Those on the left who supported the restoration of the UK’s democracy and legal integrity through leaving the EU, need to keep making the left case for remaining independent and never again being subjugated beneath the EU’s political, legal and economic hegemony. Perhaps the most important reason for never re-joining is the Court of Justice (ECJ) and its long history of eschewing of the principles of democratic socialism. No honest democratic socialist could ever consider the UK being subject to the ECJ’s jurisdiction (once more) as consistent with democratic socialist principles.
Re-opening the healing wound
Despite the UK’s membership of the EU only terminating last month, a campaign to get the UK to re-join is already beginning to take form. With leading Remainers already planning and articulating strategies for the UK’s re-absorption into the organisation it has just left.
It seems that the right in UK politics has largely accepted the UK’s new position as an independent country, outside the EU. If there were any lingering doubts about whether the Conservative Party and the right more broadly in the UK should re-consider, the recent election result will have dispelled them. Within the Conservative Party and among its institutional hinterlands the issue is now patently ‘settled’. The position of the Labour Party is less clear. For example, the on-going leadership election has not involved any extensive analysis of Labour’s Brexit policy mistake, nor any apology for such a profound miscalculation. Keir Starmer – the favourite to win the Labour leadership race – still considers Labour’s policy on Brexit at the election, to be the right one. Suggesting a reluctance to fully ‘let go’ of the EU.
However, the position is more worrying than a lingering emotional attachment to the EU making the psychological transition for many Labour politicians difficult. Prominent EU supporters see the Labour Party as the best vehicle for re-entry.[i] Certainly, the membership of the Labour Party will stay sympathetic, even actively in-favour, of the EU. So too will the Labour Party’s institutional hinterland in the Trade Unions, think tanks, ‘big charities’, the legal profession, academia, the education system etc. Consequently, the Labour Party will remain a potential vessel for taking-up the re-join mantle for a long-time to come.
Of course, any evolution towards becoming a re-join party would not happen overnight. Rather, it would emerge over a period of years. No doubt at first the ‘forces of re-join’ would consolidate their position in the Labour Party. Then, gradually, they would work to turn the party’s policy towards a re-join position. As Ian Dunt argued in a piece for Politico:
if….[Remainers]…hang back and adopt a more realistic timetable, they have every chance of leading a successful campaign to rejoin the bloc within the next decade…That requires a Labour Party that, while not actively in favo[u]r of rejoining the EU at the moment, remains fundamentally pro-European…It is perfectly believable that Labour can head into the election after next with a policy for EU membership.[ii]
Sadly, it is not difficult to imagine that among many on the left, re-joining will become a policy to be vigorously pursued because of its emblematic nature in the context of on-going tendentious debates about culture, reflected to some degree in the UK’s shifting political cleavages. Further, those who are pro-EU will be prepared to play the ‘long game’, as they did through the 1950s and 1960s, in order to eventually get the UK into the then EC, in 1973. Increasing the risk further as those who are opposed to re-joining drift away, in the next couple of years, from the EU debate and time, effort and resources are redistributed towards other issues.
The battle to stay out of the EU is only just beginning. Therefore, those on the left who supported leaving and oppose the UK’s membership of the EU, need to stay alert, need to keep the intellectual case against re-joining prominent on the left, gnawing away at the pro-EU arguments and consequently the cultural hegemony over the left that re-joiners already, too some degree, have in place and will look to consolidate and build upon.
The key reason for staying out of the EU is one that, disappointingly, never got the airing it deserved in the referendum debate, among those who are democratic socialists and social democrats. That reason is the actively hostile – to democratic socialism – Court of Justice of the European Union (CJEU or ECJ). This ‘hole’ in the debate has always been a curiosity because the ECJ is the most powerful of all the EU institutions and has undoubtedly played the central role in building the EU into what it has become: a nexus of supra-national institutions (and interests) with hegemony over subservient member states ultimately pursuing the single goal of an opaque and unaccountable transnational neo-liberal government.[iii] If the UK were to re-join, the country and its political and legal institutions would once again fall under the judicial imperialism of the Court of Justice.
Democratic socialism is made-up of a-number of irreducible principles which have clear implications for practical political action. These principles are:
- The ‘rule of law’; and
- Equality, solidarity and community.
They stand in contrast to the atomising individualism, indifference to – often the promotion of – commodification and the imperative towards technocracy embodied in neo-liberalism.
If an individual or institution abrogates the principles that underpin democratic socialist politics that individual or institution is, by definition, antithetical to democratic socialism. Over six decades, the Court of Justice has explicitly negated each of the principles listed above, in order to play the role that it has, in building and sustaining the EU’s legal order.
