Sovereignty and ‘Sovereignty!’

11th December 2020

One feature of contemporary politics in both the United Kingdom and United States is the way descriptive words and phrases have become slogans with a very different meaning.

This blog has already described the unhappy juxtaposition between ‘Law and Order!’ and law and order – and we now have a populist president in the United States using his power to pardon so as to place people above and beyond the law, while the populist government of the United Kingdom sought recently to expressly legislate that it could break the law.

And a similar distinction can be made about sovereignty and ‘Sovereignty!’.

In the United Kingdom it would seem that one explanation of the ongoing failure for a trade agreement to be finalised with the European Union is because of this ‘s’ word.

Here, as examples, are some recent tweets from the United Kingdom’s head negotiator.


So what does this ‘s’ word mean?

From a legal perspective, sovereignty is really about two things.


First, sovereignty is about the ultimate source of political power in any given polity.

In the United Kingdom, as its name suggests, the ultimate source of political power is the crown.

Some would say is not correct to even speak of the ‘sovereignty of parliament’ – the power of parliament to make or unmake any law always depends on a bill receiving royal assent.

Only with the crown’s approval does a law then have super-duper magical power.

Resolutions and motions of either or both houses of parliament may bind parliament but they do not have the same effect outside as legislation.

That is why I and others tend to write of ‘supremacy’ of parliament, not sovereignty.

The crown also is the source of political power elsewhere in the United Kingdom constitution.

It is the source of power – somewhat obviously – in respect of the so-called ‘royal prerogative’ – where the executive gets to do things which have legal effect without any legislative basis.

It is the source of power with ‘royal charters’, instruments which can have legal effects similar to legislation.

And the crown is the ultimate source of power for the judiciary, at least for the high court of England and Wales.

(This means that in constitutional terms, the two Miller cases on prime ministerial power can be characterised as being about the crown in the courts adjudicating on the powers of the crown as exercised by ministers so as to circumvent the crown in parliament.)

This form of sovereignty is quite unaffected by anything Boris Johnson and David Frost may or may not agree to with the European Union.

Just as parliament was always able to repeal the European Communities Act 1972, parliament will be able to make or unmake any law which flows from the post-Brexit relationship agreement, and that will be respected by the courts.

So this cannot be the meaning of sovereignty that Johnson and Frost have in mind.

Nothing in any post-Brexit trade agreement is relevant to this meaning of sovereignty at all.


The second legal meaning of sovereignty is not so much about the source of power but about legal capacity.

A sovereign thing can do and not do as it wishes.

And one thing a sovereign thing can do is to enter agreements with other sovereign things.

This is where Johnson and Frost appear to misunderstand the ‘s’ word.

For them, ‘Sovereignty!’ means that the United Kingdom cannot and should not enter into and be bound by any international agreements.

But one test of sovereignty is that a thing is capable of entering into international agreements – the cart is not before the horse.

In general terms, being able to accept obligations is the very point of sovereignty: that a nation state can enter into a treaty means that it is a sovereign state.

(For more on the fascinating history of sovereignty and treaties, see here.)

This is why, for example, Canada, Australia and New Zealand insisted on being separate signatories to the surrender instrument of Japan, and to not allow the United Kingdom to sign on behalf of the then empire.


Sovereignty thereby does not mean that the United Kingdom cannot and should not enter into international agreements.

Sovereignty means that the United Kingdom can do so.

And any international agreement means accepting obligations that restrict autonomy, for that is the nature of an obligation.

Under the North Atlantic treaty, for example, the United Kingdom has an obligation to go to war even if it not attacked itself

Article 5 of that treaty provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”

Some would say that Article 5 of the North Atlantic treaty is a greater interference with the ‘s’ word of the United Kingdom than anything which has come from the European Union.

And it is difficult to reconcile many statements of government-supporting politicians on sovereignty in respect of the European Union with their continued support for the United Kingdom being part of NATO.

Similar points can also be made for the United Kingdom’s obligations under the United Nations charter and indeed under any other international treaties.

