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The EU – In or Out? A Lawyer’s View

Current debate is at the moment all about economics, – would we be better off in or out?  To my mind, the answer is that nobody knows since markets are necessarily unpredictable.

I voted ‘Yes’ in 1975 and I have been pleased with the results since then.  We all knew that an ever closer union was on the agenda.  The major changes, apart from the single market coming in in 1993 had been changes in the law brought about by European directives and regulations.   I grew up in the post-war era when the memory of the two World Wars, in essence, European wars, was fresh.

The EU has brought us equal pay for women, maternity pay, environmental protection anti-discrimination laws, protection for workers, stronger financial regulations for banks and investment companies.  Current EU projects include making sure that multi-nationals pay their fair share of tax, do not abuse privacy laws and that corporate pay is kept within bounds.   I applaud all of this.

What about the legal consequences if we left?  My worry is the constitution.

We have no written constitution.  We are surely alone amongst developed nations in not having one.  So there is no constitutional court to stop the Government doing crazy and oppressive things.  Our governing power is, and has been for centuries, the Queen in Parliament, ie,  three elements, the Queen, the House of Lords and the House of Commons.  Over the centuries, the power of the Commons has grown and the power of the sovereign and the House of Lords has diminished.  In 1949, the Attlee Government pushed through a second Parliament Act which reduced the power of the House of Lords so that it could, in essence, delay a Government bill for only a year.  However, there was still the power of the sovereign.  The Queen could dissolve Parliament whenever she wished and cause the Commons to seek a fresh mandate from the people.

What passes between the Queen and her Prime Ministers is confidential and unminuted.  We do not know if she has ever exerted pressure on a Prime Minister to go to the country. She could have done.  She certainly retained the right to dissolve Parliament, and it was always her decision alone to do it, whether the prime Minister asked for it or not.

In 2011 this power of the Queen was abolished by the Fixed Term Parliaments Act of 2011.  The Queen can no longer make politicians go to the country.  She can, however, prorogue (i.e.extend) a Parliament.  Moreover, there is, however, nothing whatever to prevent the House of Commons passing an Act of Parliament (forcing the Lords to acquiesce) which  extends the term of Parliament beyond the five years provided for under the 2011 Act.

So currently, the only limits to the power of a political party which has won only one election are the European Union treaties.  These act  to some limited extent like a constitution and are enforceable by our own courts.  Leave the EU and take those treaties away and you have in effect an unfettered single chamber legislature.  We know from recent scandals that election to the House of Commons does not clothe its members with any kind of moral standing.  It is far from impossible that a right wing or left wing Government should take control and be reluctant to cede power to its opponents.  There will be nothing that could then be done to curb its activities.

Add to this the strong possibility that if we leave the EU, the Scots will leave the United Kingdom, and we would have a highly unstable future outside the EU..

So I’ll be voting to stay in, not only to avoid the economic risks of leaving, but to avoid giving too much power to elected politifians .

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