Are you an undecided or uncertain voter? Here’s the case to Remain in the EU

Professor Steve Peers

It’s nearly the end of this long referendum campaign. If you’re still an undecided voter, or wavering about your choice, or if you know someone who is either of those things, I’d like to set out the arguments why I believe you should vote to stay in the European Union.  

I’ll start out by setting out the case for a Remain vote, then discuss the counter-arguments made by the Leave side.

The case to Remain

In my view, there are a series of reasons to stay in the EU: economic benefits, security, workers’ rights and the environment. I’ll take each of these in turn.

Economic issues

EU membership gives the UK access to the world’s biggest market, plus 50 more countries which the UK has trade deals with via the EU. It might be possible to renegotiate that access from scratch if we left the EU – but it might not. Why take the risk that it isn’t?

The only way to guarantee market access to the EU and 50 other countries is a vote to Remain. So it’s no wonder that the large majority of British businesses support the UK’s EU membership, and are worried about their prospects if we vote to Leave.

Loss of that guaranteed market access wouldn’t just affect those whose jobs are linked to trade with the EU. It would also affect the broader economy, due to the impact on investment and because the government would have less to spend on public services in a smaller economy.

Many people are suspicious of economic forecasts. But the risks of a Brexit vote have already manifested themselves in the last few weeks. The value of the pound and stock markets (which include pension assets) dropped when a Leave vote seemed more likely, and increased again when the odds of a Remain vote went back up. There are reports of capital flight from the country. There’s surely a reason that the Bank of England has drawn up crisis plans in the event of a Leave vote – but no such plans in the event of a Remain vote.

Let’s look further at those economic forecasts. It’s true that many forecasters failed to predict the 2008 crash. But one who did, Nouriel Roubini, has also warned of the economic effects of a Leave vote. And the forecasting record of the few economists on the Leave side is not great either: Patrick Minford predicted that the UK would lose millions of jobs when the minimum wage was first introduced.

In fact, it’s striking to note that some pro-Brexit economists also predict less economic growth for some time following Brexit, although they have no reason to lie about that – just the reverse. Andrew Lilico expects less economic growth until 2030:

And Patrick Minford argues that Brexit can only work if the UK mostly eliminates manufacturing – hardly a pleasant prospect for British workers in manufacturing jobs, and their families and communities.

Security

EU membership comes with a host of laws regarding police and criminal law cooperation. As I discuss here, those laws have helped the UK get hold of far more fugitives for trial in the UK, and also remove more criminals for trial abroad. The amount of data exchanged between police services on alleged terrorists or other criminals has increased too. Moreover, the UK’s justice system is not threatened by EU law in this field: we have an opt-out which the government has frequently used.

Countries outside the EU have access to only a small fraction of these EU measures, and there would be legal complications if the UK sought to renegotiate access to police data exchange after Brexit. There’s clear proof of this – even a non-EU country like the USA has faced repeated legal and political challenges trying to obtain such access in practice.

Again, the only way to guarantee being part of these laws is a vote to Remain – while a vote to Leave would remove the UK from much of this cooperation between police and prosecutors.

Workers

Despite some attempts to deny it, it’s clear (as I discuss in detail here) that EU laws have increased the level of protection for workers’ rights – including equal treatment of women in the workplace – above the level it would otherwise be in the UK. 60% of EU cases involving equal treatment of women in the UK, and 62% of other EU cases involving workers’ rights in the UK, have led to increased protection.

These rulings have improved rights as regards (among other things) pregnant workers and maternity leave, equal pay for work of equal value, paid holidays for more workers, and the protection of occupational pensions when an employer goes broke. It’s no wonder that the large majority of trade unions support the UK’s EU membership.

Many senior figures on the Leave side have explicitly admitted they want to scrap these protections. Indeed, Nigel Farage says that women who have had children are ‘worth less’ to their employers. So, again, the only way to guarantee these rights is a vote to Remain. A Leave vote would risk the future of these employment and equality law protections, by putting their fate in the hands of people who are implacably opposed to them.

