In a Guardian article entitled “Corbyn could come out fighting with a rebellious remain and reform agenda”, Ash Sarkar (a senior editor at Novara Media) proposes a strategy of remaining in the EU whilst revolting against its neoliberal laws:

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if Labour wanted to pursue a policy platform that was more interventionist than its 2017 manifesto, it would soon come into conflict with the EU. I say bring it on… There’s much to be said for being rule-breakers and not rule-takers in Europe. Rather than accepting the constraints of Labour’s electoral tightrope walk, Corbyn could set out a vision of EU membership, with a fightback on limits to the UK’s economic autonomy. A commitment to remain should come with a solemn promise: if aspects of a future manifesto come into conflict with EU rules, then screw it, Labour will happily have that fight. And this isn’t just a PR exercise, it’s a push for political change.[1]

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Sarkar concludes: “A remain campaign…is an expression of the conflict between the freedom of people and democratic institutions, and the freedom and protection of capital.”

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Sarkar does not spell out by what political gymnastics the Labour Party—having already “solemnly promised” to respect the result of the EU referendum—would abandon that promise in favour of “remain and revolt”. Nor does she speculate on the likely electoral impact in Labour’s working-class heartlands in the Midlands and the North, or in the 78 per cent of Labour’s target Tory marginals which voted Leave.[1]

More importantly, Sarkar’s proposed “Remain and Revolt” strategy – which parrots earlier suggestions by figures like Paul Mason and, most prominently, Yanis Varoufakis – is merely a misleading twist on the deeply flawed “Remain and Reform” strategy, debunked for The Full Brexit by Lee Jones (Analysis #23 – The Folly of “Remain and Reform”: Why The EU is Impervious to Change).[2]

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“Remain and Reformers” seem to have no answer to Jones’ argument that the EU Treaties’ amendment procedure provides multiple opportunities for anti-socialist governments to veto any changes proposed by socialist governments. Jones explains that the Treaties’ “locking in” of neoliberalism is no accident but a design: from its outset the EEC/EC/EU has constitutionalised free market principles such as the “four freedoms” and the “level playing field” provisions which protect marketisation and restrict state aids. As Jones observes, the EU’s structure is based around insulating international capital from the vagaries of democratic politics. Reforming them is therefore not a serious socialist or democratic agenda but a liberal fantasy.

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The call to “Remain and Revolt” tacitly accepts that lawful change of the EU treaties is impossible, advocating unlawful change instead: EU provisions would be effectively “amended” by a leftist Labour government simply rebelling against them and carrying out its democratic socialist manifesto. But this revised proposal is a dangerous fantasy, betraying deep ignorance of how EU governance actually works.

 

Ignoring Britain’s Transformation into a Member-State

The “Remain and Revolt” strategy commits the same intellectual error as Tory Brexiteers: it imagines that the EU is something external to Britain, such that it can simply be left, like a tennis club, or rebelled against, like a distant emperor. This is completely mistaken. As consistently argued on The Full Brexit, the EU is not a supranational government. Rather, it operates through the transformation of domestic state institutions to serve supranational purposes: nation-states have been remade into member-states (see Analysis #1 – The EU’s Democratic Deficit: Why Brexit is Essential for Restoring Popular Sovereignty).[3] In particular, the EU’s neoliberal constitutional order is made effective not by a supranational court, but by domestic ones. Fatally for Sarkar’s case, British courts protect EU rights against the policies and laws of our own government and Parliament. This makes it impossible to “revolt” against EU rules without first becoming an outlaw government and/ or suppressing Britain’s own independent judiciary.

 

As far back as the early 1960s the European Court of Justice (ECJ) decided to recruit member-states’ national judges as its lieutenants and enforcers. The Court declared that EU law (at that time, EEC law) created rights for individuals which national courts must protect, and that these rights prevail over any national law, regardless of how that national law is framed. This makes it impossible for a Labour government effectively to legislate contrary to EU law. If parliament passes an EU-conflicting law, our own courts will be legally bound to give precedence to EU provisions.  That the British courts will allow EU law to prevail over British Acts of Parliament was confirmed by our country’s top court in 1991 in the Factortame case. Moreover, while lawyers talk of EU law “giving rights to individuals”, it is often capitalist corporations who use national courts to enforce their freedoms under EU law, including in the landmark 1960s cases that established these legal doctrines. This makes it especially absurd for Sarkar to argue that “Remain and Revolt” could help advance “the freedom of people and democratic institutions” over “the freedom and protection of capital”.

