Sovereignty is nothing to be sneered at
By Pete North - November 28, 2020
The essential malfunction in the Brexit debate, pretty much from the beginning, has been a misunderstanding of the concept of sovereignty. The Tories insist that every last scrap of it be reclaimed from the EU. There is an apparent failure to understand that virtually every international agreement, particularly modern trade deals, is in some way a voluntary limit on the exercise of sovereignty.
In trade agreements parties agree, at the very least, to inform each other of potential trade conflicts and consult each other on regulatory measures – particularly on matters of state aid. The Tory right, though, believes sovereignty to mean that we should be able to do as we please within our own borders and it’s no business of anyone else. That approach does not yield much in the way of cooperation from others.
The dispute with the EU is less a matter of limits to sovereignty. It is that EU membership requires the transfer of political authority. While you remain a member of it, you agree to submit to its rulings, directives and instructions.
The absolutist interpretation of sovereignty on the eurosceptic right, however, is born of a rampant paranoia, and a refusal to recognise that mutually binding limits to the exercise of sovereignty can be beneficial. It establishes the basis of trust upon which trade is built.
By way of our own refusal to set out in detail our own state aid regime, for example, leaves the EU wondering if investing in the UK is a safe bet or whether it will face unfair competition. If EU businesses face that kind of uncertainty, it cannot offer reciprocal access to its own markets. The Brexiteer prefers to believe that the EU’s requests for clarity and a “level playing field” are more to do with the EU’s desire to retain control of the UK after its departure – fearful that Brexit Britain could very well prosper and become a more attractive trade partner.
What the Brexiteer fails to observe is that the EU also seeks to safeguard its own sovereignty and customs integrity. If it were to relax its own frontiers and allow UK goods without assurances and regulatory guarantees, then the UK could then unilaterally set the lowest bar of market entry.
The thing about all this stuff is that you either get it or you don’t. And the Tories don’t. After a while Theresa May figured it out which explains her ill fated attempt to negotiate a “common rule book” and a goods only single market deal, but the closer she got to understanding it, the more alienated she became from her party. Thus I have a great deal of sympathy for her. The more I learned about trade the more Brexiteers accused me of being a remainer – just for pointing out the obvious. Maintaining Tory standard ignorance is a loyalty test.
This conceptual misapprehension on the right is ultimately what was driving “hard Brexit” – that and group conformity where to get in with the Brexit in crowd you must demonstrate how hard your Brexit is. You have to be macho to be in the club.
Tied in with the question of sovereignty that underpins the UK’s negotiating ethos is the insistence that we should not be a rule taker. This was one of the reasons that eliminated the EEA option. Anand Menon and Jonathan Portes (allegedly experts) of Uk and EU had been briefing against the option, telling anyone who would listen that Norway adopts all the rules with no say. There are volumes to be written on just how wrong this is, but what’s done is done. They won that argument. We’re leaving the single market.
The question of adopting rules, though, is one that does not go away after Brexit. If we’re not taking them from Brussels either directly or via Efta then we’re taking them directly from the source. The fact is that everyone in the age of globalisation and global governance, including the EU, is a rule taker. This is an age old debate happening the world over.
Published in 1995, Phillip Alston observes in his book, Treaty-Making and Australia: Globalisation Versus Sovereignty “In countries like Australia, national sovereignty has long been a thing of the past when it comes to many areas of business regulation. In the world system, Australia is substantially a law-taker rather than a law-maker. This process of globalisation of regulatory law has been accelerated by the General Agreement on Tariffs and Trade (GATT). Thanks to the GATT, our food standards will now, effectively, be set in Rome rather than Canberra or Sydney.”
The impact of the GATT, says Alston “is no more than an acceleration of what has been going on for a long time. For years, some of our air safety standards have been written by the Boeing Corporation in Seattle, or if not by them, by the US Federal Aviation Administration in Washington. Our ship safety standards have been written by the International Maritime Organization in London. Our motor vehicle safety standards have been written by Working Party 29 of the Economic Commission for Europe (UNECE). Our telecommunications standards have been substantially set in Geneva by the International Telecommunications Union.”
