Sovereignty cuts both ways, writes Richard Rose. Characteristic of British policy since the Brexit process began, Downing Street has forgotten that the EU and its member states are sovereign powers too. Its actions risk undermning trust in any future EU-British relationship.
Downing Street has shown its belief in the power of parliamentary sovereignty by citing it to justify reneging on the Northern Ireland Protocol in the Withdrawal Agreement that it signed with the EU last autumn and that was endorsed by Parliament. It did so by invoking the traditional principle of the unwritten constitution: no Act of Parliament can bind a subsequent Act.
The reasons for not wanting to enforce the Agreement’s conditions for regulating the movement of goods between Great Britain and Northern Ireland are both practical and principled. The procedures will impose costly burdens on firms engaged in trade and they will be an infringement on the unity of the United Kingdom. Boris Johnson was nonetheless prepared to accept these measures as the price of getting an Agreement on Brexit accepted by the EU. When Johnson won a majority last December in a new Parliament purged of pro-EU Conservative MPs, it promptly endorsed the Agreement and it became an International Treaty with the EU.
The principle of the rule of law means that both parties signing a Treaty are meant to act within its rules, even if doing so may impose costs and inconvenience. The clauses in the Agreement and its 585-page annexe ended the ‘cake’ strategy that Johnson had been pursuing, that is, keeping all the benefits of EU trade while gaining freedom from the obligation to respect the EU’s trade laws. Michel Barnier, the chief negotiator for the European Commission, hailed the Treaty with the statement: ‘The Withdrawal Agreement creates legal certainty where Brexit created uncertainty’.
The government bill on trade within the UK introduced on Wednesday demonstrated absolute British sovereignty: it contained clauses overriding Treaty provisions regulating trade between Northern Ireland and Great Britain. They had served their purpose and trying to enforce them would reveal how impractical and costly they were and inflame Tory and Northern Ireland MPs who have favoured no deal.
The government’s chief legal advisor, Sir Jonathan Jones, took a different view and resigned. Parliamentary sovereignty must be exercised within the rule of law and could not be invoked in disregard of a Treaty that Parliament had approved. The only way that its fresh approach to Northern Ireland could be legally justified would be by getting the consent of the EU to a change or by having a new Act of Parliament repeal the agreement it had approved in January.
The relevant Conservative government ministers responsible for law enforcement, Robert Buckland at Justice and Attorney General Suella Braverman, put their commitment to Downing Street ahead of their ministerial responsibilities. The Northern Ireland Secretary Brandon Lewis instantly secured entry to the Oxford Dictionary of Quotations by telling the House of Commons that the new government bill would only breach international law ‘in a very specific and limited way’.
Downing Street briefings are dismissing Barnier’s views as typical of Brussels’ concern with the law rather than with politics. It claims that this shocking show of British sovereignty will be accepted by the EU as a price that must be paid to maintain the EU’s positive flow of exports to the UK. With the confidence borne of governing without the constraints of a written constitution, Boris Johnson and his colleagues are counting on Angela Merkel and Emmanuel Macron to tell the Commission to set aside their concern with measures that only affect 1.5 million people and accommodate Britain’s doctrine of parliamentary sovereignty. Downing Street has ignored that the Irish government has a veto on any change in the agreement and that Micheal Martin, the Irish Taoiseach, has denounced the very specific way in which proposed changes would destabilize the economic relations and much else between Northern and Southern Ireland.
Characteristic of British policy since the Brexit process began, Downing Street has forgotten that the EU and its member states are sovereign powers too. Each is a Rechtsstaat, that is, a rule-of-law state. Given (their) recent national history, German Chancellors are particularly respectful of basic laws. The President of France enjoys wide powers because they are conferred by the French Constitution, not because of his personality or public opinion poll rating. Pragmatically, no French official would trust an agreement on dealing with the flow of goods and refugees between Calais and Dover if it could be altered at will to suit the convenience of Downing Street.
The EU has demonstrated its sovereignty by giving the British government a three-week deadline to withdraw the measure it has put to the House of Commons this week. Technically, this is not an infringement of the sovereignty of the British Parliament, for a draft bill is no more than a statement of what the government would like to become law. The Supreme Court demonstrated last September that it is prepared to over-rule Boris Johnson’s wish to ignore an Act of Parliament. In less than 24 hours after the draft bill was published, the European Commission had prepared a draft statement expressing its extremely serious concern about the UK’s proposed violation of their joint Agreement.
