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.






6 thoughts on “On Sovereignty

  1. I’m disappointed that you write “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 no longer be at the table. We’d no longer be playing our part in shaping and drawing up those rules.” This simply isn’t true, and it concerns me that you’re not aware of that. Norway is not a member state of the EU, but is able to influence its rules and to delay their implementation. Just read the Norwegian Foreign Ministry’s views on the topic:

    Norway has greatest opportunity to participate in the development of EU policy and legislation at an early stage of the legislative process… Sharing experience and results in specific areas at the appropriate time enables Norway as a non-member state to have its voice heard when new policies and legislation are being developed. Norway’s targeted, long-term lobbying efforts vis-à-vis EU institutions have enhanced its credibility and provide a solid basis for Norway to have an influence.

    In the event of disagreement between the parties to the EEA Agreement on whether new EU legislation is to be incorporated into the Agreement, the procedures set out in Article 102 may be applied: these describe what happens if a party decides not to incorporate legislation… The provisions of Article 102 stipulate that the parties are to make every effort to reach agreement… Since the EEA Agreement entered into force the procedures set out in Article 102 have been activated twice. The first time was in 2002, and concerned Liechtenstein and the EU Second Money Laundering Directive. The second time was in 2007, and concerned Iceland/Liechtenstein and legislation for the free movement of persons. In both cases the EU considered that it was taking too long to incorporate the legislation into the EEA Agreement. Following further dialogue, the parties reached agreement and the acts were incorporated into the EEA Agreement. Norway has stated that it does not intend to incorporate the Third Postal Directive, but the EU has so far not initiated an Article 102 procedure.

    More importantly on the shared sovereignty point, the EU is a regional organisation in an increasingly global world. More and more, the EU is passing on regulation from global bodies: that ‘straight cucumber’ directive, for instance, was replaced by the United Nations Economic Commission for Europe rules several years ago. We can’t negotiate for ourselves on these global rules, because they’re an EU competence. So is our influence more focused as 1/28th of a 750m bloc, or as a 64m state? If Cameron’s recent renegotiations are anything to go by, the answer should be pretty clear.

  2. “We, along with the other Member States, control the powers the EU has.”

    The clause “along with the other Member States” is critical here – in some quite broad areas, the EU has a power to act contrary to our wishes if we cannot get sufficient other Member States to agree with those wishes. There is therefore a layer of government which unanimity among British voters would be powerless to affect.

    “We control the way in which EU law takes effect in the UK.”

    But only subject to the approval of the CJEU, a court with a substantive agenda and an expansive reading of its role. Perhaps just as important, a European court, and not a British one.

    “And, if we consider that EU law has been unlawfully adopted, or that the EU has exceeded its powers, we can say so.”

    “Saying so” sounds a lot like we can wail and gnash teeth but then have to put up with it in the end, which seems to be an increasingly frequent experience.

    In terms of your general argument, I think you conflate “sovereignty” with “power”.

    You make a perfectly reasonable argument that power is divisible, and economic and political interdependencies mean that power exercised in concert is all the greater for it; therefore we might trade away some control over power in order to have more of it. I agree with this in principle, but I think you are mistaken in the degree to which the EU represents a fair bargain of greater power for less control over that power.

    Now, to sovereignty. I like your definition: “A sovereign power is one that knows no superior. A sovereign power is supreme over and within its domain.” But your arguments for the US and the UK as exemplary cases of divided sovereignty are not credible. The arguments of Madison and Hamilton were good rhetorical cover, but their objective was clearly for a sovereign federal government; this argument has surely been settled since 1865. It is laughable to claim that Wyoming is a sovereign state. As for the argument that the Scottish people are sovereign within the British constitution, this is surely twaddle: the British parliament delegated its power to the Scottish people for a lone day in September 2014, but that power was the British parliament’s to give or take away.