That much was true in 1995 and it’s especially true now. Global governance has exploded in scale and scope. Britain may have negotiated our future relationship with sovereignty at the forefront of its thinking, but that thinking was certainly not deep thinking. Global regulation greases the wheels of global trade and it is something with which we must contend. It is not going away and Brexit is only a partial remedy to our sovereignty concerns. We may have repatriated the decision making powers, but Britain must till navigate a galaxy of rules, standards and conventions, all of which place limits on the exercise of sovereignty.
This in particular was why the oft repeated assertion that “Norway has no influence” was wrong. Most regulatory initiatives coming out of Brussels begin life in the global bodies, and most of the standards invoked by EU regulations are global standards, often of UN origin on anything from vehicle safety and emissions rules through to aubergine marketing standards. Indeed, even those regulations on “bendy bananas” are of UNECE origin. The Single Window system that will eventually run the entire EU customs and compliance regime is of UNECE origin.
As Philip Alston remarks, “nations revel in the illusion that their laws are creations of their national imagination, of the capacities for problem solving of their local political institutions. Most political leaders do not realise that most of the time they are voting for laws that are nearly identical to laws previously enacted in other states (at the same time political scientists have documented systematic patterns of verbatim copying of laws to the point where even serious typographical errors get copied). That is because they are only dimly aware of the mechanisms of globalisation.”
Here it seems particularly absurd that Britain should steadfastly oppose the adoption of rules from Brussels having just rolled over a comprehensive FTA with Japan which also establishes those same international organisations as the basis of all future technical regulations. We are sacrificing a great deal of EU market access for a notional ability to diverge where realistic scope for divergence is minimal and without value. Very rapidly, the Brexiteers will discover that the sacred cow of sovereignty ain’t so sacred after all – and Brexit, of itself, accomplishes very little in the sovereignty stakes. Globalisation, global governance and global technocracy is here to stay. It’s the age old dilemma. You can have trade or you can have “sovereignty”. Both is improbable.
Of course, this dilemma is resolvable but only if the world comes together and acts in unison to roll back global governance. This, though, is not going to happen. A rules based order, though suboptimal, is better than the alternative. Moreover, a world dominated by European and American standards is better than a fragmented world where China calls the shots. In short, if you voted for Brexit for absolute regulatory independence then you backed the wrong horse. It doesn’t exist – and if it did, we wouldn’t want it.
This is not an argument against Brexit, rather these are facts we should at least have been aware of before commencing. What matters is where the line is drawn. Nobody is going to go to the barricades over aubergine marketing standards and test regimes for vehicle seatbelts but when regional and global technocracy encroaches on those areas of public life where decision making authority should reside with the public, then we have a problem with it. Hence Brexit.
Writing on LSE blogs, Nicholas Westcott (Research Associate at SOAD), asserts “Ultimately, real sovereignty means having a seat at the table, a voice in the debate and a vote on the outcome. We have thrown all that away. We are left with paper sovereignty that sounds good but has no effect. We become a rule-taker from countries and Unions bigger than us, rather than a rule-maker”.
This is the classic europhile mentality which knows of no other regulatory influence than Brussels. Outside of the EU, the UK is able to launch its own initiatives independently in any of the global regulatory forums (regaining its “seat at the table”) on everything from ship safety to solar panel standards. It is not longer obliged to adopt the common EU position, and is able to build up ad-hoc alliances in support of its initiatives, working to define rules and standards that the EU in turn will adopt.
Influence in these matters is as much to do with your level of market particpation, what intellectual resource you bring to the table and your willingness to finance your own diplomatic initiatives. With British research institutions appearing the the top ten of global rankings, where the EU is absent, there is every reason to expect the UK can continue to make its voice heard. As top donors in international development and with a respected presence in Geneva, the UK will continue to contribute to the development of rules and standards.
