The EU won’t change: whatever the result of the #EUref, the left has more to fear than the right

imageThe EU referendum campaign has been the weirdest in living memory. One day, David Cameron argues that we should stay in the EU as we “just don’t know” what will happen in the years ahead; the next, George Osborne confidently makes projections 25 years into the future. Lifelong Eurosceptic Jeremy Corbyn now embraces his inner Europhile in an effort to placate his MPs. Michael Gove, Iain Duncan Smith, and Boris Johnson now, apparently, want to throw cash at public services. Meanwhile, Nicola Sturgeon is making the argument that staying in the Union is better for jobs, trade, and investment – seemingly without a hint of irony. But perhaps it’s Alex Salmond, the most famous supporter of Scottish independence since William Wallace, making the argument that we should remain in the EU because otherwise Scotland will become independent, that takes the prize for utter ridiculousness.

However, aside from the somewhat strange positions adopted by politicians, there is a bizarre ideological contradiction at the core of both the “Leave” and “Remain” campaigns. That contradiction, quite simply, is that the politicians whose views are most in-line with the ideological underpinnings of the European Union are campaigning to leave, while those whose views are totally at odds with the EU’s direction of travel are campaigning to remain.

When considering an organisation like the European Union, there are essentially two orders of complaint.

The first order complaint is fairly ideologically neutral: that the European Union deprives the citizens of Member States of any direct say over matters that would usually be the subject of political discourse and division. Invariably, the main proponents of this argument appear to be drawn from the right. Complaints about the surrender of sovereignty can frequently be heard from the Conservative benches of the House of Commons, but seldom heard from the Labour benches.

The second order complaint is distinctly partisan, and from a left-wing perspective more worrisome: that having been deprived of any direct say over matters that would usually be the subject of political discourse and division, we have had imposed upon us a free-market ideology from which we are not at liberty to depart.
Though the preference for free-market ideology has been evident, in particular in judgements of the ECJ, since the early days of the EEC, the abandonment of the façade of ideological neutrality came during the 1980s. During this period we saw the entrenchment of a consensus that arose in the 1980s, when almost every Minister in the Council was drawn from the centre right. This consensus led to both the Single European Act and the Treaty of Maastricht.

In recent years, this ideological preference has become more overt. For example, in two recent cases before the European Court of Justice (ECJ), the Court ruled on a conflict between the rights of workers to withhold their labour and companies’ rights of free movement. Normally in cases such as these where two competing rights are in conflict the Court will grant a wide margin of appreciation to the Member State. However, in Viking and Laval, the Court ruled that the rights of workers were subject to the the rights of corporations, and not balanced by them. In doing so, the Court ruled that workers are only allowed to strike where it’s not too inconvenient for their employers. And there I thought the whole point of a strike was for it to be inconvenient.

The court further ruled in Viking that it was lawful for companies to discriminate between domestic and imported labour, thereby creating an incentive for companies to import workers from other Member States in order to undercut wages.

Of course, the most high-profile recent example of the EU’s ideological preferences can be seen in the treatment meted out to Member States who found themselves in fiscal trouble during the Eurozone crisis – in particular Greece. Having knowingly created artificially low interest rates in the so-called “PIGS” states, the EU institutions turned their backs on these states, insisting that “there is no alternative” to harsh austerity measures. Of course, there was an alternative – but one which would involve unpicking the ideological preferences of the EU.

The left consoles itself with the socialist scraps thrown from the EU’s capitalist table – such as directives on working time, maternity pay, and roaming charges. However, the left ignores the fundamental entrenchment of neoliberalism that the EU mandates.

Thanks to the EU, the most basic instruments of left-wing governments have been neutralised, with the exception of tax and spending (although the Commission’s coming for that next). States are no longer at liberty to nationalise, regulate, or subsidise as they see fit. A left-wing government wouldn’t blink at rescuing Port Talbot steel works – but even if Jeremy Corbyn was Prime Minister there’s absolutely no chance his government would get Commission authorisation for supporting the steel industry. In recent years, too, we’ve seen the Commission clamp-down on airport subsidies, of crucial importance to many in Scotland.

Unlike in domestic politics, this ideological preference cannot be undone by a majority, even a relatively sizable one. A similar uniformity of ideology as was evident in the 1980s would be necessary before a reversal of this ideological choice became possible, let alone likely. Such uniformity becomes less and less likely as more and more states are represented at the Council.

It is surprising, therefore, that so many on the Conservative benches are so antagonistic towards the European Union, relative to those on the Labour benches. If Conservatives don’t like that their political autonomy over the ideological direction of the country has been stripped away, they can at least console themselves with the fact that the levers of power of which they have been deprived are nonetheless being pulled in a manner that is, for the most part, to their pleasing. For example, John Major’s government actually quite liked the EU’s deficit-limitation rules because they represented the entrenchment of “good conservative values”.

By contrast, the left is usually quite at peace with not pulling the levers of power themselves provided that they are being pulled in a manner of their pleasing (the internationalisation of human rights is a good example of this). But in EU Member States control over the levers of power has been surrendered and that power is being exercised in a decidedly right-wing manner. It is astonishing, therefore, that the Labour Party should be the strident defenders of the European Union, while it is the Conservatives who are amongst its harshest critics. The Labour Party has convinced itself that the European Union can be a vehicle for left-wing ideology when sixty years of evidence has shown that the opposite is, in fact, the case.

