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Regular readers know that we specialise in reducing the arguments about Brexit and the EU into what we hope are bite-sized chunks. Sometimes we have to write longer pieces when the subject is complex, but then we can usually break things up with images and graphs.
As a break from our normal output, the article below takes a look at one of the better-known examples of academia's infestation with Remoanerism: the philosopher A. C. Grayling.
One of our readers and a 5-star VIP supporter of Facts4EU.Org, Michael Donnan, has taken a look at Grayling's views on democracy as a reason to have voted Leave. We hope you enjoy his article.
Thoughts on A. C. Grayling’s “Deconstruction” of a Brexit ‘Leave’ Argument
By Michael Donnan
In October 2017, the British philosopher and anti-Brexit campaigner Professor A. C. Grayling gave a talk in New York entitled “Democracy and its Crisis”. The text of the talk is available on the website of the Carnegie Council for Ethics in International Affairs .
The talk was interesting enough (and I applaud his defence, during the Q&A session, of freedom of expression) but what took my notice in particular was his response to a question relating to democracy as a reason for having voted ‘Leave’ in the 2016 Referendum. This question and the response feature in a video entitled “A. C. Grayling Deconstructs an Argument for the Brexit ‘Leave’ Vote”. I thought it would be interesting to examine Grayling’s “deconstruction”.
HERE IS THE VIDEO OF THE QUESTION - AND A C GRAYLING'S ANSWER
The lady who raised the question said that she has: “a lot of friends in England who voted for Brexit who are neither ill-educated, ill-informed, or even poor, and their reason for it was that it was democracy — aside from the 53 percent and who stayed home because it was raining — because it was making government more accountable locally. It was getting rid of the yoke ... of an unaccountable, unelected, micromanaging group in Brussels, and bringing it back to a more authentic democracy”.
(II) Preliminary Observations
The question was not about the legitimacy of the UK’s 2016 Referendum: this should be obvious, and the questioner’s remark introduced by the word “aside” puts it beyond doubt.
The question was not primarily about UK parliamentary sovereignty.
The question was essentially about democratic accountability (a notion that is conceptually distinct from that of parliamentary sovereignty ): the lady’s English friends would seem to have placed a high value on our representatives in the legislature being elected, not appointed, and being accountable. Accountability is achieved in the UK by members of parliament having periodically to stand for re-election on their record, with the possibility of rejection by the electorate. Indeed, Grayling acknowledges this notion of democratic accountability, for in his talk he says, with reference to our elected representatives, “.... if we do not like what they do, we can kick them out next time, and we can put in their place somebody who will do a better job for us”.
(III) The Referendum
Grayling starts his response by criticising the franchise adopted for the Referendum, the absence in the Referendum legislation of a threshold requirement, and the Government’s acceptance of the Referendum result as mandating Brexit. All of that is irrelevant to the actual question. However, I cannot resist noting that one of Grayling’s objections to the Referendum franchise is that 16 to 17-year olds were denied a say . Yet, in his talk, Grayling remarks: “I rather think that the voting age should be 16, but it should be accompanied, of course, by a very rich offer of civic education in politics and government.” That implies that such a rich civic education is a necessary condition for lowering the voting age to 16. However, at the time of the 2016 Referendum it could not have been seriously contended that UK schools actually were offering a very rich civic education in politics and government, and therefore Grayling’s necessary condition was not met. It follows therefore that 16-17-year olds should not have had a Referendum vote.
Grayling then asserts that: “Some of the arguments about sovereignty, taking back control and escaping the rule of Brussels and so on, are sheer distortions, mainly the result of the tabloid press .... Because it has never been the case that any of the sovereign Member States of the European Union have been under the inescapable control of Brussels”.