Environment

There is a raft of EU laws protecting the environment: from air pollution, to clean beaches, to nature protection, among many more. It’s no wonder that the Green party and environmental NGOs support the UK’s EU membership.

On the other side, the pro-Brexit environment minister has admitted that there are many EU environmental laws he would scrap in the event of a Brexit. The businesses backing the Leave side have drawn up a hit list of dozens of environmental laws they want to rip up.

So, again, the only way to guarantee these rights is a vote to Remain. As with workers’ rights, a Leave vote would hand over environmental protection in this country to those who have admitted their intention to reduce protection.

What about the case to Leave?

What are the risks to Remain?

The Leave side have argued that there are a number of risks to remaining in the EU. As I point out in detail here, these arguments are unfounded. The UK has a veto over tax laws, defence, foreign policy, future enlargement of the EU, the basics of the EU budget (including the EU rebate), trade deals with non-EU countries (including the controversial planned ‘TTIP’ deal with the USA), and transfers of powers to the EU.  Turkey is not about to join the EU: it has agreed only one out of 35 negotiating chapters in 11 years of negotiations. The UK has an opt out from the single currency, bail outs of Eurozone states, joining Schengen and EU asylum and criminal law.

You may not trust British politicians to keep these safeguards. But in the large majority of cases, it’s not up to them to decide on that – it’s up to us, the voters. British law already says that in the case of any transfer of powers to the EU, including the creation of an EU army or joining Schengen or the single currency, another referendum would be needed to approve the decision, as well as our government and parliament voting in favour.

Economic

Is there an economic case to leave the EU? It’s true that the EU has common rules on trade with non-EU countries, so the UK would in theory be able to sign separate trade deals with those countries where the EU has not done a deal yet.

The problem is that this theory would be hard to put into practice. As discussed in detail here, the UK would have to start from scratch negotiating trade deals with those non-EU countries which already have a trade deal with the UK, via the EU. (These include the majority of Commonwealth countries, as I discuss here). Some of these EU-wide trade deals are very advantageous to the UK – for instance our exports to Korea have hugely increased since the EU trade deal with that country.  The head of the World Trade Organisation has also warned that this would be a difficult task.

In the meantime, the UK would have to renegotiate access to its largest trading partner – the EU. It’s true that both sides would have an economic interest in such a deal. But nevertheless, trade deals take years to negotiate, either with the EU or non-EU countries. There are plenty of cases where a deal is never struck at all, despite the economic interests on both sides.

Moreover, the Leave side say they want a free trade deal with the EU, not continued participation in the EU’s single market. That doesn’t bode well for the UK’s trade with the EU after Brexit, because (as explained here) a single market gives better access to services markets – and the UK has a big net surplus in services exports.

When asked about economic issues, those on the Leave side have often said ‘I don’t know’ or ‘so what’. Some have expressed indifference to a negative impact a Leave vote might have on the economy, or said that an economic downturn is a ‘price worth paying’ for leaving the EU.

A good example of this attitude was Nigel Farage’s attitude in one of the debates to the pharmaceutical industry – a huge UK employer (see the graph) with big net exports to the rest of the EU. He was indifferent to what might happen to this industry if the UK left the EU, referring to the UK’s ‘domestic market’ and ‘alternative medicine’ instead.

While Boris Johnson has promised to apologise if leaving the EU causes a recession, that would be cold comfort to anyone losing their job. The Leave side has no coherent economic plan for what happens after a Leave vote and appear indifferent to the prospect of economic loss if we leave.  

On a related point, it’s true that the UK is indeed a net contributor to the EU budget. But the Leave side has exaggerated the amount the UK pays. As discussed here, the British rebate money is never sent to the EU, and the UK has control over the EU money that it sent back to the UK. In all, the net contribution is 1% of public spending, or 12p per day for the average taxpayer:

That amount of money will not save the NHS or end austerity. Anyway, as the independent Institute of Fiscal Studies has pointed out, even a small drop in economic growth as a result of Brexit would have a much bigger impact for the UK government’s budget – and therefore taxpayers – than the UK budget contribution to the EU.

