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Analysis
Brexit and the problem of sovereignty

Brexit and the problem of sovereignty

White paper raises unsettling questions about extent of EU influence

by Joergen Oerstroem Moeller in Singapore

Wed 18 Jul 2018

The Brexit model espoused in the UK government's white paper opens a path to a close – but not too close – relationship between Britain and the European Union. It tries to reconcile 'Brexit is Brexit' histrionics with fundamental principles enshrined in the EU treaties.

We will soon know whether this is palatable for a majority in the UK parliament. It will take a bit longer before the EU position is known. The odds are not good.

The proposal suffers from fundamental weaknesses, substituting rule of law with non-binding mechanisms borrowed from international treaties.

The EU's lifeblood is the enrolment of all member states in common policies that make everyone better off over time. If a member state incurs costs when applying a law, it will be compensated by another one from which it benefits. The panoply of common policies leads to higher economic growth, amplifying the shared benefits. The single market epitomises this philosophy. If the UK adopts a system whereby it can opt out of 'disadvantageous' laws while handpicking those that benefit its economy, this will upset the cost-benefit balance among EU member states.

The white paper attempts to soothe this, saying that parliament is expected to 'scrutinise any [EU] legislation to bring the proposals into UK law'. However, 'as would be its right, the UK parliament could ultimately decide not to pass the legislation, but it would be in the knowledge that there would be consequences from breaking the UK's international obligations, as there would be for any international treaty.' There are three problems with this approach. First, a declaration of intent has rarely been seen to overrule national interest. Second, any parliament will test the limits of its powers. And third, the EU is not like 'any international treaty'.

Disputes are to be referred to joint committees, which can take advice from the European Court of Justice on EU law and British courts on UK law. But what happens if these institutions offer opposing opinions? The white paper floats the idea of 'binding independent arbitration'. It will raise eyebrows in the EU that Britain is prepared to accept such a procedure while rejecting the ECJ, an institution designed to resolve disputes about EU law. The risk is considerable that Britain and the EU will find themselves in a world of mutual recriminations, poisoning the atmosphere and deterring businesses from investing in the UK.

Britain as a member of the EU voted on all legal acts, and sovereignty was pooled with other member states. Decision-making was transparent, laid down in treaties. The proposed 'common rule book for goods including agri-food' set out in the white paper compels Britain to accede to rules and regulations after they have been through the EU decision-making process, with each member state voting. The European Commission and the European Parliament play a pivotal role in decision-making; Britain's status will be that it can 'share its views with the EU' but will 'not have a vote on relevant rule changes'. In joint committees to address disagreements, EU decision-making procedures will define a common position after each member state has cast its vote. Through these procedures, individual EU member states and European institutions will have influence on rules applied in the UK.

Since becoming leader of the Conservative party in 2016, UK Prime Minister Theresa May has reiterated that she will seek 'the best deal possible as we negotiate a new agreement' with the EU. After the release of the white paper, however, it appears the UK has merely rejected the pooling of sovereignty within an institutional framework and instead opted to give away sovereignty to independent arbitrators, EU institutions and 27 European nations. To quote one of President Donald Trump's very few thoughtful remarks on Brexit from his visit to the UK, 'I'm not sure that's what people voted for.'

Joergen Oerstroem Moeller is Senior Research Fellow, ISEAS Yusof Ishak Institute, and a former State Secretary at the Danish foreign ministry.

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