Michael Upton: A Valediction – forbidding mourning thoughts on leaving the European Union

Michael Upton

So Brexit is done.

My mother still recalls the news on 19 April 1945, sixteen days before the war’s end, that Germans had executed her grandfather in prison in Copenhagen for membership of the Danish Resistance. His daughter and son-in-law, my Danish grandparents, had themselves not long before been released from German imprisonment. Unbeknownst to them the grandmother and mother of the woman whom I was later to marry had just arrived in Denmark from what is now Lithuania, as German refugees fleeing the Red Army. Nearby in Holstein, my father-in-law’s family as Italian immigrants experienced the change from living in an allied to an enemy Germany when Italy switched sides. My father had prepared for D-Day more peacefully - acting as occasional human ballast in landing-craft tests on the Thames.

You may like me be a Euro-mongrel: out of these strands was born an upbringing in Britain and Denmark; my education in the European Union’s laws at its university in the old abbey on the inexpressibly beautiful hillside above Florence (thanks to Neil MacCormick); my crossing the continent by bicycle; and ultimately my dual-nationality, bi-lingual Anglo-German family.

Like many readers I have made professional visits to the EU’s four main institutions, and have for 30 years taught, written about and practised in the field of its laws. Few of my boasts are prouder than that my Belgian god-daughter’s father was one of the authors of the EU Constitution (the Lisbon Treaty as it became). After the winter of war, in the long summer of Europe’s late twentieth century, I was raised among four languages in an implicit belief in European unity.

And that does not equate to belief in membership of the European Union.

The flaws of the EU are as extensive as the corpus of its law. It is flawed at many levels.

Few reasonable people would argue that in Scotland or Britain, only civil servants should be able to propose laws - or that alongside basic constitutional freedoms, trade policy and the details of competition law should be fundamental law, changeable only by constitutional amendment requiring unanimity - or that the Supreme Court should be bound by a default-rule, that in case of doubt disputes are to be resolved in whichever way will render the United Kingdom “an ever closer union”. Many might even question the sanity or good faith of proposing these as building-blocks of our national constitution. Yet they are basic to EU law.

The incorporation of competition law into the Treaty on the Functioning of the EU has always been a particularly acute moral paradox. Art. 101 makes it fundamental law that undertakings may not form cartels, with members trading on advantageous terms denied to outsiders - and there stands art. 101, in seemingly radical innocence of the fact that all around it the rest of the Treaty makes it equally fundamental law that the EU itself shall be precisely what it outlaws.

But perhaps even more basically, the EU has been judged un-democratic, by minds as diverse as Enoch Powell and Michael Foot. The point comes down to this: EU laws are not made by and at the initiative of a directly-elected legislature.

Paradoxically, this is borne as much out of member-states’ wish to constrain the EU’s power as out of a policy of imposing unity through the agency of unelected officialdom. The EU could be rendered absolutely democratic, by endowing the EU Parliament with absolute sovereignty - but the coalition against any such reform would have made political allies of even Angela Merkel and Nigel Farage.

Instead, the attempt to reconcile the Union’s objects with member-states’ interests led to legislative procedures which sadly only a specialist can describe. The procedure of a bill through the Scottish Parliament, or the Houses of Parliament, is easy to grasp. Intelligibility is critical to accountability, and accountability to democracy. Here the EU fails. Who shall narrate its Co-decision Procedure - via the formal and the informal trilogues?; the Consultation Procedure - differing between the Consultation Procedure involving the Parliament, and the Consultation Procedures involving the Committee of the Regions and the Economic & Social Committee?; the Consent Procedure?; the procedure for joint Council-Commission acts under arts. 31 & 207 T.F.EU?; Commission legislation under Treaty powers?; Commission legislation under delegated powers?; Treaty revision by ordinary revision procedure?; Treaty revision by simplified revision procedure?; Treaty revision by Passerelle clause?; etc.?

A consequent curiosity of our politics has been how few Remainers have seemed able to explain how EU laws are made, while people marched in the streets for constitutional principles that they could not paraphrase. It seemed a long way from the popular progressive politics of the Chartists or John Maclean. Perhaps understanding is not always a precondition of loyalty.

Read the full article on the ILN website