EU Referendum


Brexit: reorientating the debate


09/12/2016




The charade in the Supreme Court is over, for now, and with the "excitement" in the Commons also over, we are back on the dreary treadmill, trying to second-guess the Delphic pronouncements from Mrs May's office, as we try to work out what her next move is.

At least we have the small consolation of knowing that we will see a plan before Mrs May sends her formal Article 50 notification to Brussels, where Mr Tusk can read it from the comfort of his new offices in the £300 million "space egg" building.

Then, as Andrew Duff points out in The Times, Mrs May must reveal her negotiating position before the negotiations start, otherwise the 27 remaining EU member states will be unable to negotiate.

Then, whatever the EU is told, we will get to know, not least because the EU side will be transparent, especially the European Parliament which has the right to be fully informed and consulted on all aspects of the Brexit negotiations.

On that basis, there is actually no great tactical advantage to be gained. And in the few months between the notification and now, all we're going to get is the usual noise, while the ill-informed speculation continues unabated.

Even if the Supreme Court finds against the Government, the Article 50 procedure will be triggered and the negotiations will start. The only practical difference will be a vote in Parliament after another interminable debate, where the same-old, same old arguments will be rehearsed yet again.

Reviewing the Wednesday debate, what struck me then was the sameness of the arguments, with the only light relief from the boredom being the fast-diminishing novelty of hearing MPs parade their ignorance on the customs union.

As to the Tory Right, their obsession with the ECJ and "sovereignty" is getting more than a little tedious, as is their constant mantra of "taking back control", as if Parliament has even thought through precisely what that means.

By and large, the bulk of technical legislation will still come to us via statutory instrument – albeit some of it might come direct to Whitehall from its initiating global and regional bodies rather than via Brussels.

As to the ECJ, the Independent reports that Mrs May is acknowledging that it will take many years before we are able to detach ourselves completely from its influence - if, in fact, we ever do

A Government source has been telling The Independent that "separating EU and UK law is like separating conjoined twins. Not ones that are attached at the arm, but ones attached at the head".

"You need", he says, "to take it very slowly and carefully. Every single nerve, every single synapse is important and if you cut through the wrong one it could have devastating consequences", adding: "It's going to be devilishly complex".

In fact, a complete divorce is never going to happen. The ECJ is an active contributor to the growing corpus of international law, while the different national legal systems are increasingly interdependent, conscious of rulings outside their territories.

Just as the independent Scottish legal system takes note of the precedents set by the English High Courts – as indeed do the Indian courts, nearly seventy years after independence – even the US courts are not necessarily going to remain aloof from the influence of the ECJ.

When finally we do achieve a formal separation from the EU, what I think will happen is that we will become increasingly aware of my "double coffin lid" effect. Where, hitherto, the effects of globalisation have been obscured by membership of the EU, once Brussels can no longer be blamed for all our ills, we will have to start recognising that there are other power brokers in the game.

When push comes to shove, there is actually very little difference between adopting an EU technical regulation on food standards and taking on board exactly the same standard from Codex, adopted by virtue of the WTO SPS Agreement.

What very few people realise is the extent to which we are subject to the rulings of diverse international organisations which have binding effect. For instance, the OECD adopts "decisions" which are legally binding on member countries, of which the UK is one.

So far, the OECD has adopted 28 decisions, ranging from the Governance of the Codes of Liberalisation of Capital Movements to the Adoption of Radiation Protection Norms.

Then, of course, there are the increasing number of financial services instruments initiated by G20 and coordinated by the FSB, which are dominating the regulatory sphere that governs one of our largest commercial sectors.

All of this requires a fundamental reorientation of the debate. The old notions of sovereignty are outdated, and the idea that Parliament is going to resume its old ways, and legislate for King and Empire is a quaint anachronism which has no place in this modern world.

That, it seems to me is the bigger problem. Our MPs appear to have virtually no knowledge or understanding of this wider world. And although the Tory Right embraces the rhetoric of global trading, their MPs seem unable to appreciate the practical implications of their ambitions.

If the UK is to resume its place as a global player, it is rejoining a very different world from the one it left in 1973. There are more and different players and the UK will have to work in a partnership of equals, rather than as ruler of Empire.

The essence of this partnership will be one of cooperation, concession and compromise. The UK Parliament will no more be able to call the shots than it can now. Whether they can react to that new reality remains to be seen, but at the moment there is no sign of the necessary adjustments being made.