Grayling has thus shifted from the issue of the Referendum’s legitimacy to the issue of sovereignty, the latter issue being only tangential to the actual question. Nonetheless, a comment or two would seem called for. Towards the end of his response, Grayling returns to this issue and tries to justify his position by referring to Section 2, paragraph 1, of a white paper published by the UK Government . This says: “The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that”. At this, one feels the temptation to adapt Mandy Rice-Davies’s infamous remark and suggest that “well, they would say that, wouldn’t they?” What government is going to admit to transferring sovereignty to a foreign power? However, a more considered response is appropriate.
The supremacy of EU law over UK national law is recognised, so the argument goes, only by virtue of the European Communities Act 1972, and, since the UK Parliament can repeal the 1972 Act (as is the current intention), Parliament retains its sovereignty. However, the fact that the Government could throw off the EU shackles at a future date does not conflict with the fact that it is shackled now.
Accordingly, Grayling ignores the important distinction between the situation that obtains when the 1972 Act is in force and the UK remains a member of the EU and the situation that would obtain if the 1972 Act were repealed and the UK left the EU. One purpose in voting “leave” in the Referendum was to move the UK from the first situation – in which legislation promulgated by the European Union prevails over legislation promulgated by the UK Parliament – to the second, in which the law promulgated by the UK Parliament would be supreme.
The white paper rather gives the game away in the preamble to its Section 2, which preamble assures us that the UK Government “will take control of our own affairs... and bring an end to the jurisdiction in the UK of the Court of Justice of the European Union” (CJEU). The Government’s pledge to “take control of our own affairs” implies that Parliament does not have full control at this time. And if Parliament does not have full control over its own affairs, the conclusion must be that it has relinquished at least a measure of control and to that extent currently lacks full sovereignty.
That conclusion is consonant with the view of the CJEU. In the much-cited Costa case (Case 6/64 Costa v. ENEL  ECR English Special Edition 585), the Court stated  (emphasis added):
“By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have created a body of law which binds both their nationals and themselves.”
“The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.”
Of course, the EEC has since evolved into the European Union but subsequent decisions have endorsed the principle that EU law prevails over national law.
(V) Democratic Accountability
Grayling offers an account of European Union legislative procedures thus: “The Secretariat in Brussels .... carries out the requirements of the Council of Ministers, which are all the Member State governments who jointly put forward European Union legislation and has [sic] it ratified by the European Parliament, whose members are voted by citizens of all the Member States. So, it is actually a more democratic system than the UK system is because we have.... the first-past-the-post voting system, which means that successive governments are always voted in a minority”.
Then comes a brief digression in order to criticise the first-past-the-post system, to which Grayling adds: “It is not what happens in Europe. Europe is proportionally represented. The Council of Ministers, the heads of state of the European governments, are the ones who formulate policy. Brussels, this metaphor that people use, merely carries out—it is a civil service—the instructions of the Council of Ministers”.
THE EU AS MORE DEMOCRATIC THAN THE UK...? REALLY?
One cannot of course expect an off-the-cuff response in a Q&A session to be meticulous and exhaustive. Also, it is possible that Grayling was seeking to provide a simplified, non-technical answer for his American audience. Allowing for this, I consider, for the following reasons, that his account still leaves much to be desired.
First, when Grayling suggests that the European Parliament is more democratic than the UK Parliament, he is not comparing like with like. As Professor Alina Kaczorowska-Ireland puts it, the European Parliament, “unlike national parliaments, is not a real, sovereign parliament as it neither has power to initiate and enact legislation, nor to impose taxes”.
Second, the statement that “Europe is proportionally represented” needs an important qualification that Grayling omits. Article 14 of the Treaty on European Union (TEU) specifies that each member state shall have at least 6 seats, that no member state shall have more than 96 seats, and that representation of citizens shall be degressively proportional. The last condition, whilst requiring that the larger the population of a member state, the greater is its entitlement to a large number of seats, also requires that each member of the European Parliament from a more populous member state represents more citizens than each member from a less populous member state.
This means that, for example, the UK is significantly under-represented in the European Parliament (in terms of representatives per capita) in comparison with the small member states. Thus, according to the German Federal Constitutional Court, the European Union “lacks a political decision-making body created in equal elections by all citizens of the Union and with the ability to uniformly represent the will of the people”.
