9th March 2023
In law and policy commentary – especially since 2016 – we go from the general to the particular, and from the particular to the general.
We swing constantly between the grandest constitutional concepts – the separation of powers, the rule of law, sovereignty – to the exact wording of particular clauses and other texts.
It really should not be this exciting, but it is.
Today we will look at sovereignty again.
And some of you will complain about who I am about to quote, but it is an example of a frame of mind which still has not gone away.
And so it begins.. the UN Refugee Agency condemns any attempt to control our own borders.
Time to #CompleteBrexit and truly become a sovereign state. pic.twitter.com/vZkdJKQWL4
— Nigel Farage (@Nigel_Farage) March 8, 2023
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Sovereignty is generally about the ability of states to decide things as they wish and to do things (or attempt to do things) as they want.
More exactly, it is about the autonomy, capacity and legal personality of states.
One general feature of sovereignty is therefore about the ability of states to enter into agreements with other states, or not.
Just as it is a general feature of adulthood to enter into various legal relationships, or not.
(And please note, the uses of “general[ly]” means, yes, there are exceptions, so no need to scroll down to list them in a comment.)
It is thereby an exercise of sovereignty to enter into treaties and to become a member of various international organisations.
That is what sovereign states do.
And they do it, in part, because they can.
As such, to say that a state being party to an international agreement is a negation of sovereignty is to fundamentally misunderstand what sovereignty means.
The very fact that the United Kingdom is a party to the United Nations shows that it is a sovereign state.
Indeed, one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations.
And membership of an organisation will generally confer rights and impose obligations.
If a state does not want to have those rights and obligations then it can leave, either by an agreed exit process (such as the once-famous Article 50 of the Treaty on European Union) or by treaty or even by denunciation.
One of the most telling passages in the story of Brexit was in a government white paper before departure:
“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.”
Membership of the European Union has “not always felt like” we had sovereignty.
This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.
But we had sovereignty all along.
We could have left the European Economic Community and then European Union at any point – though before the treaty of Lisbon (which introduced Article 50), it would have had to have been by treaty (as happened when Greenland left) or by denunciation.
And we could have, at any time, repealed the European Communities Act 1972 without asking any one’s permission.
What Farage and others mean by “sovereignty” is isolationism.
Their ideal is for the United Kingdom not to be bound by any unwanted international obligations, or indeed by any international obligations at all.
But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.
For that is the nature of international agreements.
Yes, we can – ultimately – always walk away.
And we should be careful which obligations we accept when we enter such agreements.
But such obligations are the essence of the dealings of a sovereign state.
And that sovereignty is always there, even when it does not feel like it.
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And if you want to control your borders, it is almost impossible to do that without some agreement with the bordering sovereign countries..
This is a very boring comment, as it is just a statement of agreement with your definition of sovereignty. Funnily enough, I am heavily involved in a campaign to achieve recognition and UN membership for a currently unrecognised state. The people concerned would love to have the obligations related to being a sovereign member of the international community. I wish there were a way to highlight the difference between sovereignty and isolationism and make it better known. It seems absolutely fundamental to me.
You might want to know that the embedded tweet from Farage does not show up in the version on Substack, either email or online.
Thank you – I have fixed this immediately for the online version. Many will see its absence for the email as a blessing.
The mistake is, I think, to see sovereignty as a precious resource, to be hoarded because it is in limited supply: fixed behind glass and admired like some priceless jewel. Like North Korea, we have cut ourselves off from our neighbours, walling ourselves away to become masters of our own destiny. A sort of Anglo “juche” – independent, autonomous, self-sufficient, self-reliant.
What nonsense.
The UK is a trading nation. We live in a community of other nations. Ireland is next door. You can see France from Kent, and take a train from London to Paris or Brussels. It is not enough just to control ourselves within our own borders, and forget about everything else. We need to buy energy, and fruit and vegetables, and a million and one other things, and sell our goods and services to others, and by and large that means persuading the people nearby to sell to us and buy from us.
Like a muscle that gains strength when it is exercised, we used part of our sovereignty to join the EU and gain some measure of input and control over the terms of business in our main European markets, leveraging our position as a larger nation in the EU to push the policy of the whole EU – what, ten times larger – more in the direction that suited us and away from the directions we did not like. And we gave that up. What fools.
With apologies to John Donne, no European country is an island entire of itself; each is a piece of the continent, a part of the main.
One comment on your words “one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations”.
