Brexit, Sovereignty and Reality

by | Jun 20, 2016

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About Paul Craig

Professor Paul Craig was educated at Worcester College, Oxford, where he subsequently became a Fellow and Tutor in law in 1976. He was appointed to a Readership in 1990, and then became an ad hominem Professor in 1996. He was appointed to an established chair in 1998, the Professorship in English law, which is held at St John's College Oxford. He was made an Honorary QC in 2000, and an Honorary Bencher of Gray's Inn in the same year. He has lectured at many other institutions across the world, including in North America, Europe, China and Australia. He is editor of the Clarendon Law series, co-editor of a monograph series on EU law in Context, and is on the editorial board of various law journals. He is also a delegate of Oxford University Press, and was the alternate UK member on the Venice Commission for Law and Democracy. His research interests include Constitutional Law, Administrative Law, Comparative Public Law and EU Law, and he has published widely in these areas.


Paul Craig “Brexit, Sovereignty and Reality” (OxHRH Blog, 20 June 2016) <> [Date of Access]

The referendum campaign has been marked by claims and counter-claims, with each side contesting the ‘facts’ advanced by the other. Voters will form their own views on the respective ‘guilt’ of the two sides, although my own view is that the factual distortions of the Brexit camp are far more significant. With the referendum vote fast approaching it is therefore especially important to clarify some of the factual misconceptions that might not be immediately apparent to voters. An oft-repeated claim by the Brexit camp is that a vote to leave will enhance our sovereignty, such that the UK will be able to make its own autonomous choices about matters currently decided by Brussels. This conceals far more than it reveals.

First, the message constantly portrayed by the Brexit camp is of a top-down Brussels machine imposing rules on Member States against their will, the corollary being that we can reclaim our sovereign birth-right in a post-Brexit world. This bears no relation to reality. The Member States are the principal architects of the Treaty rules that govern the EU. It is they who crafted the initial rules and it is they who have modified them in every subsequent Treaty amendment. Most EU legislation requires approval from the European Parliament and the Member States in the Council, and the UK has voted in favour of the very great majority of this legislation.

Second, in a post-Brexit world any individual or company seeking to do business in the EU would continue to be bound to comply with EU rules if they wish to sell goods or services into the EU.  To be sure the company might decide that it does not wish to be thus bound, and hence pursues sales elsewhere, but that choice is equally open to it now. If to the contrary it does wish to trade it must comply with the EU rules, and that is so whether it is selling cars, washing machines, financial services or insurance. The real difference in a post-Brexit world is that the UK will have no seat at the table and hence no voice when the relevant regulations are being drafted. The absence of voice may be especially significant in relation to financial services broadly conceived.

Third, even if an individual or company does not trade in the EU, the UK’s sovereignty over economic and regulatory issues is nonetheless significantly circumscribed. This is because a great many standards that regulate safety and the like are in fact set at the global level, through transnational or international regulatory organizations. These standards are binding factually and legally in the UK and this will not change in a post-Brexit world. What will change is that the UK will, once again, have little or no voice in the framing of these rules. The principal players in this regard are the EU and the USA, and while we currently have influence through the former this will cease if we leave the EU. The point being made here is equally relevant in relation to the new breed of trade deals, such as the emerging Transatlantic Trade and Investment Partnership, TTIP, currently being negotiated between the EU and the USA. There are valid concerns about the content of such deals. The reality is nonetheless that the UK will have no influence in this regard if we leave the EU, but we will be very significantly affected by the rules if the agreement is finalized.

Fourthly, immigration is a principal concern in voters’ minds, and so too is crime. The issues are highly emotive. It is therefore especially important to be as clear as possible about the facts. In relation to migration, the numbers quoted by the Brexit camp repeatedly conflate those coming to the UK from the EU, and from elsewhere. The reality is that the latter constitute more than 50% of the relevant numbers, and this figure would of course be unaffected by the UK leaving the EU. The Leave camp studiously ignores discussion of the benefits that EU migration has brought to the UK economy. The most detailed economic study calculated amongst other things that the net gain to the UK economy from migrants from newer Member States was approximately £5 billion, that the relevant figure for other EU migration was in the order of £15 billion, and that EU migrants claimed welfare benefits less than UK citizens. It should also be recognized that if we leave the EU we will no longer be able to take advantage of EU rules on asylum and immigration, and we will therefore have to handle all such claims directly on our own soil. Much the same is true in relation to crime, in the sense that the UK could no longer benefit from the European Arrest Warrant, whereby thousands of criminals have been sent back to other EU countries to face trial there. This problem could only be resolved by negotiation of 27 separate extradition treaties, a situation which law enforcement agencies view with extreme unease.

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  1. Simon Ho

    I definitely applaud your points. I believe that if is definitely very risky to Brexit and though one knows the future Remain is very much a better option. At least for now!

  2. Sebastian

    On the national level, the referendum on the United Kingdom’s membership of the European union (“Brexit”) is nothing other than an excercise of a right of dissociation similar to the one contained in Article 4 of the Constitution of the Union of Socialist Soviet Republics (USSR) of January 1924 under the heading: “Sovereign Rights of the Member Republics”. “Each one of the member Republics retains the right to freely withdraw from the Union”.

    The late Professor Thomas Franck termed the right of dissociation as a right of exit. (Franck, (2000) “The Empowered Self”, Law and Society in the Age of Individualism”, Oxford University Press, p.101).

    Freedoms of association (and dissociation) is not just a privilage for states. Individuals also have the right to dissociate themselves from the majority state if agents of that state abuse and mistreat him. It is no different to a right of divorce in the context of family law involving domestic relationships and marital breakdowns.

    What I don’t understand from Professor Craig’s “Brexit, Sovereignty and Reality” is his use the the words “we” and “our”. Who are the “we”? What is “our”? Who qualifies to comprise as part of the “our”? I certainly am no stakeholder in the affairs of an island that I have no control over irrespective whether it is a member of the European Union or not.

    I am a sovereign individual yet the British government do not invite me for consultations about future proposals nor do the British government seek my express approval whenever they seek to enact a new law. They do it without my consent in a situation were I have given them no consent to act on my behalf. How possible is it then to engage in a micro brexit, that is to say, break away from the United Kingdom and create a micro state as a state within a state inside the United Kingdom? If the British (at national level) believe they have a right of dissociation at the macro level (a break from the EU) then they must also conceive of the right of dissociation at micro level, that is to say, the right of individuals to break away from the United Kingdom and create their own micro kingdom (as a state within a state).

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