Trade-offs on autonomy are a feature and not a bug of being a sovereign state.

An analogy is with being able to marry: when a person reaches their majority they can enter into a marriage contract should they so wish, but being in their majority does not compel them to either marry or not marry, and if they marry they can always divorce.

The Johnson-Frost approach to the ‘s’ word is confused.

They seem to think sovereignty means that the United Kingdom cannot and should not enter into international agreements, whereas sovereignty actually means that the United Kingdom can do so should it want to do so.


An indication of the United Kingdom government’s incorrect understanding of sovereignty was set out in a white paper earlier in the Brexit process:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

This is about “feelings” – not law or policy.

Brexit as therapy – so as to make the United Kingdom “feel” it is a sovereign state.

And this is the fundamental misconception of those who assert ‘Sovereignty!’ just to make themselves feel better.

Sovereignty exists anyway.

Sovereignty does not care about your feelings.


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40 thoughts on “Sovereignty and ‘Sovereignty!’”

  1. Great and much-needed post. First, you define sovereignty initially as the ‘ultimate source of political power’: do you mean to suggest that the constitutional order is brought into being by that sovereign entity? I’m not sure that would fit with the role you assign the Crown here. Second, where do the people sit in your definition of sovereignty, if at all?

  2. The key point about sovereignty is not just having it but what you do with it. Otherwise it is just Humpty Dumpties arguing about “which is to be master”.

    In the UK it is probably the Crown in Parliament, although you could make a case for sovereignty ultimately resting with the people.

    Not entirely coincidentally, there was an excellent “In Our Time” in June 2016 on the historical evolution of the concept of sovereignty, particularly the important work of the French lawyer and philosopher Jean Boudin in the 16th century.

  3. That rather sums up the whole sorry project. It is, at its very heart, a childish attempt by the petulant English Exceptionalists to make themselves feel better.

    1. …… And to make the country worse off, all in the name of sovereignty, whatever it’s meant to mean.
      As an aside, I’m a Brit living in Italy and was informed this week by Amazon that from January 1 any orders coming from the UK will be subject to customs inspections and duties.

  4. In this debate, “sovereignty” seems to be confused (or maybe conflated) with power. You can have all the sovereignty in the world but that doesn’t help you if a vastly more powerful thing wants to impose its will (or sovereignty) on you.

  5. “The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

    Surely you’ve just made that up, there’s no way even this absurd government would put that on record in a white paper.

    You must have hacked the website to make them look stupid.

    1. Cut & pasted from the paper: “2.1 The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

  6. Thanks for another very clear exposition, David. The U.K.’s position on sovereignty has now driven the negotiating parties to behaving like two bald man arguing over a comb. If it’s the government’s wish to lower employment and environmental standards it should say so clearly.

    1. No, I don’t think it’s two bald men fighting over a comb. It’s like one bald man trying to wrest the comb from a man with a full head of hair. And blaming the full head of hair man for his baldness.

  7. Thank you for this clear deconstruction of the magic word ‘sovereignty’. As you make clear, sovereignty is to be used – in contracts, treaties, even marriage – rather than hoarded and it is absurd to say that we cannot enter any agreement that infringes our sovereignty.
    Unfortunately, I strongly suspect that many of our leaders, especially the Prime Minister, have never thought this through and have not confronted in their own minds the disconnect between making an agreement – which by definition MUST limit in some ways our future actions – and ‘preservation’ of a mythical concept of sovereignty.
    Some of those around him, and especially David Frost, must surely know better, however.

  8. A variation on a theme.

    It is a tradition in my family to join a trades union on starting work as much, if not more for practical reasons than ideological ones.

    We give up a smidgeon of personal sovereignty, if I get that usage right in this context, to join a collective body and benefit from the vastly greater leverage that the combination has when negotiating pay and conditions, on behalf of its members, than those members would have, if they individually sought to do so just for themselves.

    Unity is strength as the motto of the Transport and General Workers Union used to put it.

