Friday 7 May 2021

The realities of sovereignty

One way of telling the story of Brexit is that it was sold to the British public as, and perhaps believed by its advocates to be, a project to regain sovereignty but without any economic costs and, even, with economic benefits. Since that was impossible, when it came to be delivered, sovereignty was prioritised despite the economic costs. Of course, there is a huge flaw in that story, which is that the idea that EU membership meant a loss of sovereignty and Brexit meant regaining it was simply false or, at best, as demonstrated in Anthony Barnett’s superb essay from 2018, based on a concept of sovereignty so dated and naive as to be worthless.

Nevertheless, for Brexiters, and perhaps many leave voters, it had a meaning, which had two, related but different, aspects. One was that a country should and could decide ‘for itself’ what rules to follow. The other, more blatantly nationalistic, was that this country, in particular could and would get ‘more for itself’ on its own than it could within the EU because, as Vote Leave insisted (see slide 10 of link), “Great Britain is a great country” with the fifth largest economy, G7 membership, a permanent seat on the UN Security Council, and significant intelligence and military capability.

Sovereignty in practice: latest news

What we are now seeing in abundance are the realities and limitations of those ideas of sovereignty, even within their own terms. It was already plain in the Trade and Cooperation Agreement (TCA) which reflects the way that the UK prioritised sovereignty over anything else. Thus what resulted was, in effect, a tariff-free deal for domestically produced goods and very little more. All of the currently emerging costs to industries and consumers flow from that, including the extensiveness of the checks needed to comply with the Northern Ireland Protocol (i.e. because a ‘deeper’ TCA would have meant a correspondingly ‘thinner’ Irish Sea border).

Norway non-agreement

The most obvious new example is the failure to reach a fishing deal with Norway, with potentially devastating effects on British cod fishing. Before, the UK benefitted from the agreements made between the EU and Norway, which is not part of the Common Fisheries Policy (CFP). Now, it must strike its own deal with Norway but has not been able to. This is an interesting development because, unlike negotiations with the EU, it is not presented in terms of Britain being ‘punished’ for Brexit or as a failure by Norway to recognize Britain as a ‘sovereign equal’. So a lot of the standard Brexiters’ rhetorical smokescreen is stripped away and the reality emerges: UK sovereignty is circumscribed by that of other countries, even quite small countries can and will resist the UK’s demands, and they are more able to do so now that it is not an EU member.

Jersey row

Fishing is also central to this week’s drama over the permits that, because of Brexit and in line with the fishing chapter of the TCA, French fishermen now need to fish in Jersey’s waters (it has arisen now because, until the end of April, there was an ‘amnesty’ under which the pre-Brexit arrangements continued). It’s a highly complicated story as all fishing stories are, but particularly so because of the distinctive constitutional status of the Channel Islands. Thus it is not actually about CFP, but it is about Brexit because the TCA superseded the Granville Bay Agreement, dating back to the nineteenth century but last amended in 2000, which had governed fishing rights in these waters. Scrapping it as part of Brexit was strongly lobbied for by the Jersey Fishermen’s Association during the TCA negotiations. Separately, the UK also chose to leave the 1964 London Fisheries Convention (causing problems for fishing around Guernsey, Alderney and Sark which have been more quietly dealt with by agreeing an extension of the interim arrangements with the EU).

Brexiters see ‘taking back control of our waters’ and being ‘an independent coastal nation’ as emblematic of regaining sovereignty. But the inevitable consequence is to encounter the sovereignty of other countries. For this was not, as some Brexiters are inevitably spinning it, a row with the EU but with France, although the EU is ‘siding’ with France in saying the permits are not being issued as the TCA says they should be (£) (the UK government disputes this – I do not know who is correct, but there are now talks underway).