Sovereignty

The Leave side have argued that the UK needs to leave the EU to be a ‘sovereign’ country. But as pointed out here, decisions on new EU laws aren’t made by EU Commissioners, but by elected ministers from each EU country and elected Members of the European Parliament. Moreover, the UK has voted in favour of 95% of EU legislation:

As for the proportion of UK laws which come from the EU, the House of Commons has estimated that it’s only 13%. That doesn’t include EU regulations, but as pointed out here, most EU regulations aren’t laws in the ordinary sense, but administrative decisions. So if you counted also all the administrative decisions made in the UK as well (like every approval of longer pub opening hours, or home extension), the proportion of British laws coming from the EU would still be small.

Anyway, the key test for sovereignty is not the percentage of UK laws that come from the EU, but the percentage of UK laws that were imposed on the UK against our will by the EU. It’s ridiculous to say that UK laws which were already on the books, or which we agreed to change at the same time as other Member States, are an invasion of sovereignty.

Applying this test, since the UK voted for 95% of EU law, the percentage of UK law imposed against the UK’s will is only 5% of those 13% of national laws which come from the EU – or 0.65% of the statute book. Even if you believe the claims of some on the Leave side that 60% of UK laws come from the EU, the percentage of our laws that were imposed against our will by the EU would only be 3%. So the sovereignty issue has simply been hugely exaggerated by the Leave side.

Immigration

The Leave side have argued against the level of immigration to the UK. But as I have pointed out in detail here, the majority of those coming to the UK are non-EU citizens, where the UK controls the numbers. That’s demonstrated by this graph:

EU law does govern the number of EU citizens who come to the UK. But they can’t stay unless they have a job or are self-sufficient. The UK can (and does) deny them social benefits until they have worked here for a time; and the UK’s renegotiation deal will allow us to deny them key in-work benefits as well. The UK can (and does) expel or refuse entry to EU citizens who pose a security risk or who have a criminal record too.

Non-EU citizens do try to enter the UK from the EU, but they would do that even after Brexit, since it wouldn’t alter the law in any way on this point. In fact, after Brexit the UK would no longer be part of the EU’s Dublin system for sending asylum-seekers back to other EU countries, so in some respects migration control would be harder, not easier.

There’s a clear trade-off between EU migration and the economic benefits of EU membership. As the Leave side points out, countries like Norway and Switzerland are wealthy outside the EU. But they’ve also signed up to free movement of people with the EU, and have a greater share of migrants in their population than the UK does.

Is there a left-wing case to leave the EU?

Some on the left-wing side of British politics believe there is a left-wing case to leave the EU (a so-called ‘Lexit’). There’s an obvious flaw in their logic: there’s no ‘Lexit’ box on the ballot paper. A Brexit vote tomorrow would not deliver a left-wing government to office. Rather, as Owen Jones, Paul Mason and George Monbiot have pointed out, it would shift power to those on the right wing of the Conservative party who favour austerity and loathe the NHS.

Although, as noted above, those same people have announced their intention to scrap environmental and employment laws after Brexit, Lexit supporters plan to rely on the kindness of Tories to protect those rights. Never in the course of human history have so many left-wingers had so much faith in their traditional opponents – with so little reason to do so. If you want a vision of the future after Brexit, imagine Iain Duncan-Smith fist-punching – forever.

Conclusion

Of course, the UK has many problems. But the question is, which of those problems would actually be solved by leaving the EU? Our EU contribution accounts for 1% of public spending, and EU laws which we didn’t vote for make up a tiny proportion of our statute book.

Rather, it was our government that decided to implement austerity cuts. Our government decided to reorganise the NHS. Our government brought in a bedroom tax, and planned cuts to disability benefits, while cutting income tax for high earners. Our government nearly tripled university tuition fees (in England). Our government reduced trade union rights, hiked industrial tribunal fees, and encouraged zero-hour contracts – and sets the level of the minimum wage.

Our government sets rates of income tax, national insurance contributions, inheritance tax and company tax, and controls what local governments charge as council tax. EU law sets minimum rates of VAT and excise tax, but the government voted for those laws (it has a veto on EU tax law), and anyway our government has set the rate of those taxes well above the EU minimum.

