Tuesday, December 29, 2020

The European Union Withdrawal Agreement: A Very Brief Review (2020), by Sean Gabb

I know that many of my friends have looked at the massive block of text that is the final agreement of our withdrawal from the European Union, and decided that we have been tricked again. My own preference would have been for a complete break, followed by unilateral free trade abroad and a libertarian revolution at home. However, I have taken the trouble to read the text—not, I accept, with the fullest attention: it is, after all, 1,246 pages long. There may be hidden traps that my reading has overlooked. Certainly, the reality of any agreement is less its wording than the approach the various sides take to implementing it. Even so, what my reading suggests is that this is somewhere between passingly acceptable and a diplomatic triumph.

We formally left the European Union at the end of last January. Next Thursday evening, the transitional arrangements will end that kept us inside the Single Market. On Friday morning, we shall find ourselves in a new set of arrangements agreed between a sovereign United Kingdom and an equally sovereign European Union. These arrangements provide for continued trade without tariffs or quotas. They will not provide the same frictionless trade as we had inside the Single Market, where goods from Birmingham could be carried to Bratislava and sold there in exactly the same way as if carried to Manchester. They say little about trade in services. But they do give us better access to the European market than any other outside country has.

I suspect that, when they have finished their own reading, many of my friends will focus their criticism on the new oversight body that has been agreed between the two parties. This Partnership Council is set up under III.1 of the Agreement:

  1. A Partnership Council is hereby established. It shall comprise representatives of the Union and of the United Kingdom. The Partnership Council may meet in different configurations depending on the matters under discussion.
  2. The Partnership Council shall be co-chaired by a Member of the European Commission and a representative of the Government  of  the  United  Kingdom  at  ministerial  level.  It shall meet at the request of the Union or the United Kingdom, and, in any event, at least once a year, and shall set its meeting schedule and its agenda by mutual consent.
  3. The Partnership Council shall oversee the attainment of the objectives of this Agreement and any supplementing agreement. It shall supervise and facilitate the implementation and application of this Agreement and of any supplementing agreement. Each Party may refer to the Partnership Council any issue relating to the implementation, application and interpretation of this Agreement or of any supplementing agreement.

I think the criticism will be that this Partnership Council is just another European Union, and that it will make recommendations that are just as binding on us in effect as the rules of the old European Union, and that it will soon become a massive bureaucracy in its own right. The criticism is partly valid. As said, I would have preferred no agreement at all. But this is not a continuation of European Union membership under another name. It is an agreement under international law made by two sovereign states. It is an agreement made for limited purposes—the facilitation of trade, not an “ever closer union.” It is an agreement in which the joint parties will have equal weighting. It is also an agreement from which each party can have a clear and simple escape if it should prove inconvenient—see VII.8:

Either Party may terminate this Agreement by written notification through diplomatic channels. This Agreement and any supplementing agreement shall cease to be in force on the first day of the twelfth month following the date of notification.

We shall no longer be one member state among 28 in the European Union. We shall instead be a joint party to an agreement to which the European Union will itself be as subject as we are. New laws and regulations will no longer pass down from Brussels to London, but will instead rise from London or Brussels to the Partnership Council, from where they may or not pass down to Brussels or London. Whatever does pass down to London must then be put into effect in ways that we can see and understand, and by people we can see on television and vote out if we dislike them.

And this is the most important change. Nearly twenty years ago, I think I was the first to see the real objection to our membership of the European Union. For smaller countries, membership amounted to something like foreign rule. For us, it was always more a fig leaf by which our own ruling class was able to exercise unaccountable power. I said:

…I have no doubt that membership of the European Union endangers our survival as a nation of free individuals—but it does so by raising up a wholly domestic enemy.

During the past 30 years of European membership, our Constitution has been subtly amended. Some branches of government have been exalted as never before, others set on their way to extinction. The most obvious beneficiaries have been the administrators, the special interest groups—which include much of big business—and those politicians who learn to play the rules of the new system. These have become a ruling class largely freed from democratic control. Such control has only so far ever existed in nation states with liberal institutions. In these places, the authorities are directly accountable to a public opinion that may be divided on all manner of issues, but that is also agreed on certain fundamentals, and that is able to be moved one way or another by the force of argument. Let jurisdiction be transferred to a multi-national authority, and it does not need to face this kind of united public opinion. It becomes rather like the old Hapsburg Empire, which was able to maintain itself for centuries by playing off one national group against another, never having to justify itself to all the people as the French and British Governments had to do.

That is the European Union. The old democratic institutions remain, but are of decreasing significance. They have little real control over the decisions that affect our lives. Either they merely ratify those decisions, or they are not even formally consulted. At every point, this transfer of power is justified by the need to comply with obligations accepted under the various European Treaties.

We shall now have torn aside this fig leaf. There will be no more unaccountable power. The enabling law that was the European Communities Act 1972, as amended, is dead. No doubt, our ruling class will continue to make bad laws of every kind. Many of these will no doubt have the support of a deluded public opinion. But these are laws that will need to be made once again in the open. The old constitutional lines of authority have been drawn again. Power will be seen to be exercised by an executive more or less accountable to a Parliament that is, in turn, more or less accountable to us. We shall not again wake up one morning to find that—say—the electrical wiring regulations have become incomprehensible, while the people who have done this to us smile sadly and point across the water to Brussels, where things happen in foreign languages and in ways we have never fully understood. This reaction will not in itself make us a free country again. But it does give up the option to become free again.

The Agreement has a further advantage. So far, we British could talk about withdrawal from the European Union. We could, by a set of electoral revolutions, bully our ruling class into taking us out. But we are a rich and powerful country. We could face a future as a completely independent trading power, even if we might prefer a continued but looser relationship with the European Union. This has never been an option for the Poles, the Hungarians and the other small countries that have had their own difficulties with Brussels. So far, they have had a stark choice—put up with everything sent down from Brussels or return to the chilly world they faced after the collapse of the Soviet Empire. We have now given them a template. If the Hungarians and the Poles want their authoritarian Christian democracy, if the Czechs want the liberal democracy they romantically believe we in Britain still have for ourselves—things that are not permitted by continued membership of the European Union—they have only to demand their own seats on the new Partnership Council. I can see, within the next decade, a new order in Europe. There will be a free trade association between France and Germany, plus their satellites, and the United Kingdom at the head of half a dozen smaller members in the Partnership Council.

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I have not, I say again, read the Agreement will the fullest attention. Again as said, much of its impact will be a matter of how it is put into effect. But we appear to have got for ourselves, as home and in Europe, everything we could reasonably have wanted. If I had been shown the text in 2001, I would have dismissed it as an impossible dream. We are now five days from seeing it passed into effect.

On the whole, I still have little time for Boris Johnson. Since he caught the Coronavirus, stupidity appears to have been joined by insanity—see his endless wittering about a “green” recovery from the crash he engineered in March. But let us give credit where due. This Agreement is somewhere between passingly acceptable and a diplomatic triumph. Indeed, the more I skip at random through the text, the more inclined I am to think it a diplomatic triumph.

So the debate over Europe that has filled the whole of my adolescent and adult life is over, and the right side has won. We now turn to the real debate, which must be over the nature and scope of the British State. Let us hope we can have equal success there.

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