Brexit: Regain “Sovereignty”?

Sihang Zhang
Vol. 37 Associate Editor

About a week ago, Britain’s Prime Minister David Cameron announced June 23rd as the date for a referendum on the country’s membership to the European Union.[1] On that date, the British people will make their most important decision for the future of their country. The influence of the vote will spread deep and far outside of the country, with serious global economic impact.[2]

While the advocacy of Brexit—Britain departing from the European Union—has been expressed for several years, the prospect has been increasing in popularity. Today, largely thanks to Europe’s migration crisis and financial crisis around the euro, the poll shows Brexit is not a mere theoretical idea, but a real possibility, with some surveys even finding a majority of voters wanting to exit the EU.[3]

 

While David Cameron, together with his top ministers and Britain’s largest businesses clearly desire to remain in the EU (arguing that Britain should remain in order to retain its position and rule-setting influence in the EU and mitigate negative repercussions from other members by renegotiation with EU[4]) Vote-For-Leave side also enjoys prominent supporters including the justice secretary, Michael Gove, and London’s mayor Boris Johnson, who has alleged that David Cameron has failed to achieve what he promised: to secure a substantial reform of the EU through changing the terms of Britain’s membership.[5]

Economy condition and financial strain is one of the obvious motivations underlying Brexit. The single currency of the EU greatly prolongs the reach and recovery period from any financial crisis. Besides economic weakness, politics plays a significant role in the stay or remain debate. As early as the 1980s, Margaret Thatcher had voiced her worry that the existence of a European Superstate would help create centralized power, bureaucracy and business-politicians collusion, all of which would undermine member states’ democratic accountability.[6] Indeed, such concern has only magnified over years and is highlighted by the current debate, as London mayor Mr. Johnson recently called the EU a political project that was in “real danger of getting out of proper democratic control.”[7] This self-governing democracy argument also touches on an essential right of sovereignty: self-determination. The EU is an institution of 28 member states that functions through a structure consisting of supranational individual institutions and intergovernmental collaborated resolutions by the member states. Because the EU has established a single market through a collective arrangement of laws that are binding in every member state, as much as 84% of the law in EU member states are derived from the EU.[8] Under such framework, Britain’s hands are tied in determining how to deal with many thorny issues; various European bureaucrats and judges can interfere with almost everything. Take immigration for example: half of Britain’s migrants come from the EU. Unlike the U.S. which can freely decide on its own whether to open its border to Mexico and consider the issue an essential element of its sovereignty, under the EU’s freedom-of-movement rules, Britain cannot stop millions of other Europeans from coming into its territory any time they like without violating binding rules. Although the restriction imposed by the EU on its member states’ self-autonomy is theatrically based on “consent” and should by no means be unexpected, there may be a reason for members to reexamine the fundamental relationship when the superstate becomes politically dysfunctional and economically unreliable.

On the other hand, there are far-reaching costs and risks of pursuing Brexit and regaining “sovereignty.” By being the first country ever to exit the EU (if it really happens), Britain can expect a prolonged negotiation process and great uncertainty over regulation due to the transition, which will likely deter investment in Britain. One big concern is that by exiting the EU, Britain’s impact on the EU will significantly weaken.[9] Besides, Britain may need to pay a big price in order to regain full access to the European single market; a market that accounts for half of its exports. Another potential cost for Brexit is Britain’s relationship with Scotland.[10] There is a danger that Scotland might “exit” Britain if Brexit takes place, since Scotland views its relationship with the EU markedly differently than Britain.


 

The possible influence of Brexit on the British legal industry is profound. Given the fact that EU law is deeply interwoven into British legislation, the disentangling process is by no means easy and clear-cut. Most fundamentally, Britain will repeal the 1972 European Communities Act, which establishes the primacy of EU law over British law. After reestablishing the supremacy of British law, Britain will be free to accept or repeal any EU regulation as national interest directs and trade with the EU under the instrument of bilateral free trade agreements.[11]

Whether achieving “sovereignty” will be worth the hardship of disentanglement, the potential departure of Scotland, and decreased influence on EU regulation remains to be seen. One thing is clear: in a globalized world, it is hard to claim sovereignty in a pure sense without alienating oneself from the international playground.

[1] UK EU Exit Would Be Global Economy ‘Shock’ – G20 Leaders, BBC News (Feb. 27, 2016), http://www.bbc.com/news/uk-politics-eu-referendum-35677385.

[2] Id.

[3] Tim Montgomerie, A Better Britain Outside the EU, Wall St. J. (Feb. 19, 2016), http://www.wsj.com/articles/a-better-britain-outside-the-eu-1455917425.

[4] See A Background Guide to “Brexit” From the European Union, The Economist (Feb 24, 2016), http://www.economist.com/blogs/graphicdetail/2016/02/graphics-britain-s-referendum-eu-membership.

[5] Montgomerie, supra note 3.

[6] Id.

[7] See EU referendum: Time to Vote for Real Change, Says Boris Johnson, BBC News (Feb. 22, 2016), http://www.bbc.com/news/uk-politics-eu-referendum-35626621.

[8] Ben Clements, Britain outside the European Union, Institute of Economic Affairs http://www.iea.org.uk/sites/default/files/publications/files/Clement%20BREXIT%20entry_for%20web_0.pdf.

[9] The Real Danger of Brexit, The Economist (Feb. 27, 2016), http://www.economist.com/news/leaders/21693584-leaving-eu-would-hurt-britainand-would-also-deal-terrible-blow-west-real-danger.

[10] Id.

[11] See Nigel Lawson, Britain Outside the EU Would Stand Tall as a Free and Prosperous Nation, The Telegraph (Feb. 17, 2016), http://www.telegraph.co.uk/news/newstopics/eureferendum/12162009/Britain-outside-the-EU-would-stand-tall-as-a-free-and-prosperous-nation.html.