Anthony Hilton: We need EU to curb our ‘elective dictatorship’

Indeed, the more British business asks for the market to be made more efficient free and open, the more that creates pressure for more rules to eliminate the remaining barriers. And assuming we still want to trade with other nations in the future, these rules or others like them would continue to exist and have to be complied with.

All the more reason therefore to welcome a calmer analysis from Simon Deakin, a law professor and director of the Centre for Business Research at the University of Cambridge. He argues in a recent paper that Brexit would make the UK less, not more, democratic than it currently is.

He makes the point that the second area of focus of EU law is human rights protections of the kind contained in the EU Charter of Fundamental Rights, and which crop up in other bits of regulation. It is these that the EU uses when admitting a country to membership to insist that the newcomer follows the rule of law, allows trade unions, gives basic rights to workers and equal rights to all citizens. It is one reason why Turkey might struggle to get in at the moment.

But these protections also tend to wind up a certain strand of British politician because they put some constraints on what they can do.

British politicians are not used to this but, Deakin suggests in the kind of argument we don’t hear often enough, that it is precisely the type of laws the British public needs to provide some protection from the dogma-driven whims of politicians.

Almost every advanced country in the world — the US, across Europe and most of the Commonwealth — has a written constitution that puts checks on its politicians so they do not have unfettered power. The UK is unusual, if not unique, in having no such constitution and no such checks. The House of Lords is a revising, not a blocking, chamber and the Queen is not allowed to withhold the Royal Assent, whatever she may think privately of the laws put before her by her Government.

As a result, we have what former Conservative politician and Lord Chancellor Lord Hailsham once called an elective dictatorship. Governments —even when elected by less than 40% of the vote, as is the case with the current administration — do pretty well anything they want provided they stay united.

One reason why oppositions frequently promise to repeal contentious legislation when they get to power, however wasteful and confusing this might be, is precisely that there is no other mechanism to constrain a government with a majority in the Commons. Other countries have the checks to ensure extreme legislation does not get passed in the first place if it runs against the will of the majority; the British do not.

Thus the Government is currently pushing through some wholly unnecessary anti-trade union legislation; it could if it so wished privatise the BBC or the entire National Health Service if it gave in to the market fundamentalism that drives a significant slice of its MPs. Only a Conservative revolt and split could thwart it; the combined weight of the other parties in the House of Commons cannot.

As a result Deakin, who is one of the leading legal authorities in the country, says: “Power is routinely exercised in the British state in ways which are neither democratic nor accountable. We have none of the checks and balances on political power which are taken for granted in other liberal democracies.

“Membership of the EU is the nearest thing the UK has to a constitution which protects human rights and the primacy of the rule of law.”

Bizarrely, given the emphasis placed on sovereignty and the British people having the final say on the laws by which they are governed, a vote for Brexit in the name of restoring the UK’s sovereignty and in protest against the “undemocratic” and “unaccountable” nature of the EU would actually have the effect of stripping away even these limited protections. What politicians mean by sovereignty is not necessarily what the public thinks they mean.