Brexit and the law: is Britain really ‘taking back control’?

Sunday 14 October, 17:3018:45, Garden RoomWhose business is it anyway?


‘We will take back control of our money, borders and laws.’ That was the promise made by Brexiteers during the EU referendum campaign, and by Theresa May’s government after the vote. Yet when May unveiled her Chequers proposals, it seemed to many people that Britain would not ‘take back control’ after all. Central to the proposals is the notion that British goods will continue to conform to rules drafted in Brussels by the European Commission and interpreted in Luxembourg by the European Court of Justice. In the words of a leading Tory critic, Jacob Rees Mogg, Britain would become a ‘vassal state’.

Sovereignty, as the right of a nation to make its own laws, was traditionally seen as the hallmark of an independent nation state. Its desirability was central to the Leave campaign’s success. Even those who backed Remain studiously avoided arguing for a loss of sovereignty, but preferred instead to talk in terms of ‘pooled sovereignty’.

Yet despite its popularity, the notion of Britain as a sovereign state making its own laws remains elusive. Could it be that the proponents of European and global institutions have a point when they argue that sovereignty in the twenty-first century is no longer possible or even desirable? There are several different ways to interpret ‘Brexit’. For Rees Mogg and his allies in the European Research Group of MPs, any involvement of the EU in UK law would represent a failure to honour the referendum result. Conversely, another leading Brexiteer, Conservative MEP Daniel Hannan, has argued that ‘accepting some common standards for reasons of economy of scale, especially when those standards are largely set at global level, is not a betrayal of anything’.

Another example of the complications and nuances around Brexit is the different views taken by Vote Leave’s two most high-profile figures, Boris Johnson and Michael Gove, on the Chequers plan. While Johnson rejects the plan out of hand and resigned from the government rather than support it, Gove defended it, saying: ‘I’m a realist and one of the things about politics is you mustn’t, you shouldn’t, make the perfect the enemy of the good.’

Do the benefits of a ‘common rulebook’ outweigh the benefits of making our own rules? Maybe trade is now so global that Britain needs the protection of a regional trading block? If the Remainers are wrong about the level of EU influence in the UK, why is it proving so difficult for Britain to leave the EU and take back control of its money, borders and laws? Has Britain developed a legal and political order that suits the needs of powerful multinational companies at the expense of smaller, national enterprise – and, indeed, the wishes of voters? Are worries about a total break from the EU a fear for what a sovereign Britain might do with its sovereignty, leading to a bonfire of ‘progressive’ laws? Do proponents of European institutions have a point that sovereignty today is no longer possible or even desirable and the benefits of a ‘common rulebook’ outweigh making our own rules? Or is freedom worth the risk?