Third, the institution whose members are the heads of state or government of the member states and whose role is to formulate policy is the European Council, and not – as Grayling seems to think - the Council of Ministers. See Article 15 TEU, which also states that the European Council “shall not exercise legislative functions”. The Council of Ministers, by the way, is now referred to in Article 16 TEU as just the Council, although some information material from the EU also calls it the Council of the European Union. Its members are government ministers from each member state, which ministers will vary depending on the policy area to be discussed.
Fourth, in the ordinary legislative procedure of the EU it is not the case that (in Grayling’s words) “all the Member State governments .... jointly put forward European Union legislation and has [sic] it ratified by the European Parliament”. The ordinary legislative procedure in the EU crucially involves an institution which Grayling, astonishingly, fails to mention, namely the European Commission. Article 17, paragraph 2, TEU provides that “Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise”. Thus, in the ordinary legislative procedure, both the Council and the European Parliament consider legislation that has been proposed by the Commission.
Fifth, the members of the Commission are “chosen” (TEU, Article 17, paragraph 3). They are not elected by the EU citizens who enjoy the European Parliament franchise, nor can those citizens vote out of office any of the Commissioners. Therefore, and unlike our Members of Parliament, the Commissioners are unelected by, and unaccountable to, the electorate.
And that is surely the point that caused the questioner’s friends such concern!
Michael Donnan Esq, for Brexit Facts4EU.Org. Re-published 23 Feb 2018
SOURCES: 1. https://www.carnegiecouncil.org/studio/multimedia/20171026-democracy-and-its-crisis-ac-grayling
| 2. https://www.youtube.com/watch?v=E0YKwKiYISY |
3. This is easily demonstrated. Consider a parliament composed entirely of people appointed for life: it could well be sovereign if not subject to any foreign influence but it would not be democratically accountable.
| 4. A. C. Grayling, “Open Letter to Theresa May”, 09 August 2016, sixth paragraph; http://www.acgrayling.com/open-letter-to-theresa-may
| 5. “The United Kingdom’s exit from and new partnership with the European Union”, Cm 9417, February 2017.
| 6. As quoted in Bobek, Michal, “The effects of EU law in the national legal systems”, Chapter 6 in Barnard, Catherine and Peers, Steve (editors), European Union Law, Oxford University Press, Second Edition (2017), page 162).
| 7. Kaczorowska-Ireland, Alina, European Union Law, Fourth Edition, Routledge (2016), Section 3.3.
| 8. As quoted in Schütze, Robert, “Constitutionalism and the European Union”, Chapter 4 in Barnard and Peers, op. cit., Case Study 4.2 at page 83).
THOUGHTS ON M. MICHEL BARNIER’S STATEMENT AT THE PRESS CONFERENCE FOLLOWING ROUND THREE OF THE BREXIT NEGOTIATIONS
M. Barnier said that trust needs to be built in two areas. First, he stated that recent events reinforce the need to ensure that citizens’ rights are directly enforceable before national jurisdictions. However, he then at a stroke reduced that thus far unobjectionable statement to absurdity by adding “under the control of the European Court of Justice.” M. Barnier seems not to have taken on board the simple truth that once the UK ceases to be a member of the EU, it becomes an independent sovereign state. No sovereign state can sensibly permit residents or visitors within its territory who are not its citizens to be subject to a foreign legal system instead of its own, or to have a foreign court take precedence over its own courts in respect of those non-citizens.
Furthermore, the task of the ECJ is to ensure that the law is observed in the interpretation and application of the Treaties (Article 19). However, under paragraph 3 of Article 50, upon the entering into force of a withdrawal agreement between the UK and the EU or, in the absence of such an agreement upon the expiration of the prescribed two-year period (an extension being possible but highly unlikely), the Treaties will cease to apply to the UK. It presumably follows that the UK will then automatically be beyond the ECJ’s jurisdiction.