This carries two lessons. First, that the EU will tend to stand up for its members against third countries, which is one of the ways sovereignty is magnified by membership. Second, it underscores that EU membership does not end national sovereignty. Nor is it necessary to leave the EU to engage in nationalistic posturing to appeal to nativist voters. Hence, with elections in both countries in prospect, foolish and ridiculous words from French politicians threatening to cut off electricity supplies to Jersey were matched by foolish and ridiculous actions from the UK in deploying Royal Navy vessels to observe what turned to be a rather limited ‘blockade’ of St Helier by French (and some Jersey) trawlers. For all the furore, the drama is already fading but it or similar rows have plenty of potential to flare up again.

At one level, all this is (just) yet another Brexit mess, and a reminder of how Brexit has thrown a rock which produces waves and ripples which are now showing up in small and large ways. Interestingly, despite the political rhetoric, as the participation of some of them in the blockade shows, Jersey fishermen are highly sympathetic to their French colleagues, recognizing that they’ve all been caught up in this mess. It also bears saying that as long ago as March 2017 the House of Lords EU Committee warned the government of the dangers Brexit posed for the Channel Islands. But my point here is that this episode illustrates the consequences of a free-for-all between ‘sovereign equals’.

Lugano Convention

This week’s third lesson in the realities of sovereignty, just announced though long-trailed, comes with European Commission’s recommendation that the EU should not accept Britain’s application to re-join the Lugano Convention on cross-border enforcement of legal judgments. Technically, membership is not confined to EU or even single market members, but the Commission’s view is that the UK’s relationship with the single market is now so distant that it should not be re-admitted to the convention. Inevitably this is described by Brexiters as ‘punishment’ but it’s actually no different in kind to the Norwegian fishing non-agreement: other powers have the right to decide not to agree to what the UK wants, and they will sometimes, even often, exercise that right. The eventual outcome will depend on whether the - yes - sovereign member states of the EU decide to follow the Commission’s recommendation.

It doesn’t even matter if, as some may think, the European Commission or Norway or France are miscalculating their interests: that is their prerogative. In fact, much of the Brexiters’ case was based on claims about what was and was not in the EU’s interests. Hence all the stuff about the UK trade deficit, German carmakers and so on. As a matter of fact, these claims were proved wrong – as many of us knew they would be – and the EU prioritised the integrity of the single market. Again, it’s irrelevant to argue that the EU ‘should have’ made a different calculation of its interests. Brexiters have to face the world as it is, not as they imagine it ought to be.

A permanent negotiation

This basic fact is not going to go away. What Britain now faces – not temporarily, but for the foreseeable future – is an ongoing process of negotiating with the EU and others, constantly facing choices about what it will sacrifice in the name of sovereignty, and constantly facing the reality that others have powers, rights and choices which they will exercise as they see fit. That is true both in general but also in relation to specific aspects of the TCA (Jersey fishing permits being a minor example) where there are phased implementations.

Currently, that means primarily the negotiations over the Northern Ireland Protocol (NIP). Several reports this week suggested that the EU is offering some flexibility in its implementation but within the basic parameters of the agreement, and proposing UK alignment with EU Sanitary and Phyto-Sanitary (SPS) rules. This, at a stroke, would remove many of the Irish Sea border checks. So far, the UK government still regards this as incompatible with sovereignty even though, at least for the time being, it doesn’t actually propose to diverge significantly from EU SPS standards.

The issue is, rather, that alignment means ‘dynamic alignment’ (i.e. when the EU rules change, the UK’s are bound to do so) and it’s this which would supposedly violate sovereignty. It therefore becomes a theological argument about whether the UK’s SPS standards are the same as the EU’s because they are agreed to be aligned or because they just happen to be the same at the moment. It’s true that the UK might want (or have) to change SPS as part of a future trade deal, especially with the US. But since, as has been emphasised this week by US Secretary of State Anthony Blinken, that is at best some way off, it is very hard to see why a temporary alignment with the EU could not be agreed.

