Political elites
“Sovereignty never went away,” Prof Laffan noted. It was there all of the time, in British political elites’ approach to international relations.
The UK has chosen to practice its sovereignty in a way that’s very damaging to its economy, she said.
“Can that hold, will it hold? I think there’s a big clash of models between the EU and the UK.”
Prof Laffan was speaking last week at a DCU Brexit Institute webinar on the future framework of EU-UK relations (5 March).
The failure of economic actors to impinge more on the Brexit talks’ outcome is a social-science puzzle, she said.
That the idea of sovereignty trumped material interests goes against all political-economy literature, she said.
It would be expected that active producer groups would work to make sure their industries got market access or protection.
Greatest slogan
However, Laffan said that ‘take back control’ was one of the great political slogans of the 21st century and it had huge impact.
“I would argue that Brexit is really about a clash of sovereignty practices,” Prof Laffan said.
“It’s a clash of models of how to handle the international system in the 21st century,” she added.
The future challenge is whether the UK will accept the legitimacy of the way in which the EU practices sovereignty.
Prof Laffan said she remained to be convinced about this.
Clash of models
“I think there is a clash of models that’s very deep, and makes it very difficult for the next phase of the relationship.”
Prof Laffan said the EU and the UK were nowhere near a stage of mutual respect.
Sovereignty, in its interface between law and politics, has explanatory power in how the trade agreement was arrived at, she said.
EU membership has an effect on legal sovereignty, without doubt, but the 27 EU Member States choose to practise a pooling and sharing of sovereignty, in those areas committed to by the treaties, she said.
As the EU expanded its policy range and became more of a polity, popular sovereignty had been impacted, with a lot of resulting tension, she said.
It is important to distinguish between sovereignty as a concept, and as a practice by states, she added.
Political imperative
Prof Laffan said former PM Theresa May had understood the political imperative to deliver Brexit.
In her significant post-referendum speeches, May framed Brexit in the language of red lines, sovereignty, friction and barriers, and moved away from the collective model of political union or supra-national institutions.
Dispute resolution
The EU would have wanted stronger level playing fields, Laffan explained, but as a substitute, stitched dispute-resolution-rebalancing mechanisms into the agreement.
“In other words, in the event of significant divergence, the EU can engage in unilateral rebalancing measures,” Prof Laffan elaborated.
“Since the UK didn’t want these provision, one has to see them as EU-driven provisions, the right unilaterally to retaliate,” she said.
Divergence does not come cost-free even if the UK is theoretically sovereign, she pointed out.
Cut-and-paste patchwork
Prof Laffan predicted a cut-and-paste patchwork of retained EU law – in environmental policy alone, 500 pieces of EU legislation are now domestic British law.
The same applies in areas such as copyright, climate change, emissions trading, GDPR, and gas and electricity.
All of these systems will have to remain aligned.
From a sovereignty lens, the wins for the UK are that it now has international public law, rather than EU law, and the right to diverge on regulations.
Migration
But the single biggest area of divergence is migration, Prof Laffan said.
“The UK does now control migration policy into the UK, and it has replaced free movement with its own regime,” she said.
“The UK has formally left the EU in terms of its institutions and agencies, but not its orbit,” Prof Laffan concluded.