“Whilst Parliament has remained sovereign throughout membership of the EU, it has not always felt like that.”
(UK Government, 2017)
One of the questions I have in my own head is why I don’t deal with the ‘reality’ of Brexit. These would be questions of achievable Withdrawal Agreements, the party politics, and what I think the end result will be. THere are a number of reasons I address the ‘principles’ underlying Brexit, instead of the practical ‘reality’ of Brexit: part of me believes that what is reported in the news is a result of a politically orchestrated theatre ー that none of the politicians are as intransigent or ill-informed as they appear ー and that some mystery Brexit is being negotiated, bearing no resemblance to the reported Brexit, somewhere in the background; even if my conspiratorial suspicion is wrong, there are too many moving parts for me to trust my predictions; the part that I find the most dissatisfying is the complete betrayal of consistent principles and meaningful words.
I have bemoaned Brexit for not being a good example of democracy, having bad reasons for neglecting its own correction mechanism (The People’s Vote), running the risk of losing protections that are in place for citizens, and for winning on the back of an illegal campaign.
Now I want to explore the main thing (aside from immigration) that Brexit was meant to solve: the UK’s sovereignty.
What is sovereignty?
Sovereignty is about having authority or autonomy over something. A lot of countries have more than one sovereign body. In the USA there is the executive (President), Congress and the Senate. In the UK, there is the Government, Parliament and the Lords (and, arguably, the Queen ー more more easily arguably, not the Queen at all).
There is then the important point that the Government governs at the consent of the people. That’s not exactly true (but the sentiment is important). Parliament is (democratically?) elected, so if anyone operates under the consent of the people, it is Parliament.
The Party that is then afforded the opportunity to form a Government (i.e. appoint ministers and secretaries of state) is almost a side effect of votes for the Members of Parliament (MPs).
Lords are appointed.
Who is sovereign?
This raises the question: who should be sovereign? In normal operation, Parliament is sovereign save for a few executive powers reserved for the Prime Minister and Government. But, certain tasks, like assenting to a law, also need agreement from the House of Lords (and, ceremonially, from the Queen). Over that, there are some EU institutions that have sovereignty over some aspects relating to trade.
It is that last sentence ー about the EU ー that allowed this rhetoric about returning sovereignty to Parliament. But it should be immediately suspect: Parliament voted to join the EU and therefore invited in EU oversight in the areas it is also proffering benefits; the UK has been a participating member of the EU, helping shape it and consistently giving assent to EU laws, changes and oversight; the EU has even made itself sovereign within the EU, securing border rights other members don’t have and reforming or even creating various institutions.
What about the argument that sovereignty doesn’t belong to Parliament, and they simply borrow their right to sovereignty from the people? Surely that is what a Referendum is about; returning sovereignty to the people. There are several problems with this: an ill-informed electorate, Parliamentary democracy and the risk of giving sovereignty to the date of the Referendum and not to the people.
There are certain things at this stage that we just have to embrace as fact: that the UK is negotiating its position with the EU and the state of public discourse are evidence that no one knew what Brexit would entail when they voted, and in some respects still do no. That means the electorate was not well informed. Certain details about the EU were available ー like the four freedoms that underpin the Single Market: the free movement of goods, capital, services, and labour ー but were not widely circulated. Those are facts, and the conclusion appears to be that the people should not be sovereign on this issue.
Also, the UK’s democracy doesn’t elect delegates to do as the electorate wishes. It is a Representative Democracy, which means an MP’s job is to represent its constituents’ interests, not their demands. The theory is that MPs are better placed to understand the economics and politics of decisions.
If the UK were to ignore all this and give sovereignty to the people on this question, what would that look like? Is the 2016 EU Referendum still the best available data on the question? How should someone interpret a 52% vote for a breadth of different options? Norway, Canada, Single Market, Trade Union? The runs the risk of giving its sovereignty to a naive interpretation of the vote on a date ー and that may be a far cry from the People.
So, hang on ー what is sovereignty?
Part of the problem is that “sovereignty” is an implicitly paradoxical word. It appears to assume ‘supreme’ power, but that simply doesn’t exist.
There are only two ways for “supreme sovereignty” to exist politically: either completely dominate ー in a colonial sense ー every country that one interacts with; else do not interact with other political entities. Everything else requires negotiations and balance.
Even outside of supranational arrangements like the EU, all international agreements (short of colonialism) involve rules that each party assent to, even though they place some limits on sovereignty. In trade deal negotiations, for example, each sovereign state looks to protect itself by holding its partner accountable for decisions that might otherwise damage the market of the other. These are political decisions about business subsidies, taxes and social and environmental protections.
Signing up to such an agreement is not a loss of sovereignty. Sovereign states voluntarily sign up to such deals because it is an opportunity for extensive economic progress. Each sovereign state also accepts that suddenly opting out of the agreement will impact every economic entity (e.g. businesses) that relied on that deal (e.g. by importing component parts from, or having preferential access to a market in the partner state).