After all, the UK government would be happy with, and is currently seeking, an ‘equivalence’ agreement (in other words, an agreement in which, whilst standards might not be the same in each market, they are deemed good enough for both). But that doesn’t work from an EU point of view, primarily because it involves a high-trust relationship with a third country that has not shown itself to be very trustworthy during the Brexit process, and about which there are lingering memories of the BSE epidemic as well as one with a shortage of Official Veterinarians (which also a problem for the current arrangements). Additionally, the volume of trade with the UK is much greater (and differently configured) than that of those third countries (such as New Zealand, which is the model usually touted) with which the EU does have SPS equivalence agreements.

And, again, if the UK were to decide, perhaps because of a trade agreement with the US, to substantially change its SPS rules then an equivalence agreement with the EU would presumably go out of the window anyway. Plus I think (I’m not sure – this is a horribly complex topic) that if EU SPS rules changed significantly then any equivalence agreement would have to be renegotiated anyway, so the practical distinction, on sovereignty grounds, between ‘dynamic alignment’ and ‘equivalence’ seems a fuzzy one. (For an excellent explainer of the concepts of dynamic alignment, equivalence and trade agreements in the context of Brexit, see trade expert Dmitry Grozoubinski’s ExplainTrade briefing).

In practical terms, then, dynamic alignment would mean the UK automatically changing the rules (or exiting the agreement) when EU rules changed whilst equivalence would mean re-negotiating (or exiting) the agreement. To any normal person this surely seems like some mediaeval debate about how many angels can dance on the head of a pin. It’s perfectly possible, and there’s just the tiniest sign of it, that what will be created is something which in substance is dynamic alignment but which the UK will call equivalence.

No coherent strategy

To re-iterate, whilst negotiating the operation of the NIP is the biggest immediate issue, the underlying one is that the UK-EU relationship is going to be the subject of a never-ending negotiation, and all the time the UK is going to have to make decisions about what to prioritise: the Brexiters’ peculiar version of sovereignty, or economic and political reality. That is inevitable simply because, like every other country in the world, but more so because of economic and geographic connection, the UK faces the reality of EU regulatory superpower deriving from market size.

It doesn’t seem that there is any coherent strategy for, or even understanding of, this from the UK government. For example, having made an issue of not recognizing the diplomatic status of the EU Ambassador to the UK, the government has this week agreed to do so. That’s the right decision, but by not making it from the beginning the UK squandered good will by posturing – for nothing. This is, precisely, a sign of an absent or incoherent strategy. The same will be true if, after marching up the hill of unilaterally breaking the NIP, the government quietly marches back down and accepts SPS alignment. If so, again it would be the right decision but reached via a foolish route.

Moreover, our relations with the EU cannot be separated from those with other countries for at least two reasons. On the one hand, the UK needs the EU’s support – political, diplomatic, and economic - in its antagonistic relationships with, especially, Russia, Iran and China. In this respect the recent ‘Global Britain’ Integrated Review was inadequate (see section five of link), since it barely touches on the UK-EU relationship despite it being a pivotal one. Though here, too, there are tiny signs of a more realistic approach quietly emerging.

On the other hand, the UK’s primary ally, the US, is deeply concerned with UK-EU relations in general, and the security and political situation of Northern Ireland in particular. This week saw the first face-to-face meeting between Dominic Raab and Anthony Blinken and though couched in diplomatic terms the message was clear: not only will the US not countenance anything that violates the Good Friday Agreement (translation: ‘Brexiters wanting to rip up the NIP, beware’) but it wants “political and economic stability in Northern Ireland” (translation: ‘make the NIP work’).

Irresponsibility or cynicism?

In the face of these realities, the question is how far the UK government is willing to push the Brexiters’ idea of sovereignty. The answer hinges on whether the government is irresponsible or cynical (most likely it will be ‘both’, but it needs to be ‘neither’).