    My family has a particular connection with a plastics manufacturing company in Perry Barr, Birmingham. It is why we claim a fair degree of insight into the trials and tribulations of both manufacturing and international trade.

    My maternal grandad, who worked for the company for decades, at one time had to negotiate his own pay with management. At the end of the negotiations, he was told to keep what he had agreed to himself and not share the information with his workmates.

    These musings were partly triggered by a Tweet yesterday by Tim Stanley. Stanley is a “Historian, leader writer for Daily Telegraph, contributing editor for Catholic Herald, Moral Maze, Thought for the Day, proud godfather.”

    He Tweeted, “Key bit of the EU’s no deal doc is this: member states must not do deals with UK separately for it undermines a bargaining power that “must be used to ensure a level playing field between the EU and the UK.” That’s it, that’s the goal, that’s what UK cannot accept in perpetuity.”

    One has to admire his capacity for cutting to the chase, but not so much his incomprehension of the value of being a member of a union.

    I have described the £4bn or so that we did not get back from our annual contribution to the EU, in one form or another, as our subscription to membership of the largest Single Market in the world, measured by per capita disposal income, and, amongst other things, access to the benefits of a skilled negotiating team, working on behalf of all EU members to agree trade agreements with third countries and combinations of countries.

    Stanley says he is an historian. We know Cummings is a big fan of Bismarck. Otto once said that in a world of five great powers, be in a combination of three. We have left a combination of 28, including ourselves, at a time of shifting power balances to become a curious hybrid of a weak trading nation, but one armed with an ever more obsolescent armoury of strategic nuclear weapons, two aircraft carriers that provide the illusion of significant force projection on the global stage and a seat on the UN Security Council.

    I voted Remain for a variety of reasons, not least the benefits of being in a union. However, I do not get all dewy eyed when trades unions are spoken about and I had serious issues with how my union, the Public and Commercial Services Union acted on occasion, but I felt that such behaviour was outweighed by the benefits of being a union member.

    Like the union of which I was member when I was in work, the EU is not perfect, but its strengths in my view vastly outweigh its weaknesses, its imperfections.

    Incidentally, the TGWU was founded by Ernest Bevin, who went on to become one of the greatest British Foreign Secretaries of any century.

    The chap who described himself as “A turn-up in a million” was instrumental in the founding of the North Atlantic Treaty Organisation.

    NATO was a response to Hitler picking off individual nations in the run up to World War Two. I am sure Bevin, no fan of communism or fascism, would be as pleased as punch to learn that in 2020, Warsaw looks to Berlin to assist it in fending off the unwelcome attentions of the fascist in the Kremlin.

  9. Very interesting. Thank you.

    The reference to the White Paper is fascinating. To me it defines Brexit – it is not about “Taking back control” but about feeling we have taken back control. So an emotional response which will always defy logical argument.

  10. The issue of ‘”Sovereignty!”, certainly to Brexiteers, appears to be largely based on a fundamental misunderstanding of border control.

    The hyperbole of ‘taking back control’ seems to be largely unchallenged, especially in the MSM, when we always had the ability to control borders, vis a vis immigration.

    Our immigration policy has been driven by economic and social policy, not the will of Brussels and we didn’t need a Brexit to change how we implemented border control and immigration.

    Or, for that matter, to change the colour of our passports, where we were never compelled to use burgundy anyway.

    1. Try getting a Brexiteer to explain how we are full up when migrants want to come here and earn a bob or two, but are not full up when Johnson, cynically, offers five years of temporary residence in the UK to 3m Hong Kong Chinese, irrespective of their personal circumstances and habits.

      I say cynically, because I am confident Johnson made the offer, convinced that the Chinese Government would make it impossible for those to whom it was made to take it up.

      But as we know, Johnson lives in the moment.

      Castro famously shafted Reagan, when Ronald made a similar offer to Cubans as Johnson’s to the Hong Kong Chinese.

      Castro opened the prisons and mental asylums and said Florida, 100 miles that way.

      Florida has had a thriving illegal drugs trade ever since.

      China has the option to do a Castro to Johnson at a time of their own choosing when it would have maximum effect.

