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The sovereignty case for Brexit
31 Jan, 2018

Let’s make Leavers’ case for them – though ours is better

Leavers do not say why sovereignty matters. So London4Europe Committee Member and former Home Office senior civil servant Michael Romberg makes Leavers’ case for them – and the stronger case against.

We can disregard the bad arguments that Leavers put forward

The EU’s laws are not made by the unelected Commission. They are made by the directly elected European Parliament and the Council of Ministers – members of the elected governments of member states. The UK Parliament could have made a better job of scrutinising EU legislation and mandating and validating the executive’s role. But that is a matter of UK procedures, not the EU’s.

Nor is the EU some alien organisation or imperial power. It is a club of which we are a member. The complaints of Boris and Jacob Rees-Mogg about the UK becoming a colony or vassal state of the EU during the transition period essentially tell us that we are not one now, no matter how much Leavers tried to portray us as such.

Why it really is better to write our own laws

The essential case is that the smaller the population covered by a law-making body the more likely the laws are to reflect that population’s wishes.

If Lincolnshire wrote all its own laws they would be more suited to Lincolnshire than the laws passed by Westminster that reflect all of England or the UK. That is the basis of devolution.

So it is a bit surprising that Leave voters in places like Lincolnshire are not pressing for secession from England given the differences between London and the internationally minded big cities on the one hand and the Leave areas

Most of the time it is likely that the difference between an English law and an EU law would be quite small. We share a common culture with the Continental countries – differences are in emphasis and organisational traditions.

What Leavers wish to change

It is after all quite striking that – even now, a year and a half after the referendum - the list of laws that Leavers wish to change is so short. How different from say the peoples of Central and Eastern Europe who wished to leave the Soviet Union or to escape Soviet domination. They knew what freedoms they wanted: freedom of speech, fair trial, freedom to use their native language. Leavers struggle to point to anything much that they actually wish to change.

The main law to be dropped is the EU’s Charter of Fundamental Rights. Even there Ministers cannot get their story straight about whether they wish to drop it because they do not like it or because its provisions are covered by other human rights laws.

Now Ministers are floating dropping the Working Time Directive – from whose most contentious parts we have an opt-out, so what is the point?

What really needs Brexit for change

But if we left the EU we could have policies that were outside the European consensus. That would be the case whether the change the UK made was to bring in true socialism or a hugely deregulated economy and society, or whether it was to bring back hanging or to fulfil Theresa May’s ambition of leaving the European Convention on Human Rights.

Striking is that no mainstream party is currently advocating policies outside the European mainstream. Although some in the Labour party have said that Brexit is necessary to implement Jeremy Corbyn’s vision, nothing in the Labour manifesto (and almost nothing in the Conservatives’) actually required Brexit (apart from immigration control). They may of course have more radical agendas that they are not revealing.

Why pooling sovereignty is better

Lincolnshire pools its sovereignty with the rest of England/ UK for a number of reasons, apart from the accidents of history.

Law-making and implementing is expensive and it is cheaper to do it jointly. After Brexit, the UK will have to replace about 37 existing EU agencies. It is likely that the number of staff needed will exceed the UK’s share of the EU’s staff.

But the main reason why Lincolnshire pools sovereignty is because the convenience of having the same laws as the next county outweighs the disadvantage of not having exactly the law you want to have. It enables trade, job mobility, freedom of movement, common currency and so on across the UK.

That of course is why the UK agreed to pool our sovereignty with other countries’ in the EU. Some things are best decided locally, some nationally, some at the EU level and some at global level. When is it best to decide at the EU level?

One example is when an activity crosses borders and individual countries are too weak or small to do anything much about it. Environmental protection is the most obvious example. Getting big multinationals to pay tax or respect laws they find inconvenient (eg privacy) are others.

Another is when countries wish to do one thing but are hampered by worries about whether other countries will undercut them. In addition to environmental protection, state aids to industry fall under this heading. With rules set at EU level, governments can have more confidence that they will not pay a penalty for doing what they think is right.

Another is when it does not really matter what the law says but it is much better if it says the same for everyone. Product standards in the single market is the obvious example.

Before the referendum the Government had a balance of competence review about whether the split of powers was right or wrong. 32 reports looked at many aspects of our relationship with the EU. The European Parliament produced a useful summary. The studies record divergent views on whether too much or too little power lay with the EU. The Government did not after all publish an overall assessment. But the Senior European Experts Group (generally retired public servants of pro-EU views) concluded that that the reports had found that the location of powers between the EU and the UK was broadly in the right place (page 2). The Economist agreed.

Why the EU will write our laws if we leave

Of course, the future of Brexit Britain will be of a county that spends much of its political life forecasting what the EU will do, trying to influence the EU, responding to what the EU has done. We will say that we are introducing law X of our sovereign free will. That will be true. But the reasons why it will exactly mirror an EU law that we had no hand in shaping will be obvious.

The EU is big and dynamic enough to be a “regulatory magnet” – countries and companies adopt its standards in order to be able to trade with it and to keep processes simple. The closer the relationship that is wanted, the more rules we have to follow. Alignment is a one-way street.

For example, an analysis in the Financial Times shows that that has happened with the EU chemicals regulation REACH, where even some USA firms have become wholly REACH-compliant.

The idea of the EU as a “regulatory magnet” is developed by Erika Szyszczak in an article for the University of Sussex Trade Policy Observatory in the context of the EU/Ukraine association agreement.

Conclusion

We have to reframe the terms of debate. When Leave say that free of the EU we can make laws that suit us better they are right. We need to point out however that we will often derive more benefit from sharing laws with our EU partners. The positive case for pooled sovereignty in certain areas is clear. And if we are anyway going to adopt EU laws, how much better to be in the room when they are being decided.