On Sovereignty

Questions of sovereignty feature in both Scottish and UK politics at the moment. As MSPs were sworn in last week a number declared that their true allegiance was to the sovereignty of the Scottish people, rather than to Her Majesty, her heirs and successors. South of the border, where the EU referendum is a much bigger political story than it is in Scotland, the Vote Leave campaign are trying to move the argument away from the economy and onto questions of sovereignty. “Take control”, their banner implores, a plea that invites us to return sovereignty from the EU to the UK.

Sovereignty is not a difficult concept. A sovereign power is one that knows no superior. A sovereign power is supreme over and within its domain. The Nationalist invocation of the sovereignty of the Scottish people is a claim that Scots have the absolute and unqualified right of self-determination. If they demand statehood they shall have it, no ifs and no buts. The Brexiteers’ demand that we take control is fuelled by a sense that, within the EU, the UK has lost its sovereignty, that it is beholden to a higher power—the power of Brussels—and that the magic of sovereign freedom can return to these shores only if we vote leave.

It strikes me that both the Nationalists’ and the Brexiteers’ claims to sovereignty are misplaced and, moreover, are misplaced for the same basic reason.

It used to be thought that being sovereign is like being pregnant. You either are or you are not: you cannot be partly sovereign, in the same way as you cannot be partly pregnant. But this is an error, and has been for centuries. It was the American founding fathers who showed decisively that the atom of sovereignty could be split. In the Federalist (1787), Madison and Hamilton explained how the “more perfect union” which the various states were proposing to form by becoming the United States would not destroy state sovereignty, but would safeguard it, by making both the national defence and the nation’s economy more secure.

Federalism as in the USA, union as in the UK, and confederal arrangements as in the EU are each designed to pool and share. These are not surrenders of sovereignty to a higher power, but investments in sovereignty in order to protect and enhance it. In Scotland we know the arguments backwards, because we spent two long years thinking of nothing else: of how we are safer, stronger and more prosperous inside the UK than we would be outside it.

Component parts of a greater whole do not lose their distinctive identity by agreeing to pool and share. Texas is still Texas as Québec is still Québec. And agreements to pool and share can always be undone. But, just as union requires two (or more) consenting parties, so does disunion. The UK cannot just walk away from the EU regardless of the rights and interests of the other 27 Member States, just as Québec has no unilateral right to secede from Canada.

That’s why absolutist claims to the sovereignty of the Scottish people are misplaced. Of course Scots may choose whether to stay in the UK or to leave it—18 September 2014 is testament to that. But, at the same time, that choice cannot be exercised regardless of other obligations. Among those obligations are responsibilities Scotland has as a nation within the United Kingdom, not least the obligation to obey the law. The law says that the union is a matter for the United Kingdom Parliament. A lawful secession, therefore, is one that has Westminster’s consent. Absent such consent, purported secession would be unlawful.

In this way, sovereignty is split in the UK. Our constitution recognises the sovereignty of the Scottish people (the 2014 referendum, just like the 1979 and 1997 devolution referendums, was a vote among the people of Scotland alone, not the whole of the UK). But our constitution also provides that such sovereignty is to be exercised within a legal framework, and not lawlessly. One might have hoped that lawmakers would declare allegiance to the constitution and to the rule of law. For myself, whilst of course I recognise the sovereignty of the Scottish people, I would also insist that such sovereignty be exercised subject to—and not despite—the constitutional law of the land.

If sovereignty is shared within the United Kingdom, so too is it shared between the United Kingdom and our international partners, not least the European Union. Of course it is the case that the UK, like all Member States of the EU, must obey (“give effect to” would be more accurate) European law. This is because we voluntarily agreed to do so when we joined the EU in 1972. But it is also that case that we are under legal obligations with regard to EU law because and only because UK law says so (this is clear as a matter of case law and statute alike). Moreover, the European Union is a creature of limited legal competence: it has only those powers the Member States have assigned to it under the Treaties. If it exceeds those powers it is acting unlawfully. If (as we do) we have the right to leave the EU; if (as it does) EU law takes effect in the UK because and only because UK law so provides; and if (as it does) the EU has only those powers assigned to it by the Treaties (amendment of which requires the unanimous agreement of all Member States), then what sovereignty is it we’ve lost and needs returned from Brussels?

Take control, they say. We already have control. We, along with the other Member States, control the powers the EU has. We control the way in which EU law takes effect in the UK. And, if we consider that EU law has been unlawfully adopted, or that the EU has exceeded its powers, we can say so.

Like the Scottish Nationalists, the Brexiteers misunderstand the nature of sovereignty in the modern world. The reality of power is that it is shared. No-one exercises it absolutely. Everyone, even the most powerful, is constrained by law, by the need to seek agreement, by consent.

This would be the case for Scotland even if it left the UK, just as it would be true for the UK even if it leaves the EU. I wrote many times on these pages in 2013-14 that the SNP’s prospectus for Scottish independence would increase, not decrease, Scotland’s dependence on the rest of the UK and would do so at the same time as reducing Scottish influence in London. (Who would have set interest rates in an independent Scotland? The Bank of England. And what influence would Scotland have had over the Bank’s decision-making? None.) The Brexiteers’ case suffers from the same fatal flaw. If the UK wants access to the EU’s single market we’d have to abide by its rules whether we are a Member State or not. Yet, without being a Member State, we’d have no influence at all over what those rules are. We’d still be dependent on Brussels but we’d no longer share power with our partners in Europe. We’d no longer be at the table. We’d no longer be playing our part in shaping and drawing up those rules. Yet we’d not be able to escape them. That’s not control: it’s subjugation.