Some argue that sovereignty is an increasingly meaningless concept in a globalised world. On the contrary, says Alan Sked – legal authority is vested in the UK parliament, unless it chooses to delegate parts of it to the EU. That sovereignty means that were Britain to vote to leave, the will of the people would necessarily prevail.
Zimbabwe is a bankrupt dictatorship with no global influence. It is dependent on foreign aid, and all sorts of factors from climate change to international sanctions affect its ability to act. Nonetheless, exactly how it responds to these outside pressures is up to President Robert Mugabe. No one else can act on behalf of Zimbabwe without his authority. It is final. Likewise, if anybody inside Zimbabwe breaks the law—however authoritarian that law may be—they will suffer the consequences, since the final legal authority in Zimbabwe is the judiciary there, which applies the laws that Zimbabwe’s parliament pass under the leadership of Mugabe. In short, however bankrupt and internationally powerless Zimbabwe may be, the final authority on how it acts, both domestically and internally, is exercised by its president. It is therefore a sovereign state whose sovereignty he embodies. L’état c’est lui. He exercises final authority on behalf of the state. Final authority is what is meant by sovereignty.
The United States is a powerful democracy. But it too is affected by external pressures. It cannot dictate to the world. It can lose wars. It can be affected by terrorism. It can suffer from climate change. In foreign policy it needs allies to protect its security and pursue its aims and objectives. Yet it alone decides how it will respond to foreign policy emergencies, which allies it will choose, which compromises it will make and which concessions may be necessary. In most cases, these decisions will be taken by the US President. The buck stops with him and he exercises final authority on behalf of the United States. Being a democracy, however, he will have to carry out the laws agreed on with him by the US Congress and deemed constitutional by the US Supreme Court. If anyone breaks these laws they will be punished by federal or state courts in accordance with the US Constitution. But US law is supreme. Nobody can override it. The final legal authority—sovereignty – in the US is vested in the courts and in the president by the constitution. The USA is, therefore, a sovereign state.
One could go on. The point is that the world is full of sovereign states all of which have different domestic political arrangements, ranging from the dictatorial to the democratic, from the federal to the centralised. These can be simple or straightforward, purely federal or purely centralised, or mixed as is now the case with the United Kingdom. It makes no difference. Nor does the electoral system of a state: Britain, the USA, France, Germany, Italy and Ireland all have different electoral systems. Indeed, Britain today incorporates a variety of electoral systems. But this has nothing to do with sovereignty. That remains with the ‘Queen in Parliament’. Parliament still makes our laws and has the final say in determining our future. Clause 2 of the Scotland Bill of 2015 may wish to entrench a Scottish parliament permanently in our constitution, but this is hogwash. No parliament can bind its successors. The Scotland Bill, just like the European Communities Act of 1972, can be repealed. Final legal authority—sovereignty—remains with the UK parliament.
Parliament can, however, choose, to delegate sovereignty (it cannot be ‘shared’, ‘pooled’ or ‘spread’ like butter—whatever the desires of European federalists or liberal constitutionalists), which it has done to the EU in certain areas. However, delegated sovereignty can always be reclaimed—which is the aim of Brexit. If the electorate recommends this choice to Parliament in the forthcoming referendum, there is no higher legal authority which can overturn this decision. Sovereignty remains with the UK. The EU and its supporters can wail all they like, can invent all sorts of nonsense about sovereignty, but the sovereign will of the British people exercised through its parliamentary government will prevail nonetheless. Its authority is final.
After Brexit, of course, an independent United Kingdom – just like an independent USA or an independent Zimbabwe – will have to tackle international problems. But, as already indicated, international affairs do not undermine sovereignty. Sovereign states merely decide individually how to react to them in their own best interests. They alone have the final legal authority to do so. So sovereignty is no illusion, but the bedrock of international order. The question is whether we vote to keep sovereignty in the UK or transfer it to the EU. I trust we shall vote to retain it.
This post represents the views of the author and not those of BrexitVote, nor the LSE.
Alan Sked is Professor Emeritus of International History at the LSE.
The very apparatus of the EU is designed to wear away any sovereignty that a member-state may have. The longer a nation participates as a full member of the EU, the less sovereignty it has, as the nexus of EU Directives and Regulations work their effect via binding CJEU case law to become cemented into local statute or case law. There is some question of the extent to which future Parliaments have already been bound by the enactment of the sensibilities of foreign cultures into UK law via the machinery of the EU.
It would be true that Parliament could re-assert its sovereignty by giving notice of intent to exit the EU, but it would then have to continue to work its way through numerous statutes, repealing that which is not undesirable from the perspective of the British people and enacting that which would be desirable. There is no question that it would be a tough row to hoe from this point, and it would certainly not get easier for the UK to be the UK (or England to be England) as time continues to go by in the EU.
Sovereignty – The ability to rule ourselves and make our own laws.
The Lord Kilmuir letter below was sent to Edward Heath advising him that joining the European Economic Community, it would be contrary to English Constitutional Law. It would be a total abrogation of his duty to govern us according to our laws and customs.