The Montevideo Convention (1933) codified the theory of statehood. Article 1 of Montevideo sets out four criteria:
“The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”
On those criteria, there are several countries that clearly are states with sovereignty but are not members of the United Nations. Taiwan is the obvious example, but there is also Palestine, the Holy See, Kosovo and many others.
I said in the post that there were exceptions to the propositions I was making, so as to avoid comments like this pointing out the exceptions. Oh well.
It is interesting, though, to note criterion (d) codified in this Convention, which is very much in tune with your original post.
Sovereignty is valuable to a state as a resource, not merely as an abstract attribute or value, to be scored from one to ten. Indeed, miserly hoarding of this value in the abstract means forgoing its value as a currency, as negotiating coin.
As seems to be a firm rule as regards almost all aspects of Brexit, we are mired deep in the irony that those who make by far the most noise about Brexit are truly the empty vessels who appear to understand little or nothing about what it means or is for.
It is a tradition in my family to join a trade 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 the usage right in this context, to join a collective body and benefit from the vastly greater leverage that the combination has when negotiating pay, terms and conditions, on behalf of its members, than those members would have if they individually sought to do so just for themselves.
I did have issues with aspects of the way my Civil Service union was run; the undue influence of the SWP within it and how the General Secretary conducted himself on occasion, but, if that had all become too much I could have left the union (and still benefited from the general improvements in pay, terms and conditions it negotiated on behalf of its members, but not the personal representation, services and fringe benefits).
As an aside, it has always struck me as odd that someone, as steeped in the trade union movement as Mick Lynch, does not appreciate how much the European Union is, well, like a union.
He might have noticed by now that when we were in the EU we seem to have benefited from the services of a better qualified team of trade negotiators than we have been able to employ since we left.
The National Union of Rail, Maritime and Transport Workers is, incidentally, a relatively recent combination.
And Unite, the former property of Len “Lexit” McCluskey was partly born out of the Transport and General Worker’s Union, the motto of which was, “Unity is Strength”.
Thanks. Very succinct. Just reflecting that a Farage – style isolationism in terms of human psychology would usually be considered not only pathological but self-harming. Oh, well.
While I entirely agree with your analysis David, I would like to make a further point.
The UK is indeed a sovereign state and has been such throughout its EU membership.
However, it seems to me that the people of the UK are a good deal less sovereign than most other peoples of Europe. The UK people have very poor democratic control over their officers of state and mistook (or rather were induced to mistake) the EU as the cause of their poor control when in fact the problem lay much closer to home.
It is not the UK people who have taken back control. If anything they have lost more of it. Due to the strong democracies of other member states, EU decisions are largely driven by the interests of the peoples of the EU. Now the UK is adrift, there is far less protection against vested interests pulling the levers of power.
“But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.”
Totally agree and with most of what you’ve written today…BUT….
Sovereignty is and of itself quite an abstract concept. For it to be effective, sovereignty also needs ‘power ‘ and this was always a problem whilst we were in the EEC and EU.
Whilst in the EU we effectively ceded sovereignty to another organisation ‘the EU’ which had benefits and costs – different people/tribes attributed different benefits & costs to things like trade, shared competencies and a myriad of other human endeavours including business standards, manufacturing, health and safety and agriculture and workers rights.
It’s not surprising therefore that, over time, people began to query whether the ceding of sovereignty was worth the accrued costs and benefits and especially whether the power associated with ceding was worth the benefits and costs.
Herein lies the challenge of Brexit – we’ve taken back our sovereignty – we’ve clearly lost some trading benefits & we’ve reduced some national yearly costs by c. £12bn-£15bn by no longer paying into the club.
But what have we done with the power we’ve regained? I’d argue, not a lot as yet – this particular government has proved inept at using its regained powers – a bit like someone losing muscle strength when you’re in bed for a long time.
Outsourcing our sovereignty to a foreign power was always going to be a difficult challenge to get to get right – aligning the costs and benefits with 27 or 28 other countries was/is a herculean task.
Having regained a significant amount of sovereignty and commitment ‘power ‘ I think it’s extremely doubtful that we will, knowingly outsource that power to another external /foreign institution in a hurry.
The key thing going forward is to use our recently reacquired powers wisely in these very unsettling & choppy times.
But, as this blog host tells us, you had sovereignty all along.
Sovereignty- an abstract concept, you say, which somehow becomes less abstract, (in your words, effective) through…”power” ?
And the English need this “power” more than the French? The Poles?
And, indeed, how do you feel about the “outsourcing” of your sovereignty to NATO, to the UN?
