Brexit Central 12 December 2017
In the political realm, although the EU finds it convenient to talk about Brexit as a “divorce”, in reality the issues the referendum were fought over were about taking control, i.e. i) government solely by our own government, rather than the EU; ii) laws being made by our parliament – rather than in Europe; iii) laws being decided solely by our courts – rather than overseen by European courts. That as I have argued elsewhere, is closer to the independence the UK granted to former colonies.
Indeed, as Ambrose Evans-Pritchard recently demonstrated, one of the major problems the UK has in negotiating with the EU is that it actually functions like an empire. In fact, prior to the Brexit vote this was something that EU leaders would occasionally let slip, as Jose Manuel Barroso said in 2007 when he was President of the European Commission: “We are a very special construction unique in the history of mankind… Sometimes I like to compare the EU as a creation to the organisation of empire. We have the dimension of empire.”
This matters because of what the EU/UK negotiations report agreed on 8th December actually says. Just some of the issues agreed include:
The European Court of Justice will continue to have jurisdiction in the UK for 8 years after Brexit as the “ultimate arbiter” to arbitrate on the rights of EU nationals here on the withdrawal day (article 38), will have the right to intervene in UK courts (article 39) and may also have jurisdiction in some civil and commercial matters (article 91).
If there is no free trade agreement then “the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union” set out in the Good Friday agreement, although these rules will apply to the whole of the UK – not just Northern Ireland (article 49) and the UK agrees not to introduce any new laws or regulations that are different from EU single market regulations (article 50). This means that significant areas of the UK economy such as agriculture and electricity will be subject not just to existing EU regulations, but also to any future EU regulations – which the UK will have no opportunity to influence. This is a very significant loss of sovereignty, which actually leaves us in a more disadvantageous position than now. Aside from the obvious economic risks of allowing a government in another country to set the legal regulations for significant parts of the UK economy, this is constitutionally uncharted waters.
EU citizens will have a special status compared to UK residents from some other countries and it will be illegal to treat them differently to British citizens (article 11).
The UK commits to “no diminution” in the current level of protection from discrimination in EU law (article 53). This implies that the UK has now committed to not withdraw from either the European Court of Human Rights or European Convention on Human Rights, something that only a year ago was being talked of as being a central plank of the next Conservative election manifesto.
Whilst the issues the referendum was fought over were essentially about independence from the EU, i.e. about taking back control, it is worth bearing in mind that there are in fact two different models of how the UK has granted independence to countries which were formerly part of the British Empire.
From the 1950s onwards, the UK granted full independence and relinquished all aspects of political control to former colonies in Africa, beginning with Ghana in March 1957.
However, there was an earlier model of self government known as dominion status which was granted in the late nineteenth and early twentieth centuries to countries such as Canada (1867), Australia (1901) and New Zealand (1907) – and significantly to the Irish Free State in 1922. Dominion status gave them self-government – but crucially kept them within the political sphere of influence of the British Empire. The UK still retained various aspects control including over certain aspects of their laws, powers which were only repealed by the Statute of Westminster (1931) following agreement at the British Imperial conferences in 1926 and 1930. Even then the judicial committee of the House of Lords still continued to the “ultimate arbiter” of legal appeals until they established their own final court of appeal as Canada did in 1949. After 1947 the term dominion was dropped as it implied a degree of subordination to the British Empire.
So the question which now urgently needs to be asked is not simply on which economic model we wish to negotiate our future trade relationship with the EU – but which constitutional model we are seeking in our withdrawal from EU control: dominion status or full independence from the EU? Given that it is only since the start of December that the UK has suddenly found itself without any real notice or debate having agreed to “full alignment” with single market rules in areas such as agriculture after we leave, it is vital both that the cabinet has this discussion and that they listen to the voices of ordinary people who voted in the referendum. No government can simply give away key aspects of our constitution and sovereignty without proper debate.