Three basic points. Firstly it wasn't required to begin with. It's largely a series of entitlements tacked on to basic human rights for the purposes of Federalist integration. It is an instrument of ever closer union laying the groundwork for "social Europe". It has no bearing on the core principles of human rights which owe their existence to the British system anyway. We are not withdrawing from the European Convention on Human Rights either. Not yet at least.
Secondly, this does not repeal any of the laws passed to implement the Articles. ECFR brings into being a number of laws via directives (as I understand it), all of which is standalone domestic legislation. There is next to zero chance of them being repealed.
Finally, it refers to the Union as the legal territory and grants it authority. "This Charter reaffirms, with due regard for the powers and tasks of the Union". If we are ending EU jurisdiction then it has to go, simple as that. That anyone would vote to retain ECFR demonstrates they have not actually read it. Bottom line... this is a total non-story.
This then begs the question of whether we want our own charter of rights or whether we revert to the British model of having the constitution undefined but embodied by the broader statue book. If we are to have something like the ECFR then it should be looked at in the context of wider constitutional reform.
This issue, however, reaffirms my conviction that Brexit is the right thing to do. For the UK to be a genuine democracy then the laws must be derived from the people and subject to their alteration according to their own common values. The people, not parliament must be sovereign.
In this we hold that there are some universal values to be enshrined as the cornerstone of our constitution which is why we uphold the European Convention on Human Rights. The EU, though, increasingly deviates from the fundamentals.
This mode of governance places undue obligations on governments extending far beyond the scope of human rights thus entrenching a technocratic system of government trespassing on the fundamentals of civics. It renders democracies inert, giving rise to politics being pursued through the courts, thus making it the domain of QCs and their wealthy backers.
One might even call them the new ruling class. It would explain their near universal opposition to Brexit. It is a substantial loss of power over us. They lose a key method in subverting the public will. More than anything it is this that draws the battlelines over Brexit and the process of withdrawal. It is on these lines we measure whether the instruction to leave has been honoured.
The remainers see the EU as a proxy for a hard coded constitution. They do not trust democracy. They believe themselves to be the embodiment of enlightenment and a backstop to the whims of the barbarous masses. Power is not something to be entrusted to the people. This is the crucial disagreement. Either you believe in democracy or you don't.
Thus, if we want a principled Brexit it does require that we end the jurisdiction of the ECJ. This to some extent explains the opposition to the EEA in that Article Six, embodying the principle of homogeneity appears to trample on the core principle of Brexit.
Without prejudice to future developments of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement.
This is where I differ from mainstream Brexiters. As per the illustration above, the EEA agreement mainly covers technical governance - issues which barely touch on constitutional fundamentals. This is really a question of what we are prepared to go to the barricades over. Technical regulation may be a cause of petty annoyance but its inherent utility, in my view, is worth the trade off.
Brexit is chiefly about ending the political integration that undermines our own constitution and broader sovereignty through such instruments as the ECFR. Brexit is about ending "ever closer union". This is where it is necessary to the make the distinction between political union and economic integration. The EEA primarily pertains to the latter. As to the applicability of fundamental rights, I leave you to judge.
The measure is whether there are sufficient democratic protections, which in my view there are. Though Article Six of the EEA agreement is unequivocal, the systems that the EEA brings into being create a space for dialogue with safeguard measures giving us the nuclear option.
What should be noted is that irrespective of Brexit, the UK is still obliged conform to a number of regional and global conventions where previously the EU has acted as the middleman. We will find in a number of instances that the removal of the EU aspect brings little remedy.
Many Brexiters hold the expectation that Brexit will be fundamentally restorative. This ignores the march of globalisation and underestimate the influence of international agreements which have influenced the EU's own legislative agenda. In many respects there is no turning the clock back and little scope for acting unilaterally.
I would remind those Brexiters that Brexit really is only, fundamentally, about one thing. Leaving the EU. No longer being part of the European federalist project. Great as that is, whatever else our aspirations may hold, the fight is only just beginning.
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