As far as I can make out, English exceptionalism regained a signifcant amount of an abstract concept by exiting the EU. A significant amount of nada.
But I get it: going it alone may feel more powerful to you than cooperating with your neighbours. But I still live next door to you, on the other side of an increasingly foggy channel, and it makes me sad to see my neighbour getting lost in this power-trip.
‘Whilst in the EU we effectively ceded sovereignty to another organisation…Outsourcing our sovereignty to a foreign power’
One of the main points of this article is that the UK remained a sovereign state whilst a member of the EU. Its sovereignty was never ‘outsourced’.
The UK was a fully participating member of the EU. IIRC, it had more MEP’s per capita than any other EU member. It had the right to veto legislation with which it disagreed. It opted out of the Euro, Schengen and various other arrangements it didn’t like. Many are of the understandable view that the UK had a disproportionately high level of influence within the EU.
The description of the EU as a ‘foreign power’ pre Brexit reminds me of Farage complaining about the EU Fisheries policy whilst being a member of the Fisheries committee but attending none of its meetings and failing to contribute to its decisions. Whilst claiming expenses, naturally.
Ceding sovereignty for example with the Common Agricultural Policy and Common Fisheries Policy all had costs and benefits Inc loss off sovereign power.
This isn’t of itself contentious except a few in Scottish fisheries will argue it killed half the Scottish fishing fleet in the mid 70’s.
Further, when Maastricht came about and the introduction of the euro/EMS in 1993 this created the Eurozone.
The Eurozone, changed the fundamental dynamics of the EU including the introduction of Qualified Majority Voting in 2014 to speed up integration and decision making. Few realised that with now c.80% of European Council decision making made by QMV the Eurozone members effectively had most of the power in the EU. The UK was, not unsurprisingly one of the biggest loser’s under QMV. So sure, we had our ‘pooled sovereignty ‘ but our real power ( and influence ) was declining including the creation of the Lisbon Treaty with a further 40 odd powers or competencies ceded to Brussels.
The UK tried as late as Feb 2016 to try & retain more power ( influence) over the Eurozone but this was not to be with David Cameron waving a dodgy “peace in our time ” at the No. 10 news conference.
The rest is history.
From the post:
‘One of the most telling passages in the story of Brexit was in a government white paper before departure:
“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.”
Membership of the European Union has “not always felt like” we had sovereignty.
This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.
But we had sovereignty all along.’
High time we saw a list of the uses to which you want to use the power regained through Brexit, so that we can weigh them against the losses we have sustained through losing the additional power we had as a member state.
Article 5 of the North Atlantic Treaty is the greatest concession of sovereignty the UK has ever made. Yet I have not heard Farage, or anyone else for that matter, suggest that we should leave NATO.
Anyone yet mention that NATO membership is threat to our sovereignty?
Funnily enough, Ukraine seems to be experiencing the exact opposite at the moment.
I think that what Farage and others mean by “sovereignty” is exceptionalism which, because there’s nothing especially exceptional about the UK (in a good way), leads to isolationism via the betrayal myth.
All this has always been about feeling, not thinking and is a natural adjunct of nationalism and populism. Easy answers often make for poor decisions and a media often reliant on soundbites and and short attention spans aids and abets these issues.
What is sovereignty?
A word …
“Well, ’tis no matter; sovereignty pricks me on. Yea, but how if sovereignty prick me off when I come on? How then? Can sovereignty set-to a leg? No. Or an arm? No. Or take away the grief of a wound? No. Sovereignty hath no skill in surgery, then? No. What is sovereignty? A word. What is in that word “sovereignty”? What is that “sovereignty”? Air. A trim reckoning! Sovereignty is a mere scutcheon. And so ends my catechism.”
With due apologies to the chap who lived a few miles down the road from me and Sir John Falstaff.
To summarise, “Fine words butter no parsnips.”
Once again, a masterly blog, of great clarity. Thank you for referring to the pre-brexit white paper where the government itself stated that the UK was indeed sovereign as a member of the EU. As someone who regularly sought to explain these issues in public blogs, comments, articles, I welcome you reminding everyone of this, and pointing out that Farage was not talking about sovereignty, but isolationism.
Succinctly expressed. The fallacy of the ‘sovereignty’ and the failure of the UK press to shatter it is a grotesque failure of the fourth estate.
Excellent post, thank you! It strikes me, and others have touched on this in the comments, that there is as much psychology as law involved in the question of sovereignty. What did, or does, “sovereignty” mean to those who voted for or against Brexit? Many different things I suspect.