    Re “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.” It depends on what you mean by “access”. If you mean “exporting to” then this matters only in the same sense that we have to abide by US, Chinese, or wherever rules to export there. If you mean through some form of single market membership along the lines of the EEA, then yes, we would have to accept more of them over our domestic markets, although with a much greater degree of flexibility over their application than as a full member. Of course, many of the most important standards for market access are now set by worldwide bodies where we only have a seat at the table through EU representation; outside of the EU we would be able to represent our own interests.

    You say that “component parts of a greater whole do not lose their distinctive identity by agreeing to pool and share,” and this may be true. But I think your own case betrays you here; it rests on the fact that Scotland, Québec and Texas remain distinctive identities in the UK, Canada and the US. You even say that our right of exit from the EU should be limited as it is for Québec. Therefore, you imply, the UK has nothing to fear about the EU – it can remain every bit as sovereign as Scotland, Québec, and Texas are. Except that these places clearly aren’t sovereign, are they?

  3. Great point about sovereignty always being shared, but perhaps it’s fairer to say that Brexiteers are looking for a different balance of ‘sovereignty’. Canada and Australia share sovereignty to a much lesser degree with larger neighbours than the UK does, and get along just fine, despite being quite a lot smaller. Sure, they presumably pay a small price for not being more integrated into their larger neighbours, but they obviously think it’s worth it otherwise they’d be forming their own versions of the EU. The position of Scotland is totally different and the Scotland / UK argument and is not really analogous with the UK / EU one. Scotland trades far more with the UK than the UK does with the EU, is culturally and politically far more compatible and, most importantly the UK is really a Scottish construct to magnify Scottish influence and security. It’s very old, very established, and very Scottish!

  4. Please spare a thought for us in the patent profession, who face the prospect of having fought to get a unified EU patent system for decades, one for which a new court is now being established in London (one of three – the others being in Munich and Paris), only to now be faced with the prospect of this possibly being snatched from beneath our noses (and potentially a lot of other business besides) by the threat of Brexit!

  5. Professor Tompkins,

    I wondered if thinking within the Conservative party was beginning to consider the possible value of the presentation of a codified constitution to the UK electorate?

    This would in my thinking take place after a properly resourced constitutional convention. By properly resourced I mean an adequacy of money, prestige, inclusivity, participation, time and mandate. At present the location of sovereignty in the UK constitution is a matter of confusion to the electorate. Particularly in the devolution era this confusion (and others relating to our arrangements) has perhaps strained the Union.

    What would be made, for instance, of a decision by the First Minister to call a referendum in 2020, and the refusal of a Westminster Government to support the passage of legislation at Holyrood to enable it to take place within the law? What if a presiding officer was tasked with deciding whether a referendum bill was within competence notwithstanding? What if the court of session were asked to deliberate between the two governments, or one government/both governments and other petitioners? The debate was not settled, certainly, by the Edinburgh Agreement.

    The Smith Commission and the Scotland Bill process, as hasty as they were, have also left the matter unresolved.

    A properly resourced convention would ideally be able to hear evidence on more concrete triggers for the calling of an independence referendum, and the timescales within which the law will permit repeat performances. The rules of this matter should not permit debate, if respect for the law is not to suffer in this period of heightened and more expectant ambition for Scottish independence. Our current arrangements permit the first minister to present a proposal to the electorate whereby the decision as to whether and when to call a future referendum will be delegated for the lifetime of the parliament to her office, curtailed only by her own interpretation of opinion polls. This is insufficient, and under these circumstances, it is perhaps unsurprising that the constitution is under strain.

    Voting reform, an articulation of the place of the devolved institutions, (and the limits on devolution itself) the place of human rights and the Supreme Court, even the sovereignty of Parliament. Dare we even hope to answer the West Lothian question?!

    All of this and more seem capable of codification. Perhaps it is time, when the economic circumstances will almost certainly preclude another referendum for the next 5 years, for other political parties to seize the temporarily vacated constitutional terrain.

  6. Not a single mention of the competence creep of the ECJ, which in years past you described as a potent threat to UK parliamentary sovereignty in years past.

    Then again, you seem