The last time that I wore my kilt was a couple of months ago in celebration of our baby grand-daughter’s christening. I like to wear the kilt on such occasions, having been born in Scotland and feeling proud of my Scottish ancestry. Hugh Trevor-Roper, the historian, may be right in claiming that today’s kilts are a relatively recent invention, but whether this is so or not doesn’t really matter: kilts and bagpipes are recognised around the world as symbols of Scotland, its history and its people!
Some 62% of my fellow Scots voted in the June 2016 EU referendum to remain in the European Union. Almost two years earlier, a somewhat smaller majority of Scots (55%) voted in another referendum against Scottish independence. This could suggest that Scottish people are generally happier about their relationship with Brussels than with Westminster.
It would be going too far to claim that both these results are entirely related to how Scots interpret the issue of sovereignty but this clearly played an important role in determining voter behaviour.
“Sovereignty” is an ancient word which has been given a new lease of life by the EU referendum campaign. The reclaiming of sovereignty was portrayed by the proponents of the “leave” campaign as a highly desirable outcome because it would enable Great Britain to “take back control” of all aspects of government that it had “surrendered” to the European Commission. The implicit assertion was that the bureaucrats in Brussels had somehow usurped our sovereignty and so we had lost control over our own affairs.
Although “sovereignty” conveys a sense of absolute authority, such as that clamed by the supreme leader of North Korea, it is now normal for most modern governments to share elements of their authority with other entities when they consider that this is in the best interests of their citizens. Sovereignty is the power and authority of a government to do things and is only useful so far as it is used. Every time a government enters into a treaty or power-sharing agreement it uses that power and binds itself for the future. The UK is a member of possibly 3,000 international bodies, each of which it entrusts to take actions on its behalf.
The concept of sharing of sovereignty is central to the British government’s devolution of certain of its powers to Northern Ireland, Wales and Scotland (as in the case of local government or education) while retaining authority over such issues as defence and foreign affairs which all parties agree can best be handled at UK level.
When Britain joins an international agency, it effectively endows it with a slice of its national power for the purpose of engaging with other countries on an equal footing to create and sustain shared institutions which carry more weight than single countries working alone. This can be exemplified, for instance, by the UK’s membership of NATO whose Military Committee effectively assumes command of part of Britain’s armed forces when it engages in joint operations or exercises.
Such selective pooling of elements of sovereignty by member governments is fundamental to the smooth operation of the 28-nation European Union. If the European Commission could not count on all its members to adopt similar standards when trading with each other, in managing environmental or health threats that are not confined by national borders, or in imposing sanctions on other nations, it would achieve very little.
The extent to which power has been shared in this way with other EU members is defined in the Treaty of Rome and its amendments. Sharing of authority can add to the aggregate power of an individual country to safeguard the interests of its citizens, for instance through protecting their health through applying agreed standards on food safety or enabling us to have ready access to free health services across the region.
For the EU to function smoothly and fairly, it approves regulations and directives. Most of these relate to the functioning of the single market and to matters with cross-boundary dimensions. They emerge from a thorough consultative process involving all member governments, represented by the concerned ministries. They are usually subject to the approval of the European Parliament in which all member governments are represented by democratically elected MEPs. Once issued, governments are required to implement EU laws and to bring equivalent national laws into line with them. Members can, however, challenge them if they can show that they are not consistent with EU treaties or plead for exemptions. Thus, the UK retains its independent currency and is not part of the Schengen Agreement that cuts border checks on people moving between signatory countries.
Any free trading arrangement between countries – whether it is the EU single market or one of the bilateral deals that the present British government aspires to negotiate with other countries – is necessarily based on agreed standards, not related only to specific goods but also to the conditions under which they are produced: this is to assure fair play. Trade agreements also require dispute resolution procedures to make sure that the parties adhere to the agreed rules. In the case of the EU, disputes are handled by the European Court of Justice (ECJ) from which the “leave” campaign proposed withdrawing. Yet, if Britain aspires to continue trading freely with Europe after Brexit, as the Government has stated, surely it will have to either rely on the ECJ (but probably without being able to appoint a judge) or create a similar parallel mechanism at considerable inconvenience to the remaining EU members.
The Case for Regulation
Most of us have mixed feelings about accepting and conforming with laws wherever they originate. Populists like to play on our natural tendency to resent regulation. In practice, we tend to be law-abiding unless we feel confident that we can get away with minor infringements. Many of us are happy to exceed the speed limit when we think that we won’t get caught, but, when we are warned of a speed camera, we take our foot off the accelerator! Few of us, however, would call for the abolition of speed limits or indeed of many of the other regulations that together contribute to the rule of law.
Whether we remain in the EU or leave it, our history and geographical juxtaposition as well as our desire for lasting peace make it of paramount importance that we maintain a benign and trusting relationship with our neighbouring European countries. The European Union has constructed, with our full engagement, a complex but generally effective institutional framework for managing this relationship, which necessarily must be protected by rules overseen by a jointly operated system of justice.
Scotland strongly welcomes the current arrangements with the EU and does not feel threatened by excessive regulation. Now, more than two years after the referendum, there also seems to be a growing recognition amongst the majority of English voters that the bulk of EU law as applied in the UK is benign and tends to reinforce fairness in individual and corporate behaviour.
Perhaps the best way to arrive at a personal verdict on whether the EU has intruded unduly on our sovereignty is for each of us to ask ourselves whether we have actually experienced any instances in which we feel that our own lives have been negatively impacted by an intrusive reach of EU law into the UK. Similarly, can we point to specific UK-related cases handled by the ECJ in which we sense there has been a miscarriage of justice?
One of the oddest things about Brexit is that those who have called most loudly for the reclamation of British sovereignty, have been the first to seek to avoid the engagement of parliament – where most of us would claim our sovereignty resides – in the process of disengaging from the EU. They have also sought to brush aside the objections to Brexit that have been raised by the devolved administrations in Edinburgh, Cardiff and Belfast – a disdain that seems bound to fuel latent separatist tendencies and hasten the break-up of our United Kingdom.
If Brexit should eventually happen, one could imagine that a vindictive prime minister might be tempted to decide that the Scots must be punished for their disloyalty, perhaps by forbidding us from expressing our nationalism through wearing our kilts!