Democracy and democratic culture
The first irreducible principle is ‘democracy’. As the socialist thinker R H Tawney highlighted, democracy is a ‘culture’[iv], based upon citizenship and the inherent equality of people who have the power to decide their political and economic destiny. Tawney was echoing his predecessors in the ‘radical tradition’ of this country (embodied in characters such as Overton and Lilburne, Wilkes, Cobbett and Paine and movements such as the Chartists) which held that political power must lay with the people. It is sometimes referred to as ‘popular sovereignty’. Ultimately it is the principle that the people have the authority to determine their own political and economic destiny, without external constraint.
The Court of Justice has repeatedly shown its contempt for democracy. It has – through its jurisprudence – awarded the EU’s legal order the position of being the ‘supreme law’ for 28 countries and therefore stripped the democratic (and legal) institutions in the member states of their power. This process has been neatly summed up by Court of Justice scholar Alec Stone-Sweet, as a judicial coup d’etat.[v] Echoing Tony Benn’s famous description of what EU membership meant for the UK’s democracy.
Thanks to EU legal supremacy, the technocrats, jurists and lobbyists in and around the EU are able to exploit the vague and open-ended EU Treaties and exercise unaccountable law-making power over swathes of policy areas that member state electorates, assemblies, parliaments and courts cannot prevent, amend or reverse. The result has been a severing of the connection between the electorate and governing institutions i.e. their ability through voting and debate to hold decision makers accountable, change (across both major and minor areas) policy and have their principles and policy preferences, e.g. over ideas of ‘justice’, reflected in the government that governs them.
Consequently, the electorates of the member states have come to live in what might be called ‘residual democracies’. In these traduced polities, their political and legal power only extends to the ‘left-overs’ i.e. those areas of policy that the EU has not yet decided to exercise its supreme legal authority-over and which do not contradict existing EU law and legal principles or that are so obviously outside the purview of the Treaties that it would be impossible for the most activist court to claim they fell under its jurisdiction. These areas are few and getting fewer.
The ‘rule of law’ and democratic socialism
The second principle is the ‘rule of law’. Once described memorably by the radical historian E P Thompson as ‘an unqualified human good’[vi] and by R H Tawney as imperative to securing the primary and essential freedoms of people in a democratic culture.[vii] However, the ECJ – in its role as ‘Master of the Treaties’[viii] – has regularly undermined the ‘rule of law’. Rather than an independent adjudicator ensuring certainty and predictability in the rules, it has acted as a policy-making Star Chamber pursuing political ends. Chasing political goals rather than behaving impartially and predictably and ensuring certainty and stability is the behaviour of a despotic institution.
Fealty to the principle of the ‘rule of law’ was jettisoned in the Court’s early years as it took an activist approach to its work e.g. the two most important aspects of the EU, which make it categorically different to other multilateral organisations – the supremacy of EU law[ix] and its direct effect[x], were created by judicial fiat. Neither were legal principles in the original Treaty of Rome agreed by the signatories.[xi] Once in-place these enabled – through subsequent case law – the consolidation and expansion of the EU’s supreme legal order and steady subjugation of the democratic processes within the member states and the erosion of the jurisdiction of domestic law. Examples of this jurisprudential ‘growth’ include, but are not limited to, the cases of
Les Verts (1986), Chernobyl (1990) and Francovich (1991) [where there was] little or no foothold…to be found in the Treaties for any of the decisions reached. In…Francovich…[the Court of Justice created the doctrine of]…liability of Member States for violations of EC law. All previous attempts at codifying such a rule having failed, the ECJ was happy to proclaim it a principle actually already ‘inherent’ in the Community legal order.[xii]
The Court of Justice has gone further than making-up new legal principles to suit its political agenda, it has actively ignored explicit prohibitions on actions by the EU, in order to aid help the EU continue to pursue its desired policies. In the Gauwiler judgment the politics of the Euro and ‘propping up’ the Eurozone economy took precedence over explicit injunctions in the Treaties against ‘monetary financing’.[xiii] In other words, clear limitations on the competences of the institutions in the Treaties of the EU were thrown aside for politics and its own benefit.
The radical historian E.P Thompson set out the key ingredients for a democratic socialist rule of law. He stated that for there to be a genuine ‘rule of law’ there needed to be a stable framework putting limitations on the exercise of power, with rules ‘exactly defined [based upon] consensual assent and subject to interrogation and reform’.[xiv]
Life under the Court of Justice does not meet any of Thompson’s criteria. On the contrary, the Court actively violates each of his conditions:
- Its rulings and therefore the law it creates are immune to ‘interrogation’ and ‘reform’ because of its ‘mastery’ of the Treaties and supremacy of the EU’s legal order.
- It adjudicates on the limits of its own powers (i.e. the jurisdiction of EU law and the EU’s institutions) and, as has been illustrated, the ECJ rarely constrains power but frequently expands the EU’s powers.
- There is no process for ensuring the judge-made law of the ECJ has ‘consensual assent’. Its absence is particularly notable when the Court of Justice makes sweeping constitutional changes, with wide-ranging consequences for the member states and their constitutional orders, through the technicalities of judicial decision-making.