      Had the first person, after Johnson made his offer, to seek to flee from Hong Kong to the UK by air not been taken off the plane by the Chinese authorities then the poster boy for this immigration policy would have been a demonstrator who had stabbed a policeman during a demonstration.

      What was that about taking back control of our immigration policy external to the EU in which the EU had no say?

  11. Indeed, but the bigger question is why are they using a concept to derail a deal? It is opined that this is all in aid of vulture/disaster capitalists that will be picking the bones of the UK economy clean – the problem with that is that Bojo et al will get the blame; it was all to escape EU laws closing off-shore tax havens (but the UK had a veto that it was never shy of using) or is it simply the festering Eurosceptic hatred (mainly within the Tory Party) of a minority that seeks to escape the clutches of the demonic EU at all costs?

    The pound has started to slide, trading is getting harder and supply lines more difficult. Jobs will be lost and shortages will ensue – who does this satisfy? I can see a few blowhards down the pub claiming it was all worthwhile, but the vast majority of the public (not least the 63% of the electorate that did not back it) are going to get progressively angrier about it. The fat lady has surely yet to sing…

  12. But wasn’t Brexit always about “feelings” – more precisely about a Romantic epistemology which privileges feelings and intuitions above facts and the rules of argument which belong in Post-Enlightenment Epistemology?

  13. Minor point: “we now have a populist president in the United States using his power to pardon so as to place people above and beyond the law”. Trump’s power of pardon applies to federal crimes only. It does not expempt the individual from being prosecuted in the courts by state or local authorities. The southern district is looking to prosecute Trump for what they consider certain financial irregularities, if I may put it like that. Even were he to pardon himself, something that hasn’t happened before, he can’t avoid prosecution by non-federal authorities. In the worst case scenario for him, he could end up in prison.

    1. I gather authorities in Scotland are planning to ask Trump where the money came from to develop his business interests there.

      “Mr Capone, you appear to have a lot of outgoings …”

      “I donate a lot to charity.”

      “Very commendable, I’m sure. What we, the US Treasury Department would like to know is where the money came from in the first place. You don’t appear to have any visible means of support.”

      “Ok …”

      “You see, based on your outgoings, we calculate you owe Uncle Sam quite a lot in back taxes.”

      “This has never happened to Luciano.”

      “Oh, “Lucky”? He’s on our list, too.”

  14. I understood that in the UK sovereignty currently rests with the queen-in-parliament, i.e. it is shared by executive and legislature. Prerogative powers are those exercised by the monarch alone, e.g. the power to reject a bill. However, this power has not been used by a monarch since the early 18th century. To use the power today would drag the monarchy into party politics, probably heralding its end. The shorthand for all this is parliamentary sovereignty.

    Brexit itself has been the exercise of sovereignty by a state while a member of the EU. It is amazing that UK leaders have such a poor understanding of such a key concept.

  15. You’ve used the “Australia being signatory at the Japanese surrender in WW2” example a few times.

    As an Australian it would have astounded me if we had not been signatories in our own right . And that’s only because we made sure we were signatories in our own right at Versailles (as too NZ and Canada I believe, although Canada complicated due to not being in current configuration at Versailles).

    League of Nations signatory status appears a little more complex, in that we’re still bracketed with the Empire at that point, but Australia signed at Versailles. Signatories at Japanese surrender was also post the Statute of Westminster (1931), which is quite relevant in terms of “sovereignty” of “the colonies”.

    I’d need to dig deeper but in Australia there’s felt to be a big difference between the declaration of war in 1914 and 1939 in terms of sovereignty (made a little fuzzier due to the Oz PM being a devoted fan of the British and Empire so his phrasing makes it sound more automatic than it actually was).

    None of which of course takes away from your overall point on the framing of sovereignty, but just wanted to add the clarification lest you be seen as dimming the splendid sovereignty of those Commonwealth nations.

  16. Hang on, if l believe more and just stretch out my hand. No that didn’t work, l’ll get a ladder and l will climb a little nearer and …..No, that didn’t work either or bring me closer to Brexiteer Sovereignty.