The second area is the financial settlement. Here M. Barnier resorted to mere sophistry in order to appear to be making a case. Having recited some projects - such as the granting of loans to the Ukraine and the support of development in Africa and elsewhere – he said that it is clear that the UK does not feel legally obliged to honour its obligations after departure. Note the phrase “its obligations”. However, the point at issue – which M. Barnier carefully avoided - is whether the continued financial support for such projects actually is a legal obligation for the UK: if not, it obviously ceases to be one of “its obligations”.
But that is not the end of the sophistry. M. Barnier said that EU taxpayers should not pay at 27 for the obligations undertaken at 28, as that would be unfair. He said that we have joint obligations to third countries (the Ukraine loans and the development support mentioned above) and that we have also jointly committed to support innovative enterprises and green infrastructure in European regions until 2020. This language was intended to convey the idea that the UK entered various joint ventures with the other 27 EU members (and is now trying to duck the consequent obligations). However, the projects in question are not joint ventures undertaken by the UK in partnership with the other 27 member states: they are projects undertaken by the European Union. Under the Treaties (see Article 47) that Union enjoys legal personality: it is therefore an entity that is legally distinct from its member states, irrespective of whether those states are taken individually or in aggregate. The financial obligations remain those of the European Union as the responsible legal entity and should therefore be paid out of European Union funds and not be apportioned (even notionally) among individual member states.
Shortly after Charles I was executed in the name of Parliamentary sovereignty in 1649, Parliament was abolished and an appointed “Barebones Parliament” installed. The episode illustrates the Italian elite-theorist Vilfredo Pareto’s thoughts on the fragility of elites: ruling groups tend to be very small, and are therefore vulnerable to being toppled. 
Amid the heat and light of the referendum to leave the European Union, we seem to be at risk of losing sight of a struggle among elites: the campaign of the judicial elite to gain hegemony over the political elite, the latter still being answerable to electorates despite democratic choice decreasing as cartelisation has increasingly turned discrete parties into wings of a superparty which has only started to redemocratise after the referendum.
The antagonism is far from new. As legal and political groups adjusted to the Representation of the People Act 1884’s extension of the franchise and prepared themselves for further inevitable extensions, jurist Albert Dicey pointed out that the “lawful supremacy” of Parliament over the judiciary had been sealed when William III became king not through succession but through statute – the 1701 Act of Succession, which is still in force today. 
In 2005, the judiciary’s campaign for hegemony emerged from eclipse with the Jackson v. Attorney-General judgement, which in referring to Dicey fired a shot over the bows of anybody who assumed that the UK Parliament would always remain sovereign:
The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution...[but] In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. 
Three years later, in 2008, the UK was signed to the Lisbon Treaty, a series of amendments to the EU Constitution renamed so as to avoid the need for referendums. The Supreme Court was set up the next year but seems to have been erroneously named, as it can send European Court of Human Rights cases back only “in rare circumstances”,  and one of its own cases has produced the judgement that “a national court…should not without strong reason dilute or weaken the effect of the Strasbourg case law.” 
It seems a subservient position, but nonetheless it represents a victory of the judiciary as a class against elected politicians, and therefore against the electorate as a class. But it should not have come as a surprise, because Paragraph 3(1) and (2) of the UK’s European Communities Act 1972 demand that judicial notice be taken of any EEC (now EU) treaty as well as any decision of or expression of opinion of the European Court.
However, it should be noted that not all judges and lawyers are anti-democracy and, as the political reaction to the referendum result shows, not all politicians are pro-democracy. Lord Neuberger, while Master of the Rolls, backed up Bagehot’s investiture of “the nation” as “the present sovereign”  when he concluded in a 2011 lecture that “Parliamentary sovereignty is absolute, because the only true master is the electorate”.  And the nearest we can get to establishing what one might call the will of the electorate is to establish the majority view, as both Spinoza  and Scheler  counselled at either end of the Modern period. Majoritarianism doesn’t mean that minorities will be ignored, it simply serves notice upon elites that abstracting the suffering of minorities in order to commodify it in the service of de-centring majority traditions and culture for political purposes are at an end.
