A C Grayling Deconstructed

Academia: signs of the strain of Remoanerism

Photo © YouTube / Carnegie Council

A Lesson in Democracy

Introduction

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 [1].

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" [2].

I thought it would be interesting to examine Grayling’s "Deconstruction".

Here is the video of the Question - and A C Grayling's answer


Approx 5 mins - © YouTube / Carnegie Council

(I) The Actual Question

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 [3]): 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 [4].

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.

(IV) Sovereignty

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 [5]. 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 [1964] ECR English Special Edition 585), the Court stated [6] (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." and

"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[7], 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" [8].

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).

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Reader Comments 2

1. Jenny P, Dorset , Sunday, December 30, 2018, 15:16:

Very good article. You destroyed his arguments which I have to say were very weak anyway. One of the Facts4EU 'Observations' is on the button - When it comes to Brexit some very smart people seem to have lost their ability to reason and debate based on facts and logic. Enjoyable article Michael, thank you.

2. David Reason, Renfrewshire , Sunday, December 30, 2018, 15:19:

Your fourth point is one that was mentioned in the campaign last year but not often since. The unelected Commission is the body that puts forward legislation. Look at the people in the Commission. There's an article on this site about Mrs Mogherini who is the EU's 'High Representative' and Vice-President. All wrong and yet Grayling just can't see it.


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