    You provided level headed clarity with your article. Brexit Sovereignty can’t be cuddled or touched and is about “feelings”. l never felt that the UK (as a whole) wasn’t a Sovereign state as part of the EU and cannot wrap myself up in it to shield myself from Brexit reality.

    Wonder if the price of ‘Sovereignty’ will rise in relation to food prices and shortages in a No Deal situation since there appears an abundance of it being thrown around?

  17. The Queen is our sovereign, Britannia rules the waves, and we won World War 2. So trade, compromises and give-and-take are not of much interest to us. We don’t like being told what to do, we’re happy to cut off our nose to spite our face, and we’re happy to shoot ourselves in both feet, the face – anywhere – if it helps to make the point. The economy? Unemployment? Lost opportunities? Bah, humbug! England’s not for turning! The Dunkirk spirit! Splendid isolation!

    That’s how it feels.

  18. I asked two Leavers separately this morning where was the S/sovereignty in having to follow WTO rules. Each acted as if I hadn’t spoken, even when I asked again!

  19. I have followed Brexit for years from the EU side. I’ve become convinced that the entire event is best understood by contrasting sovereignty with power, and that Brexit is a pursuit of the latter in terms of the former.

    Sovereignty, like you describe, is a legal concept. It gets its meaning from within a legal system, and is theoretical. Power is the actual ability for a political entity to do as it wishes and to influence others to comply with it. Power is not theoretical, it is always manifest in the actions of people.

    Sovereignty and power are not the same. Political entities can be sovereign without having power. Small countries in the proximity of great powers know this by heart. Similarly, political entities can be powerful without sovereignty by collaborating with others.

    The UK, like many other European powers, have recently experienced a traumatic loss of power, brought about by decolonisation and the dismantling of the empire. This loss coincided with giving up sovereignty to join the EU.

    Thus, many drew the conclusion that the loss of power was an effect of the loss of sovereignty. Accordingly, the UK’s power could be regained by exiting the EU and taking that sovereignty back. The slogan ‘Take back control’ is the marketing of this idea, and Brexit is its political realisation. A quest to restore lost power.

    What the UK is discovering is that power and sovereignty are not the same. The capacity to be sovereign and to make legal treaties with others does not grant you the power to force your demands upon others.

    It’s telling that Brexiteers become angry when the EU do not agree to a trade deal. Ultimately, Brexiteers want to feel powerful. When the EU don’t comply with the UK, it becomes clear that Brexit is not giving them that power. The result is rage and demands for even more sovereignty, and a harder Brexit.

    Hence the increasing radicalisation of Brexit from the referendum and onward. Indeed, since that which brought Brexit (desire of UK power) is different from what it accomplishes (gain of UK soveregnty), Brexit will never be over, unless the desire for power is sated or otherwise diminished.

    It’s hard to tell if there will be a deal by Sunday or not. But if there isn’t, and ‘No Deal’ becomes part of the Brexit process, and it’s hard to see a deal in one or even five years. By that time, the economic fallout of not having a deal will be less severe than now, but the ultimate desire which fuels Brexit will still be unsated.

    This will not go away soon, I fear.

    1. Fallout from a nuclear explosion or any explosion does decline to nothing over time, but that is not the case for the damage caused.

      If Toyota closes its Burnaston plant in Derbyshire, 90% of the cars produced there are exported into the EU27, then the automotive jobs at the factory will go and they will never come back.

      And it is highly unlikely that the workers made redundant by Toyota would ever have jobs as good as those they have today, ever again.

  20. It is interesting to see both in the original article and in the comments that when discussing the s word that no one mentions Northern Ireland and the fact that Brexit and subsequent NI protocol have actually reduced sovereignty by leaving Northern Ireland in the single market and the Crown and Parliament without control of some aspects of economic and regulatory decision making in that constituent country of the United Kingdom.