Our government decides on how much to spend on pensions, on other benefits, on the NHS, on schools, on roads, on housing, and on foreign aid – on everything except the 1% of the government spending that goes to the EU. Our national debt stems from our government’s decisions on how much to spend, compared to how much to tax.

Simply put, our government controls nearly every decision that affects the UK, including the majority of migration to the UK. There’s no point voting to Leave based on any of those decisions which are within our country’s control.

The case to Remain in the EU is that it enhances our country’s strengths. Membership gives us a guarantee of trade with our largest market, and 50 other countries besides. It guarantees continued cooperation on policing and criminal law, and continued protection of workers’ and environmental rights.

Outside the EU, there are no guarantees – only risks. The economic risks that trade and investment are reduced. The security risks that we have less cooperation with police and prosecutors in the EU. The social and environmental risks of fewer protections for workers and the environment.

And this would all be for an illusory gain of sovereignty: when our EU contribution accounts for 1% of public spending; when we vote for 95% of EU laws; when at most 3% of our laws were imposed upon the UK against its will by the EU. In effect, the Leave side want to cut down a forest because they don’t like one tree.

The best way to ensure economic growth, while retaining other benefits of EU membership, with only marginal impact on our sovereignty, is to vote to Remain in the EU. 

Photo credit: newlovetimes.com

Referendum Briefing 3: Does the EU have a ‘democratic deficit’?

Laurent Pech, Professor of Law, Middlesex University

Steve Peers, Professor of Law, University of Essex

The EU is regularly accused from suffering a ‘democratic deficit’. In particular, it is often asserted that all EU decisions are made by the EU Commission – who are ‘unelected bureaucrats’.  

As we demonstrate in this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – and more generally how decisions are made in the European Union; and (b) the way in which the European Commission gets into office. We will examine each of those issues in turn.

Who does what? Does the Commission adopt all EU laws?

The crucial thing about the EU system is that the Commission does not have anywhere near as much power as many people think it has. The standard EU’s decision-making process is: the Commission alone makes legislative proposals. Those proposals are then considered by the Council (the intergovernmental body representing elected national governments), jointly with the elected Members of the European Parliament (representing EU citizens), whose powers have been gradually and significantly increased over the last three decades. Some people say that the Council and European Parliament simply rubber-stamp Commission proposals, but that is not true: they sometimes reject them and almost always amend them.

This graph illustrates the EU decision-making process:

 

In addition, national parliaments have seen their involvement with the EU’s decision-making process formally recognised and all draft legislative acts, for instance, must be forwarded to them. If enough national parliaments object to an EU proposal, it must be reconsidered (a so-called ‘yellow card’). The UK’s renegotiation deal says that if enough national parliaments object to a proposed law, it will be rejected (so-called ‘red card’). Any major changes to the EU (new Member States, new Treaties) have to be approved by national parliaments.

Overall guidance on what policies the EU should take comes not only from the Commission but also from the European Council – the EU body made up of Member States’ Prime Ministers and Presidents, such as Cameron, Hollande and Merkel. When they call for the proposal of an EU law on an issue the Commission usually reacts quickly. The Council and European Parliament can also ask the Commission to propose laws.

Although a lot of EU decisions are made by a ‘qualified majority’ in the Council (meaning they need 55% of the Member States with 65% of the population to support them), there is a tradition of seeking wide consensus. So – as the graph at the top of this blog post indicates – the UK has in recent years voted in favour of 95% of EU laws.

Once an EU law is adopted the Treaties say that implementation powers are left in principle to Member States. So it’s up to national authorities to apply most laws which Member States have agreed in the EU. As an exception the Commission has powers in a few cases to adopt some detailed further rules to implement the technical details of an EU law which was already agreed, so that the EU law applies in the same way in all Member States. But the Commission’s use of such powers is controlled by Member States and the European Parliament, who can block such draft technical measures. This is similar to the process in most national systems – including the UK, where the government drafts ‘Statutory Instruments’ which the House of Commons or House of Lords can block.

