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How accomplished was our Brexit negotiator at explaining Brexit?

Jim McConalogue, 19 February 2020

Britain’s own Brexit negotiator David Frost was both eloquent and thoughtful in his speech on Monday, setting out the British government’s attitude and plans for a trade deal. His speech pictured Brexit as a kind of counter-revolution. Having pursued the creation of the European Union itself in which a new European, transnational governmental system “overlaid on an old one” of nation states, a second revolution was in order. This process recognised a rekindling of national feeling, a desire for national decision-making and the revival of the nation state. Brexit, in this sense, is Britain’s own expression but it continues to unfold in different forms across the whole continent of Europe.

Through the weaving narratives of Edmund Burke, Frost’s speech looks back to the argument that the abstract foundations of the French Revolution ignored the complexities of human society. “The state”, to Burke, “was more of an organic creation, entwined with custom, of tradition and spirit.” Frost rightly draws the contrast that in Britain, the EU’s institutions were not felt to be entwined in this sense – being wholly more “abstract”, “technocratic”, “disconnected” or in some cases, actively “hostile to national feeling”.

In a land where institutions had evolved gradually and where governance is “pretty deep-rooted in historical precedent”, for Frost, it was conflicting to then incorporate a form of government in which institutions arise out of design rather than evolution, and political authority (in part, at least) rested outside national boundaries. Frost describes that as a reason for why the slogan of the Leave campaign in 2016 ‘Take Back Control’ became such a powerful one and garnered such strong public resonance.

Frost’s view on deep-rooted, evolving historical precedent mirrors arguments in my own book, ‘The British Constitution Resettled’ exploring parliamentary sovereignty in the UK, in which I argued essentially that EU membership strongly unsettled the historical precedents underpinning UK parliamentary decision-making. Successive governments adopted practices which, although preserving fundamental legal rules, were at odds with the stability of constitutional rules afforded by gradually evolving past historical precedents.

What is very evident is that since 1973, for better or worse, the UK incorporated EU institutions which unsettled those precedents. Parliament’s subsequent place since the referendum on Brexit in June 2016 and the scrutinising of the terms of the withdrawal agreement (now enacted) constitute an enhanced, new constitutional resettlement. They allow for a realignment of parliament with the historical precedent of consent and its sovereignty.

On the specific terms of Frost’s speech, this means Britain is surely heading for a Canada-Free Trade Agreement-type relationship, which the EU has itself said is on offer, albeit there have been some misunderstandings about those previous commitments. Alternatively, Britain could move over to trade on Australia-style terms if that is not possible. Britain urges this policy because ‘sovereignty’ is meaningful and enables national decision-makers to set our own rules as its legislators see fit.

David Frost’s words could not have been more apt in describing how sovereignty means the ability to set your own rules in a way that conforms with our own conditions. For example, his emphasis on supporting British agriculture and promoting environmental goods “relevant to our own countryside” marks a paradigmatic shift. Britain will have to look at its own farming practices that “reflects our own climate”, rather than being forced to work with rules designed for conditions in France, Italy or Spain.

The claims to sovereignty and “running your own affairs” means it will become much easier to get people involved in taking decisions and easier to subsequently change those decisions, neither of which applied to our historic brush with European governance.  

In retaining that “ability to set laws that suit us,” as Frost proclaims, is “to claim the right that every other non-EU country in the world has.” His point: the Commission’s ongoing desire for EU supervision on a so-called level playing field issues is a paradoxical position to take. Recovering political and economic independence in full, after all, “is the point of Brexit.” Britain only wants what other independent countries have.

And the only reason we came down to this negotiating position such as having “open and fair competition provisions” based on Free Trade Agreement (FTA) precedent is purely because the model of an FTA and the ordinary precedents that exist within agreed FTAs is already set out. They detail the most appropriate provisions “for the relationship of sovereign countries in highly sensitive areas” relating to how their jurisdictions are governed and more importantly, underlying it, “how their populations give consent to it.”

It overwhelmingly points therefore to building on the approach that perhaps Britain had desired all along, which as Frost suggests, was merely that we wanted “a relationship of equals.”

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