If it is irresponsible then it will push on with the naive sovereignty agenda, making absurd provocations such as that of the EU Ambassador and silly gestures with Royal Navy ships, trashing its relations with the EU and the US by flouting international law, indifferent to the economic and political damage, and indifferent to the security situation in Northern Ireland. It may well do that if there’s no domestic political price to be paid or, indeed, a political benefit as a result.

If it is cynical, it will quietly yield on what to most people are arcane technicalities about, say, SPS whilst bigging up false claims about what Brexit has achieved. This would rely upon Brexiter MPs and commentators being gullible and ignorant, but that’s not a completely outlandish expectation. We’ve already seen this approach deployed with misleading or simply untrue claims about Brexit and vaccines, about freeports, and, most recently and perhaps most ludicrously, about Brexit enabling Britain to resist the aborted football super-league plans.

The UK-India ‘trade deal’

It is also evident in overblown claims about the UK’s post-Brexit trade deals. This was on display again this week when Liz Truss asserted that Brexit had allowed the UK to do a ‘trade deal’ with India. In fact, for the most part, it was a commercial deal of the sort that UK could, and did, make whilst an EU member, just as EU members like Germany have. It’s true that it also contained a Memorandum of Understanding (which may, though it’s by no means certain, eventually lead to a Free Trade Agreement with India), and that couldn’t have been done as an EU member. But the overall claim was misleading although, inevitably, jumped on by those Brexiters who don’t understand that the term ‘trade deal’ is an imprecise one, and not necessarily the same as a Free Trade Agreement, as a vindication of Brexit. In any case, the actual economic benefits of any eventual trade agreement probably won’t be very large, certainly compared with the loss of trade caused by exiting the single market.

These points about trade policy are boringly unoriginal, having been made endlessly in one form or another by many people, including me, for years. But they still matter, because the ongoing false claims about trade deals root back to the basic issues with which I began this post. That is, they pretend that ‘regaining’ sovereignty was not just cost-free but economically beneficial. So it is important to say that some of the claimed benefits did not require this ‘sovereignty’ whilst, overall, the costs are much higher than any benefits which may derive from it.

Moreover, it is important to confront the persistent slipperiness of Brexiters in the way that when challenged about the economic costs they very often resort to saying ‘you don’t understand, it wasn’t about the money it was about regaining our freedom, which is priceless’. But not only was that not how Brexit was sold in 2016, it is also not what is being said about the benefits of an independent trade policy. If Brexiters want to justify themselves in economic terms, then they can’t use ‘priceless’ sovereignty to escape a proper accounting.

But ‘we are where we are’?

I understand the view that ‘we are where we are’ and so there’s no point harking back to the false promises that were made. But I don’t accept it. For one thing, it is galling to hear so many Brexiters now wheeling out as arguments against Scottish independence precisely those they dismissed when made by remainers against leaving the EU. More importantly, the promises made in 2016 are not part of some remote past. Rather, they are only now, since the end of the transition period, actually playing out in terms of practical consequences. That is less than five months ago. So these are not dead issues and one way we know that is, indeed, because the Brexiters are still at such pains to churn out false claims to justify what they have done.

So if there is to be a ‘moving on’ and an acceptance that ‘we are where we are’ that has to start with an honest acknowledgment from the Brexiters – meaning, principally, the government – of where exactly it is that we are. And that means, even assuming that they may have done it in good faith (which requires considerable charity), acknowledging that this particular form of sovereignty they have created presents very serious problems.

If they are to be addressed, or at least ameliorated, it will require a patient diplomacy and a realistic recognition of the powers that other countries, and the EU, have and of Britain’s relatively (not, of course, entirely) limited power. In short, it requires the opposite of both the ‘cynical’ and the ‘irresponsible’ responses we currently see. I’ve mentioned in this post a couple of tiny signs this might happen, but I’m not holding my breath.


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My book Brexit Unfolded. How no one got what they wanted (and why they were never going to) will be published by Biteback in June 2021. It can be pre-ordered from Biteback, or via other online platforms, as a paperback or e-book.

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