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INTRODUCTION
Sovereignty is the crux of Brexit and the Government recognises this. In the words of the UK’s Brexit Chief Negotiator David Frost, sovereignty is not “some clever tactical position” but the “point of the whole project”.
Before joining the EEC and then the EU, the UK was a truly independent state. It would agree trading and other arrangements with other countries, and would be free to exit those arrangements. It was not subject to third party decision-making or control.
Membership of the EU, however, is underpinned by a concept of “pooled sovereignty”, through which Member States give up a degree of their sovereignty in return for participation in the EU’s collective institutions. The result of the 2016 Referendum was an obvious rejection of this approach. Therefore, on exiting the Transition Period (TP), it is vital that the Government ensures that no legal text interferes with the UK returning to a fully sovereign state, consistent with the status quo ante. The UK cannot be asked to concede on aspects of its sovereignty, whatever reasons the EU may concoct.
As things currently stand, this is not the case. The current situation results from a failure in the original Withdrawal Agreement – negotiated by Theresa May – to appreciate the irreconcilable position of exiting the EU, but instead signing back into EU law without any voting power over that law. Many aspects of that Agreement raised serious constitutional questions about the UK being bound to laws over which its voters have no control. For instance, it is unlikely the German Constitutional Court would regard such a deal, if entered into by Germany, as compatible with the basic law in Germany. Most international law agreements contain a ”vital national interests” carve-out. Currently, the UK’s arrangements with the EU do not.
Although the Government sees the revised Withdrawal Agreement (WA) as only transitional until the end of the TP in December, there remain serious threats to UK sovereignty that will have crippling economic and strategic consequences for years to come if they are not dealt with now. Exiting the TP with these threats still in place is unacceptable.
It is not widely understood how serious these threats are or that there are avenues through which they can be eliminated. These threats stem from three different sources:
1. There are specific terms in the WA that amount to a ‘poison pill’ for the UK’s future relationship with the EU, giving power to the EU and encroaching on UK sovereignty, namely:
- The Northern Ireland Protocol (the Protocol), which restricts Northern Ireland industry and agriculture from sharing in the future benefits achieved by Great Britain, applies EU State aid law over all the UK, renders NI businesses unprotected from EU anticompetitive behaviour, risks creating burdensome EU customs/border mechanics at the GB-NI border, and requires NI to enforce EU VAT regulations
- EU citizens’ rights are instilled that have ‘direct effect’ overriding future Acts of Parliament, coupled with European Court of Justice (ECJ) binding interpretation
- ‘Divorce payment’ liabilities that are vastly greater than the zero UK obligation under international law coupled with ECJ binding adjudication–Future financial liabilities that are very large associated with the UK’s membership in the European Investment Bank (EIB) and participation in other funds
- EU data protection laws which are entrenched for the long-term under the guise of EU citizens’ rights
- EU Geographical Indications of Origin which are entrenched to the detriment of UK trade agreements with non-EU countries–Provisions relating to UK sovereign bases in Cyprus and Gibraltar, as well as other issues that encroach on UK sovereignty
2. Separately in the negotiations, the EU is demanding additional sovereignty renunciations with regard to:
- Fishing rights where the EU is seeking joint – sovereignty
- The ‘level playing field’, which is essentially an assertion by the EU that EU law should apply to the UK economy to ensure that it competes only in a manner deemed satisfactory to the EU
3. The Political Declaration (PD) invites the UK to participate in various defence and industry schemes that are not in the interest of the UK and for which the UK has no legal obligation The danger is that if a sovereignty-compliant agreement cannot be agreed, the UK will be forced to suspend and terminate (through Act of Parliament) the WA. Failure to exercise this right and make plain the conditionality of its consent to the WA, risks by conduct, forfeiting this right and delivering renewed consent to the WA and its sovereignty-incompatible terms.
Therefore, to fulfil Brexit’s sovereign promise and take back control from the EU, the UK must ensure that any agreement negotiated is ‘sovereignty compliant’ and that the UK prepares itself for the possibility that the EU ultimately will not come to such an agreement.
This requires the Government to take the following five steps:
- Obtain a consensus within Government that the WA/PD threats to UK sovereignty and in the negotiations at large are unacceptable
- Define a Sovereignty Compliant Agreement to replace the WA
- Replace the WA through negotiation by a new Sovereignty Compliant Agreement, explaining and justifying why the UK’s proposed agreement meets the EU’s objectives while simultaneously ensuring our future sovereignty
- Position the UK to benefit from whatever negotiation outcome is achieved
- Offer the right deal to the EU The following chapters explain these points in depth.