Brexit means sovereignty

6 August 2016

9:00 AM

6 August 2016

9:00 AM

We know what people voted against,’ say half-clever ­pundits, ‘but it’s far from clear what they voted for.’ Actually, it’s very clear: the ­British voted to leave the EU and take back control of their own laws. They didn’t ­dictate precisely what kind of deal we should have with our neighbours after leaving: that is for ministers to negotiate. But when Leave campaigners invited people to ‘take back ­control’, voters understood what that meant: legal supremacy should return from Brussels to Westminster.

Remainers spent the campaign trying to suggest that the EU was just one among several international associations in which Britain participated. It was, they wanted us to believe, a club, like Nato or the G20, in which we agreed to abide by common rules in order to secure common objectives. All such ­associations, they argued, involved some loss of sovereignty. If we wanted ­‘undiluted ­sovereignty’, averred Sir John Major, we should ‘go to North Korea’.

Not for the first time, Sir John under­estimated the electorate. People could see that the EU differed from every other international body in that it presumed to legislate for its member states. Membership of Nato or the G20 may mean ceding power in ­certain areas; but it emphatically doesn’t mean ceding sovereignty — that is, the ultimate right to determine laws.

If Nato or the G20 aspired to unitary statehood, they, too, might become subjects of referendums. So far, though, no other body in the world has awarded itself supreme legal authority. I write ‘awarded itself’ deliberately. The primacy of EU law was not in the Treaty of Rome. Rather, as even committed federalists admit, it was invented by the European Court of Justice in a series of expansive ­judgments in 1963 and 1964.

So the EU’s treaties are unlike any other international accords. Instead of binding their signatories as states, they sustain a separate legal order, superior to national laws and directly binding upon businesses and individuals within states. In any conflict between a parliamentary statute and a ruling by the European Court of Justice, our courts automatically uphold the latter. You don’t have to be a lawyer to know in your bones the EU has a unique power to boss us around. Brussels has progressively extended its remit into most non-economic areas: criminal justice, environmental protection, social policy, immigration, public health, employment law, defence.

Most recently, it has engaged in a massive power-grab by adopting the Charter of Fundamental Rights and Freedoms, allowing the European Court of Justice to rule on almost every aspect of national life. When the Blair government signed up to the charter, ministers dismissed it as no more justiciable than the Beano. Yet it is now being used by Abu Hamza’s daughter-in-law to challenge her deportation from the UK on grounds that her son is an EU citizen. When people read of such cases, they know that it is idiotic to describe the EU as a club. In the 1970s, Lord Denning likened European law to an incoming tide, pushing against the flow of our rivers, causing them to burst their banks. In 1990, towards the end of his rich life, he revised his metaphor: ‘No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses — to the dismay of all.’

On 23 June, people voted to restore Britain’s political independence. This point is worth stressing because, since the poll, various Remain supporters have become overnight experts on what the other side ‘really’ wanted. Leavers, we keep being told, were voting against immigration, or political elites, or inequality — anything, in fact, except the EU membership specified on the ballot paper.

Against the various theories offered by pundits, we have one massive data set. On polling day, Lord Ashcroft’s field workers asked 12,369 people why they had just voted as they had. The answer was unequivocal. By far the biggest motivation for Leave voters was ‘the principle that decisions about the UK should be taken in the UK’, with 49 per cent support. Control of immigration was a distant second on 33 per cent.

Addressing the concern of that 49 per cent is, on one level, very straightforward. Parliament simply has to repeal Sections 2 and 3 of the 1972 European Communities Act — the clauses that provide for EU law to take precedence over UK law.

The sensitivities around repeal are not legal but diplomatic. How can we carry out that abrogation while retaining the goodwill of our allies? Might we, for example, replicate some of our existing EU obligations through bilateral treaties, either open-endedly or for a guaranteed period? Should we aim at a hard exit, opting out of most EU regulations and becoming Singapore to its Malaysia? Or a soft exit, keeping the bulk of the existing arrangements and continuing to adopt many of the same standards as our neighbours for reasons of economy of scale? These are important questions — but less important than the thing that everyone agrees will now happen, namely a recovery of parliamentary supremacy. We might end up with a Switzerland-type association with the EU, or a buccaneering blue-water policy, or something in between — but all those options would be vast improvements on where we are now.

Once the EU loses its legal power to enforce decisions on us — and extract money from us — the balance is tilted. We may well choose to continue to participate in some European schemes; but we will be doing so as an independent nation in voluntary ­association with others. Think of the relationship between Canada and the United States. When it comes to civic, military, commercial and security links, you won’t find two closer partners. Yet Canada has sturdily refused to be drawn into the political union that knits together the 50 states across her border. She controls her own foreign policy, commercial relationships, embassies, frontiers, citizenship rights and courts. Unlike those of, say, Idaho, her judges and legislators are not answerable to a superior power.

Britain’s relationship with an increasingly united EU should follow a similar template. We should aim to maintain the closest alliance commensurate with political independence. Repealing the 1972 Act will make the ­United Kingdom fully sovereign — in a way that Japan or Switzerland or New Zealand take as read. Grant that, and the rest will follow.

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