Richard North, 23/08/2020  

Last week, retailing some of my ongoing work to revise The Great Deception, I was looking at Cameron's "veto" in December 2011, when he supposedly blocked a treaty that didn't actually exist.

But, with Cameron indicating that he would not allow the use of EU treaties to produce an updated Stability and Growth Pact, the colleagues simply by-passed him and went for an intergovernmental treaty between eurozone members (and others), which they called the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (known as the Fiscal Compact). This was signed in March 2012 but then had to be ratified by its signatories.

In Germany, this process – along with the ratification of the ESM treaty – immediately ran aground when the executive board of the association Mehr Demokratie eV - together with more than 12,000 citizens - raised a constitutional complaint against the ratification instruments passed by the German parliament.

This took the form of an application for an injunction aimed at prohibiting the Federal President from signing and executing the laws passed by the Bundestag and Bundesrat on 29 June 2012, until the case had been heard by the constitutional court.

With the application lodged, the President in any event decided to hold off signing, leaving the EU's core strategy for dealing with the euro-crisis completely adrift. Had the court granted a permanent injunction, it would effectively have blocked the EU's bailout strategy and potentially caused the single currency to collapse.

In the event, the court found for both the ESM and the Fiscal Compact, with an interim judgement in July and a final ruling in September.

With Barroso in full flow in the European Parliament in Strasbourg at the time the judgement was published, delivering his "State of the Union" report, proceedings were temporarily paused for the news to be announced – to cheers from the assembled MEPs.

The detail of the judgement need not trouble us here, but what I found fascinating was an almost throw-away comment at the end of the (very long) press release, concerning the Fiscal Compact. Although this imposed specific rules on the Federal Government in respect of policy, the Court ruled that this did not make it unconstitutional.

In effect, sovereignty was not breached because the commitment to pursue a specific budget policy was not "irreversible".

It is true, the Court said, "that the Treaty does not provide for a right of termination or resignation for the Contracting States". It is, however, it continued, "recognised under customary international law that the resignation from a treaty by mutual agreement is always possible".

Furthermore, it continued, "unilateral resignation is at any rate possible in the event of a fundamental change in the circumstances which were relevant upon the conclusion of the treaty".

Several points emerge from this. The first was that the phrasing was quite evidently taken from the Vienna Convention on the Law of Treaties. But here, the court was asserting that this was "customary law", having thus acquired its own standing and applying to nations which were not party to the convention.

But the absolutely key point was that, although Germany was signing up to a treaty which imposed specific duties on the government, this did not breach sovereignty because there was always the option of "unilateral resignation".

The implications for the UK, and the rhetoric attendant on Brexit, are obvious. As long as the UK, as a member of the European Union, had the option of leaving, ultimately there was no breach of sovereignty. In the final analysis, we were members of the EU not through any compulsion but because (our) parliament permitted it.

This, of course, knocks into a cocked hat the EU pundits who so glibly talked about "pooling sovereignty". Sovereignty is indivisible – you either have it, or you do not.

These people failed to understand the difference between sovereignty and power. We can share power, which is precisely what we were doing and, in some cases, that does make us stronger. In other cases, it makes us weaker, so there is obviously a trade-off.

I wish I'd known about the detail of this judgement when I wrote this piece on the eve of the EU referendum. I think I might have referred to it then.

But I had written about sovereignty a few days earlier when I asserted that I didn't accept that the UK either pooled its sovereignty with the EU, or had lost sovereignty to it.

My thesis was that the UK, even as a member of the EU, was still technically a sovereign state. Thus I did not accept or buy into much of the "leave" rhetoric about the need to regain our sovereignty. We still had it – just as we have it now.

Here, I took sovereignty to mean "The full right of a body to govern without any interference from external body". The defining words were "full right" – akin in earlier terms to "divine right".

No definition, in my view, was complete without acknowledgement that sovereignty is a right, an absolute right to govern. It is one that is innate. It cannot be challenged, diluted or "pooled". And as long as we had the right to leave the EU, we were a sovereign power.

The issue, of course, still keeps its relevance even after we have left the EU, and should be shaping our attitude to the "future relationship" negotiations. There, so much of what is being talked about is utter tosh.

But, after yesterday's piece on international agreements, a remarkable illustration popped up in the form of a tweet from MP Steve Baker retailing a report that " EU ruling means speed limiters will be mandatory in the UK by 2022".

What price Brexit one might ask when, long after we have left the EU, we are still bound by its regulations? But, if Baker took the time out to looks at the original proposal (now Regulation (EU) 2019/2144) rather than a secondary report, he would have seen that we are dealing with type approval requirements for motor vehicles.

Within the text of the proposed regulation, had Baker gone that far, he would have seen the reference to the vehicle standard harmonisation process at international level through UNECE. It reads:
Automated vehicles have the potential to make a huge contribution to reducing road fatalities, given that more than 90 % of road accidents are estimated to result from some level of human error. As automated vehicles will gradually take over the tasks of the driver, harmonised rules and technical requirements for automated vehicle systems, including those regarding verifiable safety assurance for decision-making by automated vehicles, should be adopted at Union level, while respecting the principle of technological neutrality, and promoted at international level in the framework of the UNECE's World Forum for Harmonization of Vehicle Regulations (WP.29).
This is also a UNECE initiative, which is why it will apply to the UK by 2022. And, as Pete says, if the EU adopts the UNECE standard then so do all EU FTA holders, including Japan (and South Korea), so we have no real choice.

Of course, we do have the ultimate choice of dropping out of the WP.29 vehicle harmonisation agreements, as has the US with one of the agreements. Thus, we retain our sovereignty. If we choose to adopt the standards, it is not because the EU or any other body forces us to. Rather, it is because, on balance of advantage, it suits us to participate.

Thus, we retain our sovereignty, although – as some cynical drivers might observe – we will no longer have control of our cars.

Also published on Turbulent Times.

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