Since the 1960s, the ECJ has made EU law increasingly effective against national governments and parliaments as the Court’s jurisprudence has developed. It has created a legal doctrine that national courts must make member-states financially liable to individuals (e.g. corporations) if serious violations of EU law by a government causes loss or damage. It has also developed a doctrine of effective remedies whereby if a judicial system does not contain adequate remedies strong enough to enforce EU rights the court hearing the case can itself create such remedies.  This doctrine would negate Labour efforts to restrict national court remedies, for example if it sought to shield its nationalisation legislation from legal challenge by corporations.

 

Moreover, the British courts could even strike down laws passed in express defiance of EU rules. For instance, Parliament might try to assert its sovereignty by expressly stating in a statute that its provisions apply notwithstanding the effect of the European Communities Act 1972. So far, this possibility has only been debated theoretically by legal scholars, because no government has ever tried it. However, it is perfectly conceivable that the British judiciary would pronounce that joining the EU constituted a fundamental change in our constitution, such that there is a judicial obligation to enforce EU law over national law as long as the UK remains a member-state. If our judges were called upon to determine this profound constitutional issue then –    regardless of the constitutional language and doctrines which they may deploy in their explicit reasoning – they would no doubt, as is normal, decide the matter in accordance with their view of where the public interest lies. But judges’ view of the public interest generally coincides with their own personal political views.[4] And on the issue of EU membership, these judicial views are overwhelmingly and passionately pro-Remain. To make the fate of the next Labour government depend on a judicial choice which could very easily go against the government is reckless in the extreme.

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To “Remain and Revolt” against the EU thus means revolting against Britain’s own judicial system. The only way a Corbyn administration could prevail would be to ignore the courts, thereby violating British law, or to somehow curtail judicial independence. “Bring it on”, a self-declared “communist” like Sarkar might cry. But this would merely be play-acting. So-called Leftists who quail merely at leaving the EU clearly have no appetite for the sort of radical confrontations and ruptures this would involve. Certainly, the parliamentary Labour Party – even its tiny Corbynista contingent – has no stomach to go into battle not merely against European authorities, but against the British state’s own courts.  The party’s ideological shift from democratic socialism to left-liberalism has led to the replacement of class analysis of judicial power by a liberal reverence towards judges. The pro-Corbyn Shadow Justice Secretary Richard Burgon defended the judges in the Miller case by invoking the rule of law. This is a far cry from pre-Thatcher democratic socialist analysis whereby, as J.A.G. Griffith observed, “the Rule of Law is an invaluable concept for those who wish not to change the present set-up”.[5]

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Set against the centrality of the national courts to the EU system and the Left’s contemporary deference towards them, the chances of “Remain and Revolt” succeeding are negligible. This is not a serious strategy, but the latest Remainer con-trick to persuade self-identifying radicals that there is a path to socialism within the European Union.

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References

[1] “Corbyn Could Come Out Fighting with a Rebellious Remain and Reform Agenda”, The Guardian, 29 May 2019.

[2] See also Lee Jones, “Yanis Varoufakis’s Fantasy Politics”, Jacobin, 10 September 2016.

[3] For an extended version of this analysis, see Christopher Bickerton, European Integration: From Nation-States to Member States (Oxford: Oxford University Press, 2012). See also James Heartfield, The European Union and the End of Politics (Winchester: Zero Books, 2012).

[4] J.A.G. Griffith, The Politics of the Judiciary, 5th edition (London: Fontana, 1997), p. 336.

[5] J.A.G. Griffith, “The Political Constitution”, Modern Law Review 41(1) (1979), p. 15.

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About the author

Danny Nicol is Professor of Public Law at the University of Westminster and author of The Constitutional Protection of Capitalism (Oxford: Hart, 2010).

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This work represents the views of the author only. It is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.