Comment

British sovereignty and the Brexit endgame

Bobby McDonagh / Oct 2020

Image: Shutterstock

 

Prime Minister Johnson and his Brexit negotiating team have repeatedly insisted that the EU must respect British sovereignty. This message has been echoed yet again in recent days, including with an emphasis on the UK’s status as an “independent” nation (not incidentally a topic on which Ireland feels it has an immense amount to learn from our neighbour).

However, the issue of national sovereignty is far more complicated than Johnson’s team seem to imagine. A successful conclusion to the Brexit negotiations, as well as the close future UK/EU relationship that all sensible people want to see, will require some understanding of that complexity, which has four important aspects.

First, despite what some Tory MPs seem to believe, the UK does not exist within a comfortable, self-defined bubble. Every British policy with international implications must take account of a wider world in which other nations equally cherish their sovereignty and advance their interests. The assertion of any country’s sovereign interests is limited by the sovereignty of other countries, at least in the post-colonial world.

The EU Member States are just as sovereign as the UK; both individually and, where they have agreed to share their sovereignty, collectively. Thus, the UK’s right to define its own state aid rules, a key remaining sticking point in the Brexit negotiations, is precisely balanced by the EU’s right to define the rules, including a level playing field, under which British goods and services may access its market. If the UK truly wished to live in splendid isolation from the world, if it didn’t want to export freely to its largest and nearest market, it could happily embroider its state aid rules on a Union Jack and run them up a flagpole in Trafalgar Square.

However, the simple reality is that, if there is to be a Brexit trade deal, both sides will have to respect each other’s sovereignty. There will have to be, in that dirtiest of words, a compromise. This is manifestly in the interests of both the UK and the EU and remains the most likely outcome.

This straightforward law of nature, the need for compromise, applies not only to Brexit but to every negotiation between sovereign countries. For example, in London’s trade negotiations with Washington, the US side will be extremely tough, including on chlorinated chicken and hormone treated beef. Any eventual trade deal will involve the UK accepting the reconciliation of two sets of sovereign interests. Similarly, in order to reach a trade agreement with Japan, in order to replicate the trade access it already had through the EU, the UK has had to accept state aid provisions not dissimilar to those that, in a Brexit context, cause a fit of the vapours in Downing Street.

Second, the significance of the Conservative majority in the House of Commons is in danger of being seriously overstated, with implications for the UK’s international negotiations more generally. Johnson’s large House of Commons majority, extremely pliant notwithstanding some recent twitching on the backbenches, allows his Government to pursue pretty well any domestic policies it wants, unless constrained by cost, by shame or by the law. The Internal Market Bill, openly acknowledged as a breach of international law, suggests that even the law is no longer an insurmountable barrier. However, the UK’s international negotiating partners, including the EU, are utterly oblivious to the arithmetic of the British parliament. Parade ground swagger does not survive contact with any enemy.

Third, in our modern interdependent world, sovereignty is not something to be hoarded and hidden from the sunlight. It is not a delicate heirloom to be buried under the Dominic Cummings memorial seat in the Downing Street garden. Rather, for every country, it is a precious inheritance to be deployed proudly and confidently, including through international organisations and treaties each of which represents some voluntary limitation of that sovereignty. The UK has an outstanding record in recent decades, including as an EU Member State, of using its sovereignty intelligently in support of multilateralism and the promotion of its national interests. I expect that, albeit diminished by its departure from the EU, it will settle into reasserting that approach. However, I fear that the manifest failure to understand the pooling of sovereignty in an EU context could seep into wider thinking.

Finally, the sovereignty of any country necessarily requires respect for its own legal order including for the treaties it signs. The complexity of the Northern Ireland peace process represent for some a pesky intrusion of reality into the fantasy Brexit world of untrammelled British sovereignty. However, the British Government itself has now shaped, signed up to and ratified the Withdrawal Agreement including the Northern Ireland Protocol. That legally-binding treaty was not only a painstaking political compromise but also a solemn exercise by the UK of its own sovereignty. It seems that welcome progress is at last being made on implementation of the Protocol. The UK Government will hopefully withdraw the provisions in its Internal Market Bill which it has acknowledged to be an illegal breach of the Protocol and which obliged its most senior legal adviser to resign as a matter of principle.

The UK is right that its sovereignty should be respected, taking account, of course, of the complexities set out in this article. If, despite the signs of progress with the Protocol, the UK were to play silly buggers with its own sovereign obligations, the international community would see that as a wilful diminishment of British sovereignty with implications for the UK’s standing and reputation.

Bobby McDonagh

Bobby McDonagh

October 2020

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