One suspects that making a big show of sovereingty in negotiations with the EU is more politicking than anything else. Playing to the Tory gallery. David Frost cannot be unaware of the global dynamic in standards and regulations, and what we’re looking at is more than likely a negotiating tactic to ensure a looser relationship than envisaged by the EU, and though one can rightly question the economic wisdom of such an approach, setting the UK up as a competitor rather than partner, sovereingty in this regard is not something to be sneered at.
There are any number of remainer articles similar to that of the LSE’s latest blog, all of which trivialise the EU’s influence on our statute book. We can accept that common food safety rules with our closest partners are a public good. We can accept that a global regime for vehicle safety is both necessary and desirable, but the EU has never been strictly a regulatory union for the facilitation of trade, as is often dishonestly implied by the likes of Westcott. The EU is geared toward the subordination of political authority in the nation state, removing its members from international affairs and replacing them with an EU presence. Retaining our visibility internationally is a major aspect of sovereignty – as is speaking for ourselves without seeking permission.
While sovereingty will remain a nebulous term, on a more macro level, Brexit is an international gesture that puts us apart from the EU, so that in our international endeavours we deal directly with international organisations and other countries. Such a decision carries serious implications for our trade, but sometimes defence of a principle must come first. This is something remainers never understood, failed to address in the referendum and remains one of the main reasons why they lost.
In particular was the matter of “sovereignty over our borders”. Though this is a mangling of concepts, it deals directly with freedom of movement – or rather EU citizenship.
To this day, though those who opposed Brexit maintain it was really all just the xenophobia of little Englanders. Even if that were true, it is not an illegitimate point of view. Humans seek the familiar in their surroundings. Globalisation, particularly EU membership, erodes the rights that distinguish citizen from visitor, affording visitors and transients equal status to the settled community. An attack on the very idea of citizenship and belonging.
Such issues have always escaped the remain side, who saw it only in terms of labour mobility for themselves and the contribution of incomers to GDP. Perhaps the main reason they lost the argument in 2016 was their focus on the economic argument, which was a secondary consideration for those contemplating a leave vote.
There was also the sensitive issue of benefits. A system notionally predicated on contributions should not be open temporary workers from overseas. Though in law, EU migrants were citizens, as far as the leave voting public is concerned, if you don’t have a British passport, you’re just not. Thus the extension of entitlements to EU citizens was to subordinate entirely the concept of British citizenship. This is why the black/blue passport took on such symbolic significance. Essentially if you take the view that the nation state is the only level at which democracy can be meaningful, then EU membership is a subversion of it. EU citizenship as a concept is one designed to weaken the status of the nation state.
Many of these arguments escape the average hardcore remainer, who continue to demand from leave campaigners a list of material “tangible” gains from Brexit they can compare with the superficial rights and perks of EU membership. Intangible conceptual answers such a “sovereingty” are taken to mean there are no benefits to Brexit – or nothing that they themselves would assign value to. The shallowness of the remain argument often reveals itself in these such conversations. Seldom do you hear an honest principled case for ever closer political and economic union.
Cutting to the chase though, it boils down to the view, not unreasonably, that the British parliament should be making our laws and not implementing the EU integrationist agenda. Eurosceptics always feared that what was being done could not be reversed, subsuming the UK into a supranational bloc, losing ever more control over what they regarded as core levers of statecraft. To a very large extent, they were not wrong. We now find reversing what was done comes at an unimaginable cost.
The damage done by Brexit, therefore, is less to do with our decision to leave, rather it is a consequence of the arrogance of those who took us this far in without consultation or consent – which was ultimately an attack of the sovereignty of the people. Though our departure is marked by arrogance and incompetence, it only matches that same hubris that took us in to begin with.