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Sovereignty; the legislative burden of voting for Brexit; Brexit and internal security; Article 50 and the forlorn hope of a re-re-negotiation

Lord Hannay of Chiswick


 I really do admire your temerity in inviting me, a non- lawyer, to speak to this August audience for a second time. I shall try not to trespass too far onto purely legal territory which will be covered by Alan Dashwood when his turn comes; in any case when it comes to the issue of the "legal validity and irreversibility " of the deal the Prime Minister struck last month in Brussels I  could not possibly improve on Alan's lapidary evidence offered recently to the European  Scrutiny Committee of the House of Commons. But since the European Union is ,if it is anything, a community of laws, I suppose even a non - lawyer must be prepared to express  a view now that our membership of that community is to be put  at risk in a few months' time.
              First a word or two about sovereignty that nebulous, Banquo's ghost of a concept which makes its appearance on stage whenever one or two Eurosceptics are gathered together. In wilder moments  some of their leading lights even speak of a Declaration of Independence,as if our Parliament had not endorsed every single decision involving the pooling of sovereignty,including those very important ones arising from our membership of the UN, NATO,the IMF , the Council of Europe and our acceptance of the compulsory jurisdiction of the International Court of Justice,none of which ,oddly enough, seem to trouble our Eurosceptic advocates of Brexit very much. All those decisions,surely ,present a similar choice,between sovereignty hoarded or sovereignty pooled,between effective use of sovereignty and ineffective assertion of it.
After all there can be no greater pooling of sovereignty than Article 5 of NATO  which commits us to military action,not excluding a nuclear exchange,if any other member of NATO is attacked. So by all means let us discuss sovereignty in the EU context but let us do so in a calm,well informed way which takes account of the realities of our own era and which does not try to reconstruct a golden era that never existed and never now could exist.
            Then there is the hot topic we discussed when I last spoke to this audience ,Britain's involvement in EU Justice and Home Affairs cooperation over criminal justice matters. At that time,two years ago ,the Government had just decided to opt back into the 35 most significant pieces of EU home affairs legislation - membership of Europol,of Eurojust, of the Schengen Information System  ,the European Arrest Warrant and the exchange of criminal records. It did so quite explicitly on the grounds that it was in the national interest so to do; and that view was endorsed by massive majorities in both Houses of Parliament. Is it less in the national interest that we participate in that cooperation today than it was then ? No,it is more so- look at the terrorist attacks in Paris,the surge in human trafficking,the rise of cyber crime. Indeed last November the Government additionally opted in to what are called the Prum decisions which provide for exchanges of DNA and other matters  needed for criminal investigations. Again this was endorsed by a massive majority in Parliament. Well all that is now at risk on 23 June; so much for those  who say our internal security will be enhanced by withdrawing from the EU. The hard fact is that Britain's internal security neither begins nor ends at the water's edge -  otherwise known as the English Channel.
              And then there is another,less frequently considered consequence of a Brexit which would be fraught with legal knock-on effects -the need to replace all the laws,policies and  programmes which are currently based on EU laws and decisions. You do not need to accept the often grossly exaggerated claims of Eurosceptics about the proportion of such laws and decisions which are currently " dictated by Brussels"  to appreciate that the quantum is significant and that replacing it by purely national decisions will clog up the parliamentary timetable for years ahead. Nor are we talking about mere technical tweaking . We are talking about how to support agriculture,how to regulate fisheries,how to encourage innovation and scientific research,at what level to set our new external tariff,about environmental protection,about business regulation. You do not hear much fromEurosceptics about the direction in which they think these policies should go,less still about the delay and confusion that the transition  to them would create right across broad swathes of our national life. One reason you hear so little about this is because the supporters of Brexit are themselves in fundamental disagreement over them. Some are free traders,some are protectionists;some are from the extreme right of politics some from the extreme left. So do not go looking for legal clarity or certainty there.
                No legal issue is arousing more than the as yet untried  workings of Article 50 of the treaty,the procedures for a member state to withdraw from the EU. That we would have to trigger  Article 50 if the vote on 23 June favours leaving does not really seem in doubt- the Prime Minister has said that is what his government would do .One      alternative ,simply unilaterally repealing the 1972  Communities Act would not only mean breaking our treaty obligations but would precipitate the immediate severing of all European and benefits like unimpeded access to the Single Market and would mean waving goodbye to any prospect of a broadly positive and consensual agreement over our  future relationship with the rest of the EU . Another alternative often canvassed is that we should use a "leave" vote to start a new renegotiation of our terms of membership . But there is not a snowball's chance in hell of that meeting with a positive response,even if it was not inconsistent with both the text and the spirit of Article 50,which is about the terms of leaving not of staying. So two years or perhaps more of uncertainty is all that is certain if we are compelled to go down that road.
             I suppose some  would dismiss my remarks this evening as being part of what is coming to be known as Project Fear. But the risks I have outlined  are real ones,not just imagined ones,and they do need to be seriously addressed in any national debate such as the one we are embarked on now. That is why  I hope that real lawyers,not  just amateurs like me,will weigh in to that debate  and thus help the public to work out the pros and cons of the choice they are being asked to make.                              ,

 

 

 

 

 

 

 

 

 

 


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