However, elites have been preparing for an upset such as the EU referendum (or indeed the US Presidential election) result. David Estlund coined the word “epistocracy” in 2013 from episteme, Greek for “knowledge” or “understanding”, to promote his view that “some citizens are better (if only less bad) than others with regard to their wisdom and good faith in promoting the better outcomes”.  Fellow philosopher Jason Brennan went further in a 2008 book with the chilling title Against Democracy, asserting that “When some citizens are morally unreasonable, ignorant, or incompetent about politics, this justifies not permitting them to exercise political authority over others”. 
In 2016 the Gramscian thinker Lorenzo Capitani took these viewpoints to their natural conclusion by saying that “education is key” to democracy. This might sound reasonable, but Capitani unpacks it to allow for “the downgrading of an individual” who fails to display sufficient knowledge to vote in an election or referendum, this being measured by exams. 
Here we have a problem: phrases such as wisdom, ignorance, good faith, morally unreasonable and incompetent about politics are highly normative and will be interpreted according to the mindset and purposes of those invested with the power to set and Mark Capitani’s exams. Also, when the Representation of the People Act 1948 abolished plural voting, full suffrage became full and equal suffrage, each citizen’s vote a tangible sign of his or her equality with every other citizen. To “downgrade” somebody, disabling them from voting in some or all elections and referendums is to proclaim that in at least some senses they are less equal than their voting compatriots, a view that must ring alarm bells.
Since we began this brief investigation into sovereignty with the English Civil War, one of the Europe-wide convulsions stemming from an opposed Reformation, I wish to conclude by suggesting that the EU referendum result marks a desire for political reformation. A majority of voters wish their democratic agency back, which may put them on a collision course with the Supreme Court with its President, Lord Neuburger, now stating court orders are a parallel lawmaking activity to Parliamentary debate,  a position which could see judges take the UK back towards EU membership outside of any democratic process.
The original conflicts only stopped with the Peace of Westphalia, from which national sovereignty evolved. I hope enlightened individuals among both parliamentary and judicial elites will resist the temptation of forming an antidemocratic power-sharing cartel – at least while judges are unelected – so some of history’s more unfortunate pages don’t have to be rewritten while the fragile wheel of our civilisation is reinvented.
Footnotes / sources
 Marshall, Alasdair J, Vilfredo Pareto’s Sociology: A Framework for Political Psychology (2007), Routledge 2016, p31
 Dicey, AV, The Law of the Constitution (1885), ed. JWF Allison, Oxford University Press 2013, p29
 House of Commons, Jackson v. Attorney-General (2005) p 47. Available at https://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdf, accessed 18/11/2016
 The Supreme Court, The Supreme Court and Europe. Available at https://www.supremecourt.uk/about/the-supreme-court-and-europe.html, accessed 22/11/2016
 parliament.uk, Judgments - Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant), 2004. Available at http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040617/ullah-2.htm, accessed 22/11/2016
 Bagehot, Walter, The English Constitution (1867), ed. Paul Smith, Cambridge University Press 1991 p119
 Lord Neuberger of Abbotsbury, Master of the Rolls, Who are the Masters Now? Judiciary of England and Wales 2011, p18. Available at http://webarchive.nationalarchives.gov.uk/20131202164909/http:/judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf, accessed 22/11/2016
 Spinoza, Benedict de, Theological-Political Treatise (1677), trans. Michael Silverthorne and Jonathan Israel, Cambridge University Press 2007, p202
 Scheler, Max, Formalism in Ethics and Non-Formal Ethics of Values (1916), trans Manfred S Frings and Roger L Funk, Northwestern University Press 1973, p529
 Estlund, David, Why Not Epistocracy? in Desire, Identity and Existence: Essays in honor of T.M. Penner, ed. Naomi Reshotko, Academic Printing and Publishing 2003, pp53-69
 Brennan, Jason, Against Democracy, Princeton University Press 2016, p17 (his emphasis)
 Capitani, Lorenzo, Informed Voting, Philosophy Now issue 116, October/November 2016, p19
 Lord Neuberger, President of the Supreme Court, Some thoughts on judicial reasoning across jurisdictions, Supreme Court 2016. Available at https://www.supremecourt.uk/docs/speech-161111.pdf, accessed 22/11/2016
Since the outcome of the referendum became known on 24th June, the forces of the Remain side have fought a rearguard action in an attempt to thwart the will of the majority.