Heath went ahead anyway and in 1972 gave away Britain’s sovereignty in the most grievous act of treason in British history. Diligently pursuing his treachery, every following parliament has been an unlawful assembly unqualified to legally govern. This means that every Act and EU Treaty since 1972 is null and void as treason has no authority in law.
The comments in red interleaved in Lord Kilmuir’s letter, clearly show that the Heath Government was fully prepared to commit acts of Sedition and Treason in order to take the UK into the EEC. Unfortunately we do not have a copy of Heath’s original letter to Lord Kilmuir.
My Dear Ted,
You wrote to me on the 30th November about the constitutional implications of our becoming a party to the Treaty of Rome. I have now had an opportunity of considering what you say in your letter and have studied the memoranda you sent me. I agree with you that there are important constitutional issues involved.
I have no doubt that if we do sign the Treaty, we shall suffer some loss of sovereignty, but before attempting to define or evaluate the loss I wish to make one general observation. At the end of the day, the issue whether or not to join the European Economic Community must be decided on broad political grounds and if it appears from what follows in this letter that I find the constitutional objections serious, that does not mean that I consider them conclusive. I do, however, think it important that we should appreciate clearly from the outset exactly what, from the constitutional point of view, is involved if we sign the treaty, and it is with that consideration in mind that I have addressed myself to the questions you have raised.
He is clear that if we do sign the agreement with the EEC we will suffer some loss of Sovereignty. This is clearly an act of Treason because our Constitution allows no such surrender of any part of our Constitution to a foreign power beyond the control of the Queen in parliament. This is evidenced by the convention which says:-
(Parliament may do many things but what it may not do is surrender any of its rights to govern unless we have been defeated in war). And the ruling given to King Edward 3rd in 1366 in which he was told that King John’s action in surrendering England to the Pope and ruling England as a Vassal King to Rome was illegal because England did not belong to John, he held it only in trust for those who followed him. The money that the Pope was demanding as tribute was not to be paid because England’s Kings were NOT vassal Kings to the Pope nor was the money legitimately owed.
Adherence to the Treaty of Rome would, in my opinion, affect our sovereignty in three ways:-
a) Parliament would be required to surrender some of its functions to the organs of the community;
b) The Crown would be called upon to transfer part of its treaty-making power to those organs of the Community;
The English Constitution confers treaty making powers on only the Sovereign. The Sovereign cannot transfer those powers to a foreign power nor even, to our own parliament because they are mere servants of the Monarch. Sovereignty itself cannot be given away as it resides with the people who entrust it to the Monarch for his/her lifetime and the Monarch is obliged by law to pass that sovereignty on to any successor as it was received.
c) Our courts of law would sacrifice some degree of independence by becoming subordinate in certain respects to the European Court of Justice.
It is a Praemunire to allow any case to be taken to a foreign court not under the control of the Sovereign. The European Court of Justice or the European Court of Human Rights are foreign courts not under the control of our Sovereign. Praemunire is a crime akin to Treason.
The position of Parliament:
It is clear that the memorandum prepared by your Legal Advisers that the Council could eventually (after the system of qualified majority voting had come into force) make regulations which would be binding on us even against our wishes, and which would in fact become for us part of the law of the land.
There are two ways in which this requirement of the Treaty could in practice be implemented:-
It is a Praemunire to allow any laws or regulations not made by the Sovereign in parliament to take effect as law in England. This is illegal under the 1351 Treason Act, the 1351 Act of Praemunire (which was introduced by King Edward III because he believed it was an affront to his honour and dignity as King of England to have laws imposed upon his Kingdom by a foreign power, to have any of his subjects to be taken out of England to be tried in a foreign court or for his Bishops to excomminicate any of his subjects on the orders of the Pope), the Act of Praemunire 1392, the Act of Supremacy 1559, the Declaration and Bill of Rights 1688/9 and the Treason Felony Act 1848.
Parliament could legislate ad hoc on each occasion that the Council made regulations requiring action by us. The difficulty would be that, since Parliament can bind neither itself nor its successors, we could only comply with our obligations under the Treaty if parliament abandoned its right of passing independent judgement on the legislative proposals put before it.
A parallel [to the position of Britain and the EU] would be, for instance, the constitutional convention whereby Parliament passed British North American Bills without question at the request of the Parliament of Canada. In this respect Parliament here would have in substance, if not in form, abdicated its sovereign position and it would have pro tanto, to do the same for the Community.
No such power exists for parliament to do this. This would be an act of treason under the 1351 Treason Act, a Praemunire under the 1351and 1392 Acts of Praemunire, an act of treason under the 1559 Act of Supremacy, the 1688/9 Declaration and Bill of Rights and the Treason Felony Act 1848.