Normally the place for debating substantive matters should be the internal democratic processes of the organisation – that is to say, European Parliament elections. The fact that these questions have dominated the referendum debate, and not the more relevant question of what power (if any) the EU should exercise is testament to just what a democratic failure the EU really is. Despite the seismic political shifts that have taken place in Member States in the past 30 years – the fall of Thatcher and Kohl, the rise of New Labour and France’s Socialist revival, the end of sixty years of Fianna Fáil hegemony in Ireland, and the annihilation of PASOK by Syriza, to name but a few – the political direction of the EU has never changed. If anything, recent evidence has shown that despite rising disquiet amongst voters, the determination of the EU’s leaders to pursue a right-wing, neo-liberal, free-market agenda has become more trenchant, not less.

So the right should console itself with the fact that they’ll almost certainly be getting their way whatever the result. If we leave there’ll be a Tory government in Westminster unfettered by the interfering busybodies in Brussels and Luxembourg. If we remain the EU institutions will be vindicated, and the free-market ideology will become even more entrenched. For the left, it’s difficult to find a silver-lining in either scenario.

This blog is adapted from an article I wrote for Grapevine – available now. 

What would Scotland’s political landscape look like under STV?

Last night, my dear friend James MacKenzie suggested that the next Scottish Parliament elections will be fought using Single Transferable Vote (STV), because the SNP, Greens, and Lib Dems all (apparently) support it and the Scottish Parliament now has the power to change it. While I think that is absolute rubbish (why would a politician as risk-averse as Nicola Sturgeon pursue electoral reform that wasn’t in anyone’s manifesto?)  I began to speculate as to what that would look like. So I set about putting together multi-member STV constituencies for the Scottish Parliament.

My first assumption is that, as local government in Scotland uses wards of either three or four seats that these would also be the predominant model used for Parliament seats too. However, any reform effort would doubtless come under significant pressure to include the possibility of five seat constituencies too, in order to prevent a systematic bias in favour of large parties. I’m also assuming that there will be 129 seats, on the basis that electoral reform would be an almost impossible sell if it simultaneously includes creating more politicians. It seems obvious to exclude three seats for the islands, though I’m avoiding the question of how you’d represent these three disparate areas under STV. That leaves 126 seats to be made up on the mainland. I have sought to follow the rules set out in the Scotland Act 1998, which are summarised as follows:

  1. So far as is practicable, regard must be had to the boundaries of the local government areas.
  2. The electorate of a constituency must be as near the electoral quota as is practicable, having regard to Rule 1.
  3. Rules 1 and 2 may be departed from where special geographical considerations (including in particular the size, shape and accessibility of a constituency) render it desirable to do so.
  4. Regard must be had for the inconveniences attendant on alterations of constituencies and of any local ties which would be broken by such alterations.

I also commenced the way the Boundary Commission for Scotland usually does, which is to start at the top and work my way down. The electorate data is from the last review of UK Parliament constituencies (which was not completed), so it’s a little dated. Nonetheless, it provides a relatively good indication of how it can be done.

The total electorate for the mainland is 3,873,387, making the quota for three, four, and five seat constituencies 92,224, 122,965, and 153,706, respectively. The proposed constituencies are as follows.

As the electorate data is broken down into wards, some of the divisions are a little clunky. This is particularly the case where the cities are concerned and wards have electorates in excess of 20,000 voters.

A handful of constituencies were particularly difficult to make up. One such example is Argyll and Bute – a seat that is not in the Highlands, but neither is it suburban Glasgow. It was difficult to put together a seat for Argyll that wasn’t vastly under the quota or vastly over the quota, and there appears to be very little that can be done at the fringes to avoid this (i.e. you either include Dumbarton, or you don’t). East and Mid Lothian is also considerably over quota, which could be more easily resolved by transferring some electors from Millerhill, Craighall, or Musselburgh into Edinburgh.

Geographically, the seats would look as follows:

How would #sp16 have panned out under this system?

It’s obviously impossible to accurately translate results from one electoral system into another. What this simply amounts to is educated guesswork – the factors involved are the constituency votes in the relevant existing constituencies, the strength of the parties’ list vote in the broader region, and guesstimates as to how transfers might pan out. In a good chunk of the seats this is a relatively easy task (for example, in Dumfries and Galloway, the vote share across the two equivalent constituencies amounted to two quotas for the Tories, one for the SNP, and one for Labour, while the Greens performed poorly in the south list relative to the rest of Scotland). However, in many others, I’m simply going on instinct. In those instances, the results are a good deal less than scientific. Finally, I’m assuming that, whatever way they were elected, the three island seats would have produced the same three MSPs.

Therefore, if the Scottish Parliament election had been held using STV on the above boundaries, my guess is…

SNP: 64, Conservatives: 28, Labour: 27, Lib Dems: 6, Greens: 4.

If you want to give it a go yourself, the full breakdown of my guesswork is available here.