This system is a complex one because it has to reflect several and sometimes competing objectives such as the necessity to ensure the fair treatment of all Member States from the largest to the smallest. Member States insist on retaining their control over the EU’s decision-making process to democracy at the national level, and democratic legitimacy at EU level is reflected by the strengthening over time of the legislative, budgetary and supervisory roles of the European Parliament whose position as a ‘co-legislator’, jointly with the Council, is now firmly established. It is because the member states believe that their national interests were and continue to be better served by an independent Commission with atypical powers (e.g. the Commission’s monopoly on legislative initiative or its enforcement powers) that the Commission’s role, functions and powers have been left essentially unchanged since the Treaty establishing the European Economic Community of 1957.

To argue that such the EU’s system of governance is not democratic illustrates a failure to grasp that, in fact, the EU’s institutional framework has been specifically designed not to function on the basis of a mere majority rule but on the contrary, as an highly consensual system where nothing of importance can be agreed without the joint consent of the Commission, Parliament and Member States’ governments in the Council.

With respect to the Commission, critics quite often point out that it alone has the right of legislative initiative, meaning that legislative acts may be adopted solely on the basis of a Commission proposal. However, they usually fail to point out that, as noted above, EU leaders often ask for the Commission to propose a new EU law; both the Council and the Parliament have the formal power to ask the Commission for a proposal; and the Council and the Parliament must adopt proposals from the Commission for them to become law.

In practice, the annual work programmes adopted by the Commission are in any event devised in the light of a process of intensive and continuous dialogue with the European Parliament and the Council. One may also note in passing that at the national level, bills tend to be written by civil servants working for ministerial departments. In the UK, in practice Private Members’ Bills cannot be adopted unless the government wants them to be.

Finally, a word about EU judges. They are often described as ‘unelected’ – but of course judges in the UK and most other countries are unelected as well. In fact, the UK has a veto over the appointment of EU judges. So none of them can take up their jobs in the first place or keep their jobs (appointments are reviewed every six years) without the UK government’s approval.

The European Commission

It’s simply inaccurate to describe the Commission as ‘unelected’. Rather, like many national legislative bodies, it is elected indirectly – meaning that it is appointed by people who are directly elected. A candidate for President of the Commission is selected by the national Heads of State and Government (each democratically accountable to their own Member State), taking into account the results of the elections to the European Parliament. In other words, the choice of the Commission President is based on which party got the most seats in the European Parliament elections – just as the choice of the UK Prime Minister is based on who gets the most seats in a UK general election. (The Annex to this blog post shows how the Commission is appointed in graphic form - compared to the UK).

Moreover, starting from the current Commission (which took office in 2014) the candidates for Commission President had actually been nominated by European political parties in advance. So voters could make a judgment on which potential Commission President they preferred when they cast their vote in European Parliament elections – just as they can do the same for potential Prime Ministers when voting in a UK general election.

This allows a connection between the voting choices made by citizens all across the EU in the European Parliament elections with the political colour of the selected candidate to the presidency of the Commission. The nomination of the President must be further approved by a majority of those elected Members of the European Parliament. For those who ask ‘how can I get rid of the Commission President?’, the answer is simple. He got that job in the first place because of the results of the European Parliament elections. If he runs again to be Commission President and you don’t want him to keep the job, don’t vote for his party (or for another party that would back him).

Then the remaining members of the Commission are each proposed by Member States’ elected governments, and as a body, they must be subject to a vote of approval by the European Parliament. Prospective commissioners are also subject to individual questioning by the appropriate European Parliament committee prior to the European Parliament’s approval.

How can voters vote out the European Commission as a whole? They don’t get to vote on the entire Commission – but that’s because the appointment process defers to Member States. People criticise the EU for not being a democracy, but in many ways it is an international organisation. We don’t usually expect international organisations to be democratic as such; rather their accountability comes from national governments’ participation in them. So we don’t get to ‘vote for NATO’ or ‘vote for the UN Security Council’; we vote for governments that represent us in those international institutions. Similarly, a vote in a British national election determines the political background of the British Commissioner: the current Commissioner is a Conservative, and the previous one was Labour.

