible to repeal
No less rigid, however, is the position of the British government, which has refused to contest the Directive, as it could on the basis of the EU's 2000 water directive, which would permit Britain and other countries to cancel NVZs on health grounds, thus averting both a fine and a costly burden on farmers.
The reason Britain sticks with this absurd Directive, suggests Booker, is that in 1991, at the height of the nitrate scare, the government forced the 29 newly privatised water companies to install de-nitrification plants, which have so far cost shareholders £3 billion. To abandon the Directive on nitrates might thus open Defra to compensation claims.
A fascinating tale of what Henry James might have called "the high brutality of good intentions." A little scepticism about experts might have nipped these absurd expenses in the bad - but no doubt every bureaucratic enthusiast was following "the precautionary principle."
My point, however, is broader. Let me briefly mention another example before I ram it home. The EU is currently (September 2002) concerned that four countries in the Union, including Germany and France, are about to violate the Stability and Growth Pact, which requires that they should keep public borrowing under 3% of GDP, or should have done so by 2004. The Commission has now (The Times 25 September) moved this goalpost to 2006. Even so, there is much scepticism about its possibility. Meanwhile, however, Ms. Diamantopoulou, the European Employment and Social Commissioner is adopting a New Labour approach to nomenclature. Affirming that social policy is a key input for economic success, she wants to construe social spending not as the nasty thing called "spending" but the nice thing called "investment." The accountants, as you might say, just keep enron-ning along!
So, my point: Rigid systems crack. Repeal is a nice honest way of introducing flexibility because the issue comes up for public discussion. The EU isn't keen on repeal, so instead of fudging law, it fudges reality itself. We are all familiar with the way in which at EU summits, the clock is stopped in order to allow for getting a conclusion by a preordained date. And here we see how targets and definitions are fudged in order to prevent the structure from cracking.
And the deeper point is, of course, that not being a democracy, the EU has no real constitutional arena for admitting repeal.