They Took Our Jobs! The free market bias of the European Court of Justice and the dismemberment of workers’ rights

giphy“We have surrendered our sovereignty to the European Court of Justice” is the one of the most common arguments in favour of leaving the European Union of the Tory right. This, I have argued before, is somewhat surprising given that the consequence of that loss of sovereignty is the removal of Member States’ liberty to depart from a free-market, pro-private enterprise, capitalist ideology. The cardinal offender, in the minds of Jacob Rees-Mogg, et al. is the European Court of Justice (ECJ), with their fondness for distasteful European ideas such as rights, etc. It is true that the ECJ is imbued with a broad power to bind the courts of the Member States, and that that power might not be so objectionable if it were exercised in a manner that is ideologically neutral. However, while it is certainly the case that the ECJ is not ideologically neutral, what the Rees-Moggs and the Borises of this world seem to ignore is that the ideology the Court has consistently chosen to impose is the pro-enterprise ideology that Rees-Mogg and Boris so favour.

Article 3 of the Treaty on European Union (TEU) provides that one of the aims of the EU is to pursue a “highly competitive social market economy”. The ideological ambiguity in this objective is no accident – the consensus in favour of European unity at the Communities’ outset was so broad that the objective of unity was paramount to all other ideological concerns. As the ECJ is a fan of the purposive approach to legal interpretation, it therefore, inevitably, falls to the court to resolve the conflict between the “social” and “free market” objectives of the Union. It is clear from the decisions of the Court that the ECJ favours the free market over social objectives.

Though the Court’s ideological leanings have been evident since the days of Cassis de Dijon, in keeping with the other EU institutions, the ECJ became more overt in expressing its ideological preferences in the mid-1980s. In Zaera, the Court stated that the objective contained within Article 3 of “raising the standard of living” within the Union was not a directly effective right or an objective per se, but rather that it was an expected consequence of the operation of the single market. In other words, the only increases in living standards that the EU Treaties mandate are those that occur by accident through the operation of the market, and that any artificial attempts at raising living standards are (presumably) illegal where they interfere with the operation of the market. The decision to favour one objective of Article 3 while surgically neutering another is an ideological preference.

While we frequently hear claims from the left about how much the EU has done for workers’ rights (ignoring the fact that many of the rights that they provide already existed in the UK, and in the case of holidays the UK provides more the minimum mandated by the EU) there appears to be a collective ignorance amongst many on the left as to the ECJ’s total dismemberment of collective labour rights. Two seminal cases in the past decade exemplify this: International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP (Viking) and Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (Laval).

In Viking, Viking Line ABP operated a ship between Finland and the Estonia, and planned to change the registration of the ship from the former to the latter in order to avail of a lower minimum wage in for Estonian workers. The International Transport Workers’ Federation opposes all “reflagging” for convenience, and instructed all of its international partners not to deal with Viking. Viking sought an injunction in the High Court of England and Wales on the grounds that the industrial action infringed upon their right of freedom of establishment under Art. 56 TFEU.

Similarly, in Laval, the the Swedish government awarded a contract to build schools to a Latvian company, Laval, who posted workers from Latvia to work on sites alongside Swedish workers. The Swedish Building Workers’ Union demanded that Laval sign their collective labour agreement, which would provide Latvian workers with far better protection than they would have been entitled to under the Posted Workers’ Directive. Laval refused, and so the builders’ union, along with the electricians’ union, called a strike in order to picket Laval’s sites. Laval sought an injunction under Art.56 as the pickets prevented them from doing business in Sweden, thereby infringing upon their right of freedom of establishment. The Court held, inter alia, that the Posted Workers’ Directive only entitles workers to the rate of pay the higher of the rate of pay they receive in their home country or the minimum wage in the host country, irrespective of whether or not that wage is significantly lower than the wage received by domestic workers. In effect, you can undercut domestic workers by importing labour even when it’s prima facie discriminatory.

In both Viking and Laval the Court held that there exists in EU law a fundamental right to industrial action. Naturally in cases such as these, that right to industrial action comes into conflict with the employers’ right of freedom of establishment. Normally in cases such as this, where two rights are in conflict and the scales are evenly balanced, the Court will grant the Member State a wide margin of appreciation. Resolving the conflict between two rights is, ultimately, an ideological, and therefore, a political task, and not a role that a court such as the ECJ should be performing. This is the approach that the Court had previously taken in cases such as Schmidberger and Omega.

However, in Viking and Laval, the Court held that the right to industrial action is subject to the right of freedom of establishment, it must pursue a legitimate aim, and it must be proportionate. In other words, you’re allowed to strike provided it’s not too inconvenient for your employer! And there I thought the whole point of a strike was for it to be inconvenient.

These are just some examples of the court’s preference for corporations over workers. There exist plenty of other examples of the Court’s ideological preferences in the field of labour law (such as Rüffert), as well as scores of examples where State Aid, Public Procurement, and Competition law are concerned, which I intend to write about in a subsequent blog. What’s clear from all of this, however, is that if anyone should be enraged by the European Court of Justice, it’s not the Jacob Rees-Moggs of this world, it’s the left.