After meeting Michael Gove, the Cabinet minister working with Boris Johnson on implementing Brexit, the European Commission immediately released a document condemning the bill. In an English understatement, it stated that if the proposed measure is not withdrawn by the end of September it will ‘not be shy’ of invoking the legal mechanisms and remedies in the Treaty to secure enforcement, and that trust in any future EU-British negotiation will be undermined.
The global reach of Britain was made evident in Washington within hours of the proposed change in the Northern Ireland protocol being published. Richard Neal, a Massachusetts Congressman with Northern Ireland grandparents and chairman of the powerful House Ways and Means Committee, issued a pointed reminder that the United States was a sovereign country too. He made clear that any measures undermining the Northern Ireland protocol risk wrecking the chance of a US-UK trade deal.
Richard Rose’s newest Palgrave book is How Referendums Challenge European Democracy: Brexit and Beyond. He is Director of the Centre for the Study of Public Policy at the University of Strathclyde Glasgow.
This article gives the views of the author, not the position of LSE Brexit, or the London School of Economics.
These are indeed vacillating times. So much so that we’re witnessing the spectacle of our most senior law officers, namely, the Lord Chancellor and the Attorney General, behave as if the rule of law is but one theory of many; and will have to stand its test, and, in all probability, will fail as many human systems of thought have done. Strange times these!
I too agree that sovereignty cuts both ways. At any rate, sauce for the goose is sauce for the gander.
For a start, the EU has no sovereignty. It is not a state. It has power, certainly. It issues counterfeit currency by the boatload, established for itself the one-way wretched ratchet called acquis communautaire and when it feels obliged, is forced by dint of politics or deems it expedient to call a referendum, and the result is not to its liking it ignores the result or spends a year putting the heavies on the culprit nation-states and calls another referendum. These are simply mafia practices, not anything to do with legitimate governance. The EU makes its own laws to suit itself. It acquired taxing power under false pretences, etc., etc. Anyway, the subject has been debated and gone over ad nauseam. It will work itself out somehow.
As to the EU member states, which have had their powers ceded to the EU Commission by a succession of notionally democratic governments abrogating these states’ sovereignty, being “rechtstates”, well, yes, in principle, but in practice, due to political expediency mostly to do with EU membership, most of them are not. That too has been put on record. Unless the record of our post-WWII history is wiped entirely, people will be able to debate these issues at their leisure for generations to come, if they so choose.
Eu doesn’t issue Euros. They are a shared currency between states either belonging to the EU or associated.
All powers given to the EU are consented through international agreements. We may wish more popular ways of seeing them but they are following the rules of each states.
There are written rules, not unscripted ways and means.
All the states retain the right to refuse EU or international decisions either through their parliaments or courts, see German constitutional court.
The ECJ regularly backed UK.
What you don’t like is a system where the politicians have to contend with the opposition of laws and courts.
“It issues counterfeit currency”
No need to read any further, then.
Richard Rose appears to misunderstand the meaning of sovereignty. A national government is sovereign only if it is free to make its own domestic laws and regulations, free from interference from outside (of the nation) agents or governments. A nation whose government is not free to make its own laws but must accept the influence of a foreign power is not an independent sovereign state but is something nearer to a colony or vassal state. Now if we assume that Northern Ireland still continues to be part of the nation-state of the United Kingdom, then the domestic laws and regulations of Northern Ireland must be determined by the UK government if the government is to be sovereign. Allowing other nations or the EU to influence the laws and regulations of the UK compromises British sovereignty. Rose is wrong to conclude that by Britain asserting sovereignty in respect to the laws of Northern Ireland in anyway infringes on the sovereignty of other EU member states or the USA. Now if Britain were to insist on changing the domestic laws of another nation that would be violating that country’s sovereignty. But Britain is asserting its sovereign rights to make the laws which affect Northern Ireland, and Northern Ireland remains part of the sovereign territory of the UK. The government’s Internal Market Bill might break an international agreement but this does not violate the sovereignty of any nation. Nation-states regularly break international laws. International laws are just agreements between independent sovereign nations, and if these nations are sovereign they can rip up these agreements at any time.