Some argue that Commissioners and/or its President must be directly elected. The idea of direct election for the president of the European Commission however reveals not only a misunderstanding of the Commission’s role (it is not supposed to act as the government of the EU) but also a lack of understanding of how national Heads of State or Government are appointed. For instance, there is no actual direct election for selecting the Prime Minister in parliamentary regimes like the UK.

The Prime Minister would certainly be locally elected as an MP – like David Cameron is in Witney. Yet, he or she will become Prime Minister, strictly speaking, on the sole ground of being the victorious leader of a political party, which selected that leader beforehand, without asking citizens’ opinion. We also had examples in the UK of seeing an MP being coroneted PM without a general election being organised (Brown, Major and Callaghan, just in recent years).  In other words, it is wrong to assume that electors directly decide on the identity of the Prime Minister; rather they select the leader of the country from a pool of names put forward by political parties. This is essentially equivalent to the appointment of the EU Commission.

Similarly, it is also wrong to assume that national cabinet ministers (equivalent to the rest of the Commission) are always elected officials. This is for instance the situation in France where anyone can be appointed minister without having ever been elected to the national Parliament or to a local assembly. The UK cabinet has ministers from the unelected House of Lords. Even worse, in a multi-party system, as opposed to a two-party system, the citizens may find themselves with a government that does not represent the most popular political party, but which is the fruit of arrangements made between political parties after the elections are held – like the UK coalition government between 2010 and 2015. With these examples in mind, the selection and appointment of Commissioners by the European Council and the European Parliament cannot be said to be less ‘democratic’ nor less ‘transparent’ than the equivalents in the UK or other Member States.

Furthermore, it’s possible for the Commission to be dismissed by the European Parliament – just like the UK’s House of Commons can pass a vote of non-confidence in a government.  However, it’s true that this power has never successfully been used. Does the EU suffer from a comparison with the Member States in this respect? Not quite, as the power to dismiss the government has simply been lost at national level for a range of reasons: fixed election dates, the so-called rationalisation of parliamentary rules and a more disciplined partisan system. In the UK, for instance, we only have one example of a government brought down by a motion of no confidence since World War II.

Conclusion

At the end of the day, the European Union’s institutional architecture and decision-making process merely reflect the twofold legitimacy of the EU as a union of States and of citizens on which competences have been conferred to meet common objectives. In other words, the legitimacy of the EU’s institutional architecture flows from two sources: the Member States, which are represented at the EU level in the European Council by their Heads of State or Government and in the Council by their governments which are democratically accountable to their national Parliaments, and the European Parliament, which is directly elected and represents European citizens.

In this context, the highly consensual and arguably cumbersome process governing the selection and appointment of the Commission may be perhaps better understood and justified. If anything, one may even argue that it would be unwise, and one may even say undemocratic, to push for a complete ‘democratisation’ of the Union’s institutional architecture and organise the transformation of the Commission into something akin to a national government. Indeed, and contrary to popular wisdom, the strict implementation of a purely majoritarian system and the direct transplantation of the mechanisms associated with the national model of parliamentary democracy would, in all likelihood, undermine the EU’s legitimacy due to the ‘thin’ character of the European Union’s sense of collective identity.

The resulting original system of government could be a hard sell to the man on the street, as it may differ from his instinctive (and, in most cases, idealised) understanding of what a democracy is or how one’s democratic system actually works. It may, nonetheless, be defended in the name of democracy, one where the value of consensus trumps the majoritarian features classically associated with the Westminster model of parliamentary or representative democracy. This is not to say of course that there is no room for improvement when it comes to the democratic life of the EU.  It remains however ludicrous to describe the EU as an undemocratic ‘superstate’. For all its imperfections, the EU may actually offer the chance of political leadership at a level where the social impact of globalisation could be democratically and effectively managed. One may only that hope that people remember, to paraphrase Voltaire, that the best can quite often be the enemy of the good.

Graphics credits: The Conversation (Council voting); tasc.ie (EU decision-making); uktostay.eu (Commission appointment)

Annex: Appointing and dismissing the European Commission