David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.
The curious thing about being in Ministerial office is how much power other people have. There is something you want to do – or something you want to stop – and despite your supposedly exalted position it turns out that not everything is under your control. It can be annoying.
The most contentious element of this phenomenon in recent times has, of course, been membership of the European Union. This meant that a large number of policy options that Ministers might want to pursue were no longer available. It did not matter who voters elected, the Government was not permitted, for example, to scrap VAT on domestic fuel. This, it was argued, is undemocratic and therefore we should take back control and leave the EU. It was an argument that many found persuasive in the 2016 referendum.
One point that has been highlighted in recent days is that membership of the European Union is not the only constraint on the policies that the UK government can pursue. In the past week, we have had controversies over compliance with the EU Withdrawal Agreement and Northern Ireland Protocol, the European Convention on Human Rights and the rules of the World Trade Organisation.
In each case, the Government finds itself in the position of wanting to do something but is constrained by international obligations. It does not want border checks in the Irish Sea but such checks are imposed by the Northern Ireland Protocol. It wants to deport asylum seekers to Rwanda but may only do so in accordance with the provisions on the European Convention on Human Rights. And it wants to maintain tariffs on Chinese steel but may only do so in accordance with WTO rules.
The Government has a problem with each case and with each case it is taking a different approach. With the Northern Ireland Protocol it is trying to argue that there is a legal justification for unilaterally changing the terms of the agreement (its arguments are widely seen as hopeless, but let us not dwell on that here). In other words, it is looking to change the obligations placed on it. On the ECHR, it is going through the legal process arguing that it is complying with existing law. And, from what we know about Lord Geidt’s resignation as the Prime Minister’s Ethics Adviser, the Government appears to be considering openly breaching WTO rules.
If the Government were fully to embrace the logic of ‘take back control’ it would simply pursue the policy it wanted and damn the consequences. If the UK Government with the confidence of the House of Commons wants to remove border checks, deport asylum seekers and subsidise domestic steel, why should it not?
At this point, we collide with reality. An absolutist approach to sovereignty comes at a very high cost.
The Northern Ireland Protocol was designed to resolve a problem that ultimately allowed the Trade and Cooperation Agreement to be concluded. This gives the UK and the EU tariff-free and quota-free access to each other’s markets. Some of us think this deal is inadequate but it is still of value. Jettison the Protocol, and we risk losing tariff-free and quota free access to EU markets.
The ECHR is less transactional in its nature, but was driven forward by the UK during the 1950s as a means of protecting individual rights at a time when Europe’s future as a liberal democracy was far from assured. It has helped secure liberal values, exerted pressure on authoritarian regimes and, more recently, played a crucial role in agreeing a framework to Northern Ireland that has ensured peace.
As for the WTO, its rules based system has enabled free trade to thrive in recent decades which has contributed to our own prosperity and lifted millions out of poverty across the globe. Protectionism is a bad policy but it can be popular. As my old friend, Daniel Hannan, points out, tariffs on Chinese steel polls well but results in higher prices for UK consumers. We have an expert Trade Remedies Authority that has looked at this, and advised that the tariffs should be scrapped, which we should follow. (There are times when policy based on evidence and expertise is preferable to adhering to the whims on public opinion, as Daniel most definitely did not put it.)
Not only would the UK be faced with immediate problems of retaliation and enforcement if were to step away from our international obligations but we would also be influencing the international environment for the worse. Other countries might follow suit, contributing to a breakdown in cooperation and trade. This is not in the interests of the UK or the world as a whole.
This is an argument that really should not be terribly contentious. Of course, we can have a debate about whether – in a specific case – the costs of restricting the actions we can take are justified by the associated benefits from the agreement we can reach with others but this should be a debate about trade-offs not absolutes. The challenge here is that this may not be possible in a post-Brexit world.
We are already hearing the argument being made – including, for example, by Suella Braverman, the Attorney General – that people who voted for Brexit will find it very hard to understand that the Government is not able to implement a policy it wants on immigration because it has been overruled by a European Court. There is increasing talk that the Conservatives might fight the next general election on a pledge to take the UK out of the ECHR, to ‘complete Brexit’ and fully take back control.
I have no doubt that is exactly how many Brexit voters will feel, just as many will feel that the UK Government should be able to subsidise UK steelworks and determine for itself how Great Britain-Northern Ireland trade should work. Maybe those are the voters the Conservative Party wishes to focus upon – I suspect they may be – but it would be a disastrous course of action.
To deliver good and effective government, it is necessary to accept that certain constraints apply, that sometimes sovereignty has to be compromised in return for international cooperation. Decisions in this area lie along a spectrum; this is not about absolutism.
This argument is, however, very hard to make if you have spent the last few years suggesting that any such restrictions on Ministers’ discretion as a consequence of our relationship with the EU constitutes an affront to democracy. Unless Ministers get a bit more grown-up in their rhetoric, they are going to set expectations at a level they cannot – and should not – meet.