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My English countrymen, generalising, have some unfortunate characteristics. One is to be adversarial, so nationalistic fervour has appeal. Another is to not even try to see anyone else’s viewpoint. Your definition of sovereignty is reasonably correct, provided there are no difficulties or disagreements. What happens if two sovereign countries claim possession of the same island? Does each country say, “We are not interested in any other claims, it is our island? We are not in the slightest influenced by any other politics.”
Saying the EU has no sovereignty is pedantic. We could list all 27 sovereign countries and as they agree, refer to the pooled sovereignty of the 27.
At the risk of stating the obvious your comment fails because there is a problem. The 27 countries have a sovereign right to protect their existing and highly beneficial trading deal with a secure external border. As there is no physical border something must be done. We have signed an international agreement called the GFA. Would you happily disregard that as well? As we, with all our sovereignty, are on one side of the non-physical border what should be done? Something was done to minimise the problems we Brits (English) have caused. Johnson signed a deal, won an election and is now going back on his word!
UK gvt agreed to restri tions of its sovereignty when voting the WA. It can’t then act to disapply part of the WA and tries to go on.
Either it repudiates the WA and bears the consequences or applies the WA. If it wants a middle way it has to negotiate,, not act one-way and then tries hoping for the best.
Do you remember the ruckus about Hong-Kong? The Chinese state issued a law contrary to previous accords. UK chose to manifest its ire and gave passport rights to hong-kongers. Regarding the WA and UKIM bill, UK gvt is now acting as the Chinese gvt. The saddest part is that a free parliament chose to follow the Chinese way. Why bother with a parliament if it chooses to act so? Why bother with a parliament which enacts all bills presented by gvt? Why bother with a parliament which has chosen not to scrutinize gvt’s Statutory instruments? Why bother with a parliament which renounced to vote an FTA when in the same time Brexiteers critize EU which allow its member states and parliament to vote their FTAs? Why bother with a parliament which has chosen to relinquish its powers to a gvt without any controls?
Why trusting a state where even the police forces renounce to investigate a ministerial adviser just because he is a ministerial adviser? And your country speak about the magna Carta, limiting the power of kings, without applying it to your gvt? Seems mad.
I admit Brexit but what I can’t admit is that a free nation submits itself to a mad ideology in order to do it.
If you’re a true Brexiteers, you will even reject WTO as it constrains sovereignty. It will be hard to discuss with your neighbours. True sovereignty is deciding when to act freely and when to accept restrictions to gain advantages. What you’re looking for is a world of entitlement because you’re brits. OK but I’m not a brit and I like to have my voice heard. I like to think to that I belong to an exceptional nation, but I also learnt that all nations have smthg exceptional, their spirit, their history, their well-being…
What’s happening to the Brits??? – The EU is not the Mafia, but the British government and some British commentators seem to mistake sovereignity with arrogance, ignorance and self-isolation.
“Pacta sunt servanda.” – used to be the base of civilization. Outside that it’s not sovereignty but piracy. Without accountable treaties, negotiations come down to the question who can oppress whom by how much.
But even If that should be the new approach in Britain, I wonder why some Brits are so obsessed about “walking away without a deal”: I can hardly see any relevant economic zone where they will have better cards- just look how miserable the negotiations with Japan went.
So again: what’s happening to the Brits???
P.S.: I am German, born in the 1970s in the West and I never watch the History channel.
What’s happening to the Brits? Well to understand what’s going on you need an understanding of what ‘sovereignty’ is. If asserting sovereignty is arrogant then the Brits are arrogant but sovereignty has nothing to do with personal character. The UN’s Vienna Convention on the Law of Treaties gives some good detail on sovereignty. It explains how international law is underpinned by the rights of nations to self-determination and sovereignty. Briefly though, sovereignty is about a national governments right to make the laws of its land. Brexit expressed the desire of Britain to regaining sovereignty and not have its laws influenced by EU institutions that are not democratically accountable. That’s why the phrase ‘taking back control’ succeeded in connecting with the British electorate. To understand Brexit its also worth having some idea of the history of how Parliament has been shaped, through the English Civil War, to the Reform Acts, to the suffragettes and beyond. It is worth considering how the people were not handed their democratic right but had to fight for it tooth and nail. The issue of sovereignty and democracy are intertwined because unless Parliament has full sovereignty to make laws as it chooses, our hard won right to universal suffrage and elect our government has been for nothing. That is why it is vital that our elected Parliament asserts its sovereignty over the territory of the United Kingdom, so that we restore our full democratic right.
