Colm Keena: Whatever Brexit is about it is not sovereignty

If the consequences were not so tragic you could almost laugh at the idea of the Brexit vote as an exercise in restoring "sovereignty".

After one of the most reckless political escapades in recent times for a mature democracy, it is becoming clear that the triggering of the process for leaving the European Union will involve a serious loss of control for the UK over its own affairs.

Once the UK applies to leave, article 50 of the Treaty on European Union stipulates that it must conclude an agreement with the EU for withdrawal “taking account of its future relationship with the union”.

The conclusion of such an agreement with the EU will mark the departure of the UK from the union. But the process must be completed within two years or else the UK is automatically out, barring unanimous agreement from the other member states that they grant the UK an extension.

The process of withdrawal is an immensely complicated one, and an extension to the two-year timeframe will almost inevitably become an issue. The UK could find itself at the mercy of each individual EU member state, including states for whom the right of their citizens to travel within the common market is a key issue. These are also states that have good reason to feel insulted by the rhetoric that featured during the Brexit debate concerning their citizens.

It would be a disaster for the UK to be turfed out of the EU without proper provision being made for continued trade. It would also, of course, be a disaster for the EU, and is probably unlikely to happen. But entering into a scenario where such a decision rests with states you have just been insulting is a strange way to go about “winning back” control over your own affairs. Likewise, the debate as to what type of agreement the UK might negotiate with the EU as part of its departure illustrates the chimera-like nature of the idea of sovereignty.

Internal market

Sovereignty is the right of a governing body to govern itself without interference from outside forces, and no doubt there are choices the UK can now make that no one can stop it making. But if it wants to continue trading with the European Union in a manner resembling the way it has up to now, the UK will have to comply with the rules the union’s member states have built up to facilitate an internal market that strives to create a level playing field. Allowing participation in the internal market to a state that is not obliged to obey the relevant rules and obligations that apply to EU member states would create a competitive advantage for that state and make a nonsense of being a member of the EU.

As the Irish expert on EU law John Temple Lang has stated, any deal with the UK covering access to the internal market would see the EU insist on contributions to the EU budget, free movement of people, overall reciprocity of economic obligations, and primacy of EU law over UK law. In exchange for access to the EU market in any given sector, the UK would have to be bound by the same rules as EU member states.

Rules and obligations

Outside the EU, it is hard to see how the UK will not be bound by the same rules and obligations that it is bound to now, including the jurisdiction of foreign courts, but have less influence over those rules. It sounds like the opposite of a gain in sovereignty.

Ironically, one of the ways in which UK sovereignty does apply is in relation to the triggering of the article 50 process. The referendum result has no legal effect and the article 50 rules do not give the EU any say in when, if ever, the UK must trigger the departure process. The article says any member can “decide to withdraw from the union in accordance with its own constitutional requirements”. Legal experts say that what these constitutional requirements are, is not clear. The UK, of course, does not have a written constitution, and its parliament is centre-stage.

It is up to the UK to decide when, or if, it will "notify" the European Council of its intention to withdraw, thereby triggering the provisions of article 50.

Internally, the UK could argue that a vote in parliament not to notify the European Council trumps the referendum result, which created no legal obligations. Likewise an election that results in a new prime minister who is against Brexit. The politics of that, of course, is a different matter.