It would in theory, be possible for Parliament to enact at the outset legislation which would give automatic force of law to any existing or future regulations made by the appropriate organs of the Community. For Parliament to do this would go far beyond the most extensive delegation of powers even in wartime that we have ever experienced and I do not think there is any likelihood of this being acceptable to the House of Commons. Whichever course were adopted, Parliament would retain in theory the liberty to repeal the relevant Act or Acts, but I would agree with you that we must act on the assumption that entry into the Community would be irrevocable. We should therefore have to accept a position where Parliament had no more power to repeal its own enactments than it has in practice to abrogate the statute of Westminster. In short, Parliament would have to transfer to the Council, or other appropriate organ of the Community, its substantive powers of legislating over the whole of a very important field.
There is no constitutionally acceptable method of doing this because it would be tantamount to a total abrogation of their duty to govern us according to our laws and customs. And it would be an act of treason under the 1351 Treason Act, a Praemunire under the 1351 and 1392 Acts of Praemunire and treason under the 1559 Act of Supremacy, the 1688/9 Declaration and Bill of Rights and the Treason Felony Act 1848.
Regarding Treaty-making powers:
The proposition that every treaty entered into by the United Kingdom does to some extent fetter our freedom of action is plainly true. Some treaties such as GATT and OEEC restrict severely our liberty to make agreements with third parties and I should not regard it as detrimental to our sovereignty that, by signing the Treaty of Rome, we undertook not to make tariff or trade agreements without the Council’s approval. But to transfer to the Council or the Commission the power to make such treaties on our behalf and even against our will, is an entirely different proposition.
There seems to me to be a clear distinction between the exercise of the sovereignty involved in the conscious acceptance by us of obligations under treaty-making powers and the total or partial surrender of sovereignty involved in our cession of these powers to some other body. To confer a sovereign state’s treaty-making powers on an international organisation is the first step on the road which leads by way of confederation to the fully federal state. I do not suggest that what is involved would necessarily carry us very far in this direction, but it would be a most significant step and one for which there is no precedent in our case. Moreover, a further surrender of sovereignty of parliamentary supremacy would necessarily be involved: as you know, treaty-making power is vested in the Crown.
Parliamentary sanction is required for any treaty which involves a change in the law or the imposition of taxation, to take two examples, and we cannot ratify such a treaty unless Parliament consents. But if binding treaties are to be entered into on our behalf, Parliament must surrender this function and either resign itself to becoming a rubber stamp or give the Community, in effect, the power to amend our domestic laws.
This is a surrender of our Sovereignty, a clear act of treason under the 1351 Treason Act and a Praemunire under the 1351 and 1392 Acts of Praemunire, it is treason under the 1559 Act of Supremacy, the 1688/9 Declaration and Bill of Rights and the Treason Felony Act 1848.
Independence of the Courts
There is no precedent for our final appellate tribunal being required to refer questions of law (even in a limited field) to another court and as I assume to be the implication of ‘refer’ — to accept that court’s decision. You will remember that when a similar proposal was considered in connection with the Council of Europe we felt strong objection to it. I have no doubt that the whole of the legal profession in this country would share my dislike for such a proposal which must inevitably detract from the independence and authority of our courts.
Of those three objections, the first two are by far the more important. I must emphasise that in my view the surrenders of sovereignty involved are serious ones and I think that as a matter of practical politics, it will not be easy to persuade Parliament or the public to accept them. I am sure that it would be a great mistake to under-estimate the force of objections to them. But these objections ought to be brought out into the open now because, if we attempt to gloss over them at this state, those who are opposed to the whole idea of our joining the Community will certainly seize on them with more damaging effect later on.
Having said this, I would emphasise once again that, although those constitutional considerations must be given their full weight when we come to balance the arguments on either side, I do not for one moment wish to convey the impression that they must necessarily tip the scale. In the long run we shall have to decide whether economic factors require us to make some sacrifices of sovereignty: my concern is to ensure that we should see exactly what it is that we are being called on to sacrifice, and how serious our loss would be.
It is a Praemunire to subject Her Majesty’s Courts of Law to the domination of a foreign court outside of Her Majesty’s control.
I read on a previous site that ‘he [Heath] knew best’. The arguments as to what ‘was best’ for the UK economic arguments; security arguments; our influence in the world arguments; ‘isolationist’ arguments, ‘all governments do it to their people’ arguments; the ‘people are too stupid to have a say’ arguments, etc., are all of them totally irrelevant. It’s about, in a democracy, people being respected as adults who place other adults in a position of power, and, in that, the expectation that those with that power will be open; transparent and honest – acting without subterfuge and contempt for their citizens – even if those citizens are considered ‘wrong’. Shame, shame shame on the arrogant governments of the UK that have gone along with this, one after the other irrespective of their general politics.
I have only just heard about this, the letter sent to Heath and the FCO 30/1048 signing. OMG I am appalled and wonder why I hadn’t heard of it at all before now. When I Googled it a petition came up so I went to sign it just to find out that it was over, finished and had ran during 2015 or thereabouts and had not received enough signatures to debate in Parliament. Well I wonder why, ha, ’cause many, many people just like me hadn’t heard of it before so it needs putting out there again in the public domain and because it’s so related to Brexit now a new petition, I’m sure, will reach it’s full signatory in no time. It needs advertising loud and clear everywhere.