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.
4/4 The UK's sovereignty, over our laws, our courts, or our fishing waters, is of course not up for discussion and we will not accept anything which compromises it – just as we aren't looking for anything which threatens the integrity of the EU’s single market.— David Frost (@DavidGHFrost) August 13, 2020
We've just finished two weeks of intensive talks with the EU.— David Frost (@DavidGHFrost) November 4, 2020
Progress made, but I agree with @MichelBarnier that wide divergences remain on some core issues. We continue to work to find solutions that fully respect UK sovereignty.
3/4 But for a deal to be possible it must fully respect UK sovereignty.— David Frost (@DavidGHFrost) November 27, 2020
That is not just a word – it has practical consequences. That includes: controlling our borders; deciding ourselves on a robust and principled subsidy control system; and controlling our fishing waters.
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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