Thank you for the explanation. I am 100% sure that the discussion about ‘sovereignty’ around Brexit is missing the point:
EU membership -as any other deep modern trade relationship (“deal”) that involves not only tariffs but also harmonization of standards, rules, taxes, etc.- is about collaboration between sovereign countries.
This involves usually compromises and concessions on all sides, but no fundamental loss of sovereignty. E.g. my children sometimes hide in their rooms behind door-signs such as “this is my territory”, especially at times when the household community expects them to fullfill unpleasant duties. They tend to run open door policies whenever it is in their (short run) interest.
Beyond that, the current outcry in Britain about losing ‘sovereignty’ seems to be an attempt to mobilize British patriotism in order to distract attention away from the fact that close to the Brexit deadline the British government seems to be under substantially more pressure than the EU27.
There are many advantages to trade arrangements and for two independent nations to agree to a trade deal usually requires compromise and co-operation. If an independent UK is to make trade deals with other nations then compromise and co-operation will be needed. But that is not the content of Brexit. In almost every other situation a trade deal does not compromise a nation’s sovereignty. A nation agrees on the terms of the deal but the laws and regulations are entirely the concern of the sovereign government and its institutions. A government may decide to pass laws that insists producers meet certain standards. But this is not an issue of sovereignty because it is the government who is freely agreeing on the trade deal and determining its domestic laws. At any time the sovereign nation can decide to rip the trade agreement. However in the situation of EU membership it entails much more than just a trade agreement – take a look at the Maastricht Treaty for example. It requires that a national government gives up some of its sovereignty and is subject to the laws and regulations of the EU legislative institutions. I don’t think until more recently the British people have been aware of this difference and how EU membership compromised Parliamentary sovereignty.
The decision of the UK to join the Common Market in the 1970s was not taken with democratic consent and the Bill of Parliament was introduced in a very opaque and underhand way. It was never really revealed to the British people the full implications of membership and was largely sold as entry into a trade agreement. Now after a Referendum the UK government was given the mandate to leave the EU. The British government is attempting to fully leave EU membership and regain full sovereignty. If you still remain in doubt about the fundamental importance of the issue of sovereignty to Brexit then consider what is happening today. The British government wishes to pass, via Parliament, the Internal Market Bill. However, the EU objects to this and is demanding that the Bill is not passed. It is demanding that it continues to determine standards and regulations in Northern Ireland, a region of British territory. The EU is clearly denying the right of Parliament to determine the domestic laws of the UK. This is a denial of British national sovereignty. Perhaps it should be pointed out to the EU (and others) that the British nation is not a child who must be told what is in their best interests by a parent.The UK desires to be an independent sovereign nation with a government that is entirely responsible for the laws and regulations of the land.
On your point on national chauvinism, there is no doubt that there are some people and groups who want to bang the drum of patriotism. But the sooner we reveal the underlying issue of sovereignty and democracy then the sooner we can deflect from patriotism. There is not tub thumbing that we experienced in the 1980s. Most British people just want to feel they have more control and say over their government, after all that is supposed to be purpose of a democratic system. Recent EU funded surveys (European Social Survey) indicate the racism is lowest in Britain and is one of the most tolerant countries in Europe. The surveys also indicate that tolerance has also increased since the referendum. However, the cutting edge of racism still tends to focus the on ‘Othering’ non-European people. The EU labour market is divided between European citizens and non-European others with no or few rights. Perhaps combating the unequal immigration policies of ‘Fortress Europe’ is a way you can contribute to reducing racism and nationalism in Europe if you feel concerned about it.
“The decision of the UK to join the Common Market in the 1970s was not taken with democratic consent” There was a referendum shortly after.