The EU’s neo-liberal constitution
The political and legal developments described in the preceding two sections have enabled the Court to play a central role in establishing the EU’s Internal Market by ‘constitutionalising’ a neo-liberal political economy across all 28 member states.[xv]
Neo-liberalism valorises values that are anathema to democratic socialists. The former promotes the expansion of economistic utilitarian values into many aspects of political, social and cultural life and is relaxed about ‘justice’ being determined by market interactions, with little attention paid to issues of power and privilege with little time for alternative values such as solidarity and equality.
As a result of the Court of Justice’s strangulation of democracy and voiding of the ‘rule of law’ it has elevated neo-liberal tenets into constitutional principles, imposing upon the member states the dis-embedding of capitalism from its national moorings and creating a transnational space for capitalistic processes to function more freely and intensely.[xvi] As part of the process of ‘constitutionalising’ neo-liberalism and negating principles of equality and solidarity, the Court has made specific judgments which:[xvii]
- Attack collective bargaining, the terms and conditions of workers and the ‘right to strike’.
- Enable (and de facto encourage) tax avoidance (not least by undermining the powers of national tax authorities).
- Constrain the influence of governments over industry.
- Drive the marketisation of public services; and
- De-regulate goods and services markets.
If the UK were to re-join the EU it would be irrelevant whether the UK’s electorate wanted the economy run along democratic socialist lines. If – at the point of re-accession – it was already being so run, the UK would soon find its democratic socialist model of political economy being un-wound, due to the unlawfulness of many policies under the EU’s neo-liberal legal order.
To claim to be a democratic socialist and support re-joining the EU (and falling under the arbitrary ani-democratic neo-liberal authority of the Court of Justice) is paradoxical to put it at its politest. It would certainly be a profound example of cognitive dissonance. Ultimately, the only conclusion for an intellectually honest democratic socialist is that the UK must never return to the jurisdiction of the Court of Justice and thus membership of the EU.
Democratic Left Network (DLN)
DLN are a loose association of left leaning individuals (from a variety of backgrounds) established to help put the left case for leaving the EU (Lexit) during the 2016 referendum campaign. They continue to blog from time-to-time, at: https://www.democraticleftnetwork.com/ and tweet at: https://twitter.com/demleftnetwork?lang=en
[i] Dunt, I. How Britain rejoins the EU — in a decade’s time. (2020). Accessible at: https://www.politico.eu/article/how-britain-rejoins-the-eu-in-a-decades-time/
[ii] Dunt, I. How Britain rejoins the EU — in a decade’s time. (2020). Accessible at: https://www.politico.eu/article/how-britain-rejoins-the-eu-in-a-decades-time/
[iii] Leonard, M cited in Booker, C and North, R A E. The Great Deception: can the European Union survive, 3rd edition. (2016). P 1.
[iv] Tawney, R H. Equality. (1931).
[v] Stone Sweet, A. The Juridical Coup d’État and the Problem of Authority. Vol. 08 No. 10. (2007). P 924.
[vi] Thompson, E P. Whigs and Hunters: The Origins of the Black Act. (1975). P 266. Cited by Cole, D H. An Unqualiifed Human Good: E P Thompson and the Rule of Law. Journal of Law and Society. Volume 28. No 2. (2001). P 182.
[vii] Tawney, R H. Equality. (1931). P 227.
[viii] Alter, K ‘The European Court’s Political Power: the Emergence of an Authoritative International Court in the European Union’ (1996) and Alter, K. ‘Who Are the Masters of the Treaty?: European Government and the European Court of Justice’. (1998). Cited in Alter, K. ‘The European Court’s Political Power: selected essays’. (2010).
[ix] Case 6/64 Costa v ENEL  ECR 585.
[x] Case C-26/62 Van Gen den Loos v Nederlandse Administratie der Belastingen  ECR I
[xi] de Waele, H. The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment. Hanse Law Review, Vol 6, No 1. (2010). P 5.
[xii] de Waele, H. The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment. Hanse Law Review. Vol 6. No 1. (2010). Pp 5-7.
[xiii] C-26/ 14 Peter Gauweiler and Others v Deutscher Bundestag .
[xiv] Thompson, E P. The State of the Nation. In Writing by Candlelight. (1980). Pp 230-231. Cited in Cole, D H. An Unqualified Human Good: E P Thompson and the Rule of Law. Journal of Law and Society. Volume 28. No 2. (2001). P 188.
[xv] Nicol, D. The Constitutional Protection of Capitalism. (2010). Pp 90 – 94.
[xvi] Scharpf, F W. The asymmetry of European integration, or why the EU cannot be a ‘social market economy’. Socio-Economic Review. Vol 8. (2010). P 211.
[xvii] This is not a comprehensive list of the areas where the Court of Justice has made rulings that enforce a neo-liberal approach. There are many others, including in areas such as: corporate governance, procurement and state aid.