  21. Dear David
    A query sort of related to this post: If the Conservatives vote to support a Bill (and the opposition numbers are insufficient to block the Bill) that includes clauses that break international law, does not the Queen have the 1) right 2) grounds to refuse to give the Royal Assent?

  22. Sovereignty means that one is responsible for own actions and not that one can do whatever one wants.

    Regards, o wise Mr. Green!

    andrej klemencic, ljubljana

  23. David

    Something I have been screaming from the rooftops since day one.

    The case for Brexit was substantially reliant on a single piece of contradictory logic.
    Summarised thus

    ‘only by exercising our sovereign right as an independent nation to leave the EU, could the UK become a sovereign, independent nation?’

    You shouldn’t need to be a Constitutional expert to see the obvious flaw in that argument.

    But somehow, by never directly connecting the two, the Leave campaign successfully convinced enough people they needed their vote to exercise the former in order to achieve the latter, without them realising that to achieve the latter, the former must already exist, thus demonstrating that appeal for their vote was in fact a lie

    How? Another oft repeated slogan gains traction without the majority bothering to question its veracity.

    ‘We want our Sovereignty back’

    Did I lose you? 👀😜

  24. David,

    The most thorough judicial comment on matters of sovereignty and Parliamentary supremacy vis-a-vis the EEC/EU has been Factortame no.2. I find it interesting that fisheries has yet again taken centre stage in this argument. Also, according to Tony Connelly’s reporting yesterday, one specific issue is ownership of vessels; section 14 of the Merchant Shipping Act all over again.

  25. I am no constitutional lawyer but your first point — that the ultimate source of political power is the Crown — has not been true for centuries. The most fundamental rule of UK constitutional law, as you know, is that it is Parliament (i.e. the Crown in Parliament) that is sovereign. Prerogative powers were once but are not now examples of absolute sovereignty, since they can be abrogated by Parliament.

    You write: “This form of sovereignty is quite unaffected by anything Boris Johnson and David Frost may or may not agree to with the European Union.”

    Surely this form of sovereignty was fundamentally affected by membership of the EU. What concerned Brexiteers under the European Communities Act 1972 was the direct effect of some EU rules and the obligation to pass laws to give effect to others. So long as the ECA remained the law, EU legislation had primacy over domestic legislation. It cannot be doubted that this effected a loss of sovereignty. To say that Parliament was always able to repeal the ECA is not to the point: repealing the ECA would have been a breach of the EU Treaty. If the UK was to observe its international legal obligations, it could only return to full Parliamentary sovereignty by leaving the EU.

    Your second point — about sovereignty being about legal capacity and “being able to accept obligations is the very point of sovereignty” — is inaccurate as well. A non-sovereign body can accept obligations. Some non-sovereign states, e.g. Texas, have power to enter into treaties, but subject to limitations (in the case of Texas, limitations generated by the US Constitution). It is not even correct to say that the distinguishing feature of a sovereign body is that it is unconstrained as to the obligations which it can enter into: a sovereign state cannot validly make an illegal treaty. In any event, the whole point about an enforceable obligation is that it constrains future conduct. A sovereign body, no less than any other person undertaking an obligation, has full power to breach the obligation but no power to extinguish it. To say that “Sovereignty exists anyway” is to make a jejune technical point.

    Contrary to your suggestion, no Brexiteer would claim that the UK “cannot and should not enter into and be bound by any international agreements”. And when Brexiteers complain that membership of the EU has created a “feeling” that Parliament has not remained sovereign, even though it technically has, they are understating the true position, namely that the effect of the ECA was to constrain the legislative capacity of Parliament in very fundamental ways.

    In Factortame (No 2) Lord Bridge referred to Parliament voluntarily accepting a limitation on its sovereignty. That is law, as well as “feelings”.

    The Brexiteers’ claim is that in limiting its sovereignty Parliament has paid too high a price in order to obtain the benefits of EU membership. I disagree with them profoundly. But it does not serve my cause or yours to misrepresent their position.

    1. I have published this comment, but I do wish it had not ended with an allegation of misrepresentation. I am happy to be told I am incorrect but I do not knowingly mislead.

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