“It was never really revealed to the British people the full implications of membership and was largely sold as entry into a trade agreement.” The YES leaflet for the referendum, which was supposed to be distributed to every household in the UK, is online. http://digital.library.lse.ac.uk/objects/lse:fuv593baz . I don’t think it says anything implying that the European Community was just a trade agreement.
Can you find any statement used by the campaign for UK membership of the EU at that time which says or implies that the European Community was just a trade agreement? As prominent as a certain slogan written on a bus 4 years ago, say?
“However, the EU objects to this and is demanding that the Bill is not passed. It is demanding that it continues to determine standards and regulations in Northern Ireland, a region of British territory. The EU is clearly denying the right of Parliament to determine the domestic laws of the UK.” In the Commons yesterday, Ed Miliband drew the analogy with the Chinese in Hong Kong. I think it’s a good one. It is not an infringement of Chinese sovereignty for the UK government to protest when the Chinese government breaks the treaty it made with the UK concerning what is now Chinese territory 25 years ago. It is not an infringement of UK sovereignty for the EU to protest when the UK breaks the treaty it make with the China concerning UK territory.
And one can almost hear the Chinese government arguing that, since the UK government no longer seems to regard its treaties as binding, they shouldn’t be bound by their treaties either.
Thank you for the explanation. I am 100% sure that the discussion about ‘sovereignty’ around Brexit is missing the point:
EU membership -as any other deep modern trade relationship (“trade deal”) that involves not only tariffs but also harmonization of standards, rules, taxes, etc.- is about collaboration between sovereign countries.
This involves usually compromises and concessions on all sides, but no fundamental loss of sovereignty. E.g. my children sometimes hide in their rooms behind door-signs such as “this is my territory”, especially at times when the household community expects them to fullfill unpleasant duties. They tend to run open door policies whenever it is in their (short run) interest.
Beyond that, the current outcry in Britain about losing ‘sovereignty’ seems to be an attempt to mobilize British patriotism in order to distract attention away from the fact that close to the Brexit deadline the British government seems to be under substantially more pressure than the EU27.
There still seems to remain some misconceptions around the meaning of sovereignty. Perhaps some focus on the China/Hong Kong situation will help clarify. When the British demanded the ceding of control of Hong Kong from China after the Opium War, it was an infringement of China’s sovereignty, it was an act of imperialism. But consider this question: if one criticises China’s government for the infringement of the rights of the people of Hong Kong are you objecting to the treatment of the people, or are you demanding that British should have some say over the laws of Hong Kong? That is a very important distinction. A government can criticise the behaviour of a foreign government but this is not necessarily a violation of their sovereignty. To criticise Trump’s treatment of immigrants is not a violation of US sovereignty. The demand to have some say over the law making of another country is a violation of sovereignty.
“if one criticises China’s government for the infringement of the rights of the people of Hong Kong are you objecting to the treatment of the people, or are you demanding that British should have some say over the laws of Hong Kong?” Of course you are partly criticising China for infringing the rights of the people of Hong Kong, but you could just as well criticise China for the way they treat the Uighur Muslims.
However the reason the UK government is especially upset with China over Hong Kong is that there was a treaty between the UK and China and China is allegedly breaking that treaty.
Of course you are entitled to say that treaties should not mean anything. But how on earth anyone expects to get a free-trade deal with the EU when you do not consider yourself obliged to follow treaties is beyond me.
Or to put it another way. Apparently one of Mr Cummings’ favorite quotations is from Bismarck. It goes something like this (the original is in German and French) “When someone behaves like a gentleman, I am a gentleman and a half. However, when they behave like a pirate, I become a pirate and a half”. Boris Johnson has decided to behave like a pirate. Then he shouldn’t be surprised if the EU decides to be the pirate and a half. As the original article says, sovereignty cuts both ways.
“What’s happening to the Brits???” They made the mistake of electing someone who is now showing that his word cannot be trusted. I hope normal service will be resumed soon.
““What’s happening to the Brits (i.e. the English)?”
Well, they have swallowed a large dose of blood-and-soil nationalism, xenophobia and self-righteousness.
Nothing to be done about it until a further large dose of poverty, loss of industry, international pariah-dom and sidelining takes place. Along with, as a matter of course, Irish re-unification and Scottish independence.