The argument to hold a second referendum has largely been lost, despite notable interventions from Tony Blair and Owen Smith in recent days so Remainers have reverted to a more subtle argument based around the concept of “Soft Brexit.”
Arch-Europhile LibDem Nick Clegg is a leading proponent of “Soft Brexit” yet he of all people with wide experience in both the UK Government and Brussels knows only too well that this is a wholly disingenuous argument. There is no such thing as “soft Brexit”.
Prior to the Referendum campaign, Cameron attempted to negotiate concessions to curtail Freedom of Movement and enable him to recommend remaining within the EU.
Despite knowing the importance of the issue of migration from published opinion polls and the thought that the rapidly approaching referendum might concentrate minds, it was made very clear by Merkel, Juncker and Hollande that no concessions were going to be made.
Cameron then tried to negotiate a worthless “emergency brake” to inward migration from other member states. Worthless, because it would be entirely up to the 27 and Commission as to if and when the brake could be implemented. Cameron must have known that winning the referendum would now be immensely more difficult and, despite assuring the country that if he could not win suitable concessions he would recommend leaving, he went ahead and led the Remain campaign from the front.
The Leave side fought and won the Referendum campaign on four clear policy lines :
1. Take back control of Immigration Policy
2. Take back control of our legal system, ending the primacy of the European Court
3. Take back the power to negotiate our own trade deals with other Countries
4. An end to EU Budget Contributions
Given the very recent experience of Cameron’s failed renegotiation, it was entirely obvious throughout the campaign that the Brussels establishment and the political leaders of the other EU major States would regard the continuation of tariff-free trade in goods and services between the UK and the 27 as incompatible with any one of these four demands, let alone all four.
As the four issues detailed above were the entire basis on which the Leave campaign won, they will inevitably be Red Lines in the Leave negotiations.
With the attitude of the rest of the EU clearly stated beforehand, it stands to reason that Leaving always had to mean being outside the so-called single market and also the Customs Union. (Being in the Customs Union requires member states to hand over all external trade negotiations to Brussels).
Leading Remain spokesmen including Cameron and Osbourne made all this very clear throughout the campaign.
Every Remain campaigner knows only too well that this is the case, yet they are being entirely dishonest by continuing to demand “Soft Brexit” in the hope that Mrs May can be persuaded to water down her four Red Lines.
In short, what they are trying to do is keep the United Kingdom firmly under the control of Brussels but without a place at the table at which we could make an ultimately fruitless attempt to influence the future direction of the Union. This would clearly be the worst of all worlds.
Much is being made about the need for confidentiality in our negotiation strategy yet there really is no need to hold back on this :
It is obvious that the Government will offer to continue with Tariff-Free trade in goods and services together with clear implementation of the four Red Lines. The deal is very much in the interest of the 27, given our trade deficit with them, and it can be sweetened with continuing cooperation in areas such as security and policing but essentially that is it. There may be some negotiation around the edges but essentially it will be up to the 27 to accept or decline this offer.
Given the frequently stated position from Brussels, they will almost certainly decline rather quickly. In that case major discussions can be ended and trade will have to revert to WTO trade terms.
Mrs May will then endeavour to ensure that we make a clean but friendly break with the 27 allowing time for discussions of the fine detail after we have formerly left.
Remember, the Article 50 period of 24 months is a maximum, every month we remain within the Union costs us another £850m in net contributions.
In whose interest is it to prolong negotiations ?
C Sheldrake, 06 Nov 2016
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