None of this violates sovereignty
The EU’s intransigent negotiating position is evidence the UK is not sovereign
So, the argument goes that the EU is making it difficult for the UK to leave, and this means the UK is not actually free to leave, and therefore is not sovereign. This is a naive look at the situation and definition of ‘free to leave’.
Any freedom is not freedom to act without consequences. It is freedom to act. (A discussion about consequences is necessary for informed decisions.) In this context, freedom to leave the EU is enshrined in Article 50 of the Treaty on the European Union. That freedom has been enacted; the UK has invoked this right and will leave at the end of next month (unless 27 other sovereign member states agree to an extension, or a sovereign UK Parliament unilaterally decides to withdraw Article 50).
That is the right to leave, fully enacted, and the freedom for the UK to change its mind. Sovereignty, explicitly granted by the EU.
What is seen as the EU’s protectionist bullying and intransigence has two important rebuttals: the EU’s position clear clear from before the campaigns and so the UK should have been able to discuss the consequences; the predictable and politically unpalatable consequences of leaving the EU don’t make the decision to leave invalid.
Let’s unpack those two in turn. The EU’s requirement to protect its Single Market and to foster the four freedoms should always have been known. Not only can one figure it out by simply playing out the basic economics of the trading bloc, but it has been openly written about (BBC News, 2001). On top of that, there are already countries with very close relationships to the EU without being member states; politicians and voters could very easily explore those relationships. In short, the broad direction and tone of the consequences of leaving the EU should have been readily understood.
Given the predictability of the future relationships with the EU, it is very difficult to argue that it is “bullying” the continue to claim that same consequences that always applied still apply. The problem here is not the EU insisting that the consequences of the UK’s red lines are the consequences, but the UK’s constant denial. The UK is asking for a special and unique relationship with the EU that violates the four freedoms and undermines the integrity of the single market. The EU saying “no” to such an audacious request is not bullying or intransigence.
It’s not the economics; it’s Ireland
There is also an argument that the EU is being unreasonable about the Irish Backstop.
The island immediately west of Great Britain is Ireland, and it is two countries: The Republic of Ireland (ROI) and Northern Ireland (NI). ROI is an EU member state in its own right. NI is a member of the United Kingdom, and is thus in the EU. After Brexit, NI will leave the EU with the UK. ROI will stay in the EU. This means the border between NI and ROI will also be a border between the UK and the EU.
The nature of this border depends on the future relationship between the EU and the UK. Indeed, if a very close relationship is maintained and the four freedoms are respected, then the border barely has to be there at all (like it is barely there now).
(This might seem alien to US readers, but the EU member states have borders more like the US states have borders: basically none to the law abiding person and products. This is not the case for the UK, which does have border control ー unlike any other EU members state.)
The problem is that the UK’s position is one that rejects the four freedoms, doesn’t want to be in the trade union and ー in summary ー is quite distant from the EU. (This makes sense, after all, what is the point of leaving the EU to change nothing? What is less clear is what the material point of leaving the EU at all is.) The UK’s positions obviously and predictably means a proper border is required between ROI and NI.
The border is unacceptable. It’s politically and socially unacceptable, as any reading of Irish history will confirm. It is also legally unacceptable because of the international peace treaty called The Good Friday Agreement, which requires that the island remain united.
The backstop is a solution to this problem. It either moves the border into the Irish sea and keeps NI in regulatory alignment until a better solution is available, else it keeps the whole UK in regulatory alignment until a better solution is available. This latter option is what Theresa May got into her deal and what the sovereign UK Parliament rejected.
The UK rejects the former backstop option because it would split up the union, and rejects the latter one because that is not Brexit. Instead, the UK wants some other solution. There are no additional details (Brady, 2019).
Note, here, that the EU is not being intransigent: is has offered two solutions, one of which the Prime Minister accepted, but the sovereign UK Parliament did not.
So ー one last time ー sovereignty
The UK Parliament was sovereign when it decided to enter the EEC, which became the EU (which should not have surprised anyone (Soltesz, 2009)). Under Article 50, the UK Parliament can be sovereign in a decision to leave the EU. When looking at options to leave, the UK Parliament has been sovereign in rejecting two forms of a backstop as solutions to the problem that could occur with a hard border in Ireland.
I think the UK Government sums it up itself, rather well: “Whilst Parliament has remained sovereign throughout membership of the EU, it has not always felt like that.” In other words, the worry over sovereignty is a whipped up emotional appeal with no basis in fact.
Brady, G. (2019) GRAHAM BRADY calls for an ‘alternative arrangement’ to Brexit backstop. Available from: https://www.dailymail.co.uk/debate/article-6638551/SIR-GRAHAM-BRADY-calls-better-solution-Irish-border-problem.html [Accessed 4 February 2019].
Soltesz, B. (2009) Past, Present and Future of the Single Market of the EU. [online]. (no place) University of Economics, Prague. Available from: http://uni-obuda.hu/users/vecseya/RePEc/pkk/wpaper/0907.pdf.
UK Government (2017) The United Kingdom’s exit from, and new partnership with, the European Union. Available from: https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union–2 [Accessed 4 February 2019].