This article is an extract from a webinar talk given to the UK Association of European Lawyers by David Hannay, Lord Hannay of Chiswick, on 10 December 2020, reproduced with his permission.
A few words about that rather slippery concept summed up in the word ‘sovereignty’. If I had a gold sovereign for every occasion on which a minister or a government spokesperson has used the word since the negotiations for a new partnership began, I would be rich beyond the dreams of avarice. It tends to be deployed as if it was the ace of trumps, as if playing it simply stops the game and needs no explanation or rational justification. But the sovereignty argument is not that clear-cut. In reality nearly every international agreement this country signs, and there are many hundreds if not thousands of them in existence, constrains our sovereignty and inhibits our right to exercise that sovereignty unilaterally.
That was true of course of our membership of the EU which did not involve, as is often claimed, the loss of our independence as a sovereign state. How otherwise did we, quite legally, decide to leave? And how could France, another sovereign state and member of the EU, have the right to veto an agreement with the UK?
Here are three other examples of curtailed sovereignty, none of which has anything to do with the EU or our relationship with it. First, NATO, where Article 5 requires us to take action up to and including the use of nuclear weapons in defence of another member subjected to aggression. Second, we accept the compulsory jurisdiction of the UN’s International Court of Justice in The Hague, a court on which we now, regrettably, have no seat. And third, we are subject to the binding rulings of the World Trade Organization’s dispute settlement procedures, which we have, justifiably in my view, been defending vigorously against the attempts of the Trump administration to dismantle. Those rulings can authorise penalties to be imposed on our exports. Those three examples surely demonstrate that sovereignty is no knockdown argument; and that care should be taken in the use or, as I would argue, the abuse of the sovereignty argument.
The question of fisheries
And then there is the question of fisheries, which has figured large in these negotiations. On this both sides, the UK and the EU, have taken an ‘all or nothing’ approach from the outset, which has made the search for compromise solutions far more difficult to achieve. Again we have been subjected to one of those mantras so dear to our present government, that the UK is an ‘independent, sovereign coastal state’. Quite so.
But look back to the early 1960s, when the British government of the day (led by Conservative prime minister Harold Macmillan) took powers to extend our territorial waters from six to 12 miles to provide better protection for the fish stocks in those waters and to limit foreign fishers’ rights to fish there. At the same time, the government negotiated an international convention with the countries whose fishers were fishing there (principally from Belgium, France and the Netherlands) to protect what were called their ‘historic rights’ to continue to do so. So this London Fisheries Convention was negotiated at a time when there was no shadow of doubt that the UK was an ‘independent, sovereign coastal state’ and recognised as such; when there was no Common Fisheries Policy; and when the UK was not a member of the EU. In 2018, the government unilaterally withdrew from this London Convention before post-Brexit negotiations had even begun. Hardly, you might think, the most conciliatory way to proceed.
I fear this must all sound like a litany of woe. It is certainly not a cheerful scene, even if we were not in the midst of a global pandemic. But I hope it is also a reminder that we should not treat the fracture of recent years as somehow irreparable, but work to put more flesh on the bones of a new partnership with the rest of Europe.
