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Self-Rule in the 21st century: How UK Citizens Lose Influence Through Brexit

Self-Rule in the 21st century: How UK Citizens Lose Influence Through Brexit

 Christina Eckes (University of Amsterdam)

‘Take back control’ was the slogan of the vote leave campaign in the Brexit Referendum that was, at its heart, driven by concerns over self-rule for UK citizens. Theresa May’s famous Brexit speech painted an image of ‘a truly global Britain’, with a clear focus on bold and ambitious trade relations around the globe. It seems convincing that for citizens to determine their own living and working conditions in an economically closely connected and interdependent world, they must have a real say over international trade agreements that govern far more than just economic relations between countries. The question is only whether Brexit would give UK citizens a greater say over international trade.

Within the European Union the need for citizens to be able to have a voice in international relations and trade in particular is acknowledged in the ever-greater influence of the European Parliament over both. In every amendment of the EU Treaties, the United Kingdom and all other Member States unanimously decided to confer more external powers to the Union and strengthen the influence of the European Parliament over the exercise of these powers. As a result, the Union can make its case that it offers citizens a legal and institutional structure for self-rule in a globalised world better than ever and that, in the 21st century, self-rule of EU citizens in a globalized world forms part of the very purpose of its existence.

The EU is a global heavy weight in terms of market power, unmatched by the United Kingdom (e.g, 13% of the EU’s population) or any other Member State. It is listened to in international trade negotiations and concludes more comprehensive and detailed trade agreements than ever. At present, the Union has trade agreements with 77 countries. The trend is growing, including as a result of President Trump’s protectionist trade agenda. 15 of these trade agreements were concluded by the Juncker Commission.

The European Parliament must consent to the conclusion of trade agreements and be informed about the negotiations. Parliament has further been very adept at exercising these formal powers, for example by rejecting controversial international agreements, bringing challenges before the Court of Justice to confirm a favorable reading of its formal prerogatives, concluding inter-institutional agreements on timely and comprehensive access to information, and extending its influence informally behind the scenes.

Parliament’s new role in the conclusion and negotiation of international agreements has allowed it to openly and externally contest the position of the other EU institutions by rejecting high profile agreements, such as in 2009 the SWIFT agreement making European financial information available to US counter-terrorism authorities and in 2012 Anti-Counterfeiting Trade Agreement (ACTA) establishing international standards for intellectual property rights enforcement. More importantly, while its Treaty powers are formally focussed on the final stage of actual conclusion, informally, Parliament has been able to exercise considerable influence on the content of post-Lisbon international agreements of the EU. Examples are the failed Transatlantic Trade and Investment Partnership (TTIP) and the EU’s recent trade deal with Japan. Parliament expressly recalled in the context of the TTIP that it would have to give consent to the agreement and made specific recommendations to the Commission and also to the Member States that contained among other things, the exact building stones of the Commission’s 2015 proposal to introduce an Investment Court System (ICS). In the negotiation of the EU-Japan trade agreement, the European Parliament was engaged from the very first scoping phase until the conclusion. It repeatedly emphasised the relevance of labour rights and environmental standards in particular, which found their way in a stringent formulation into the final text.

In other words, the European Parliament is not side-lined in the conclusion of EU international agreements. The practice has allowed it to exercise its powers over the content of EU international agreements affirmatively and constructively – beyond the formal meaning of consent.

Importantly, the political system of the EU, which is more similar to the US presidential system than to a parliamentary system, arguably vests the European Parliament with greater powers than UK Parliament and most other national parliaments. In parliamentary democracies, the particular relationship between governments and parliaments is characterized by support of the majority of parliamentarians for the government in office. This makes effective control by the majority politically less likely and the majority logic of parliaments makes it difficult for the opposition to exercise effective control. Majorities and political powers in the European Parliament are by contrast disconnected from national representation in the Council, which shifts in terms of political spreading more frequently. Parliament is, as a consequence, institutionally in an excellent position to substantiate and make visible its ability to act as an opposition and control the Council. It represents individuals as EU citizens and gives them an independent voice by drawing on a source of democratic legitimation that is independent and separate from the EU Member States. Different from the UK Parliament and other national parliaments, it can even position itself in opposition to national governments.

This is not to say that there are not particular problems with the representation of EU citizens through the European Parliament. International relations generally remain the domain of the executive. The European Parliament is subject to the same relevant and stringent constraints as national parliaments within Europe in terms of scarcity of time and resources. However, the main obstacle to making representation through the European Parliament effective: citizens have difficulty identifying with EU structures and with their role as EU citizens in a similarly meaningful way as they do with their role as national citizens. Yet if citizens realised the potential of the EU structures for exercising influence over international trade this might contribute to taking their role as EU citizens seriously.

When the Union concludes international agreements, individuals lose democratic control as UK citizens through the UK Parliament and gain democratic control as EU citizens through the European Parliament. This is where the distinction of individuals as EU citizens and as national citizens come in. Jürgen Habermas developed this concept of ‘divided sovereignty’, in which the very same citizen acts in two capacities, namely, as citizen of their state and as citizen of the Union.

The combination of the EU’s great market power and its exclusive trade competence on the one hand and the extended influence of the European Parliament and its institutional potential of representing citizens on the other, gives individuals better democratic control over the conclusion of international agreements through the European Parliament than through their UK parliament. In other words, institutionally individuals are better represented as EU citizens, that is via EU channels, than as national citizens, when the conclusion of international trade agreements is concerned. This also leads to the conclusion that Brexit from the perspective of the individual (rather than the UK Government) plays out as losing influence in an interconnected globalized world.

Christina Eckes is professor of European law at the University of Amsterdam and director of the Amsterdam Centre for European Law and Governance (ACELG).

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