In that sense there is no absolute right or wrong in terms of what we use our sovereignty to do. Spend it, lend it or hoard it. My own test, if you like, is whether the use we decide upon confers a net benefit on the country as a whole. Does it make, or set the conditions to make, the population better off or otherwise improve well-being?
In my view the net effect is – so far at least – that we are for the most part diminished as a country and poorer as a people.
Poor Nigel, the original hollow man. Seems to me the Brexit project had two possible outcomes – a Miss Marple version of Britain – a gerontocracy run by private incomes and well pensioned old buffers. Or some kind of Singapore-on-Thames with Electric Car Factories 12 to 21 situated just outside Virginia Waters and served by massive public housing blocks and worker training schools and creches. We got something like the Miss Marple version but without the pension fund.
Sovereignty came into this as some sort of magic spell. If only we had sovereignty then Adam Smith’s Invisible Hand would somehow sprinkle oofle dust across the land and all would be well. No effort, no upsets, no trade disputes with the EU. Total fantasy of course. respectable economists could see we were headed for trouble well before Brexit.
The Invisible Hand either does not exist or has chosen to work elsewhere – incentives etc. Smith’s Pin Factory has been offshored, the old site sold to a conglomerate in Grand Cayman and leased back on usurious terms. Brexit and Sovereignty were sideshow diversions that achieved nothing. We are back where we started and a good bit poorer. Thanks Nigel.
Membership of the European Union has “not always felt like” we had sovereignty.
As usual it’s feels over reals for right-wing snowflakes.
Yes, thank you – this explains it beautifully.
Though sadly I have the feeling that such clear explanations, while valuable, amount to little more than whistling in the wind.
Stating truths is the easy part. Persuading others to also believe and act upon them is the hard part.
Constitutions are complicated, and a concept such as constitutional sovereignty is not easily grasped by millions of ordinary, non-lawyer voters.
Especially when certain politicians (ahem, quote above), energetically echoed by certain powerful newspapers, are perfectly happy to fan misunderstanding for their own purposes.
I sometimes wonder, despairingly: does careful, accurate analysis by a tiny elite of lawyers, speaking essentially to itself, serve much purpose if millions of voters will never read it, and their views will certainly remain unchanged by it? They are the wind, and we are the whistlers.
Politicians must of course respond to voters – even misled ones, who have been induced to believe (quite incorrectly) that their sovereignty is under attack.
And – if there are enough people who believe this – the unscrupulous politician need not bother with the constitutional facts any more, at least at the moment of an election.
It is what is in people’s heads and hearts – as they stand in the ballot box with pencil poised – that really matters, right or wrong.
It is the power – and the bane – of democracy.
“I sometimes wonder, despairingly: does careful, accurate analysis by a tiny elite of lawyers, speaking essentially to itself, serve much purpose if millions of voters will never read it, and their views will certainly remain unchanged by it?”
I often ask myself a similar question, and my answer is that some things should be done as public goods, regardless of their effect or utility.
Isn’t the problem that almost nobody – the EU itself possibly included when it talks of “pooling” sovereignty – understands that sovereignty is a negative concept, the absence of something, namely a higher authority than whoever/whatever is sovereign? It can thus be used to create voluntarily, by treaty, an entity that like the EU is given the power to override or act to the exclusion of its Member States, and to that limited extent, for it is infinitely divisible, sovereignty is indeed lost. Decision-making power can be pooled, but sovereignty cannot.
You make a very valid point.
“Decision-making power can be pooled, but sovereignty cannot.”
My similar point is that sovereignty isn’t of itself useful – it’s more important to use the power and, to a certain extent, the influence that having ‘sovereignty’ gives you ( the nation state).
It’s why I used the term outsourcing of sovereignty in an earlier post.
One can of course ‘in source ‘ sovereignty which is what we’ve effectively done with Brexit, albeit badly.
We’ve now to re- learn the power and influence that is returned to the People – this is proving a much harder task than originally envisaged.
“Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”
Edmund Burke, Speech to the Electors of Bristol on 3rd November 1774 during the General Election of that year.
Burke became one of the two Members of Parliament for Bristol on 4th November 1774 and lost the seat in the following General Election on 6th September 1780.
As Richard Gregory Tuck observed on losing in the Democratic primary for the California State Senate of 1966, “The people have spoke (sic), the b*****ds.”
Tuck was a US political consultant, campaign strategist, advance man, and political prankster.
His last laugh is his encapsulation of the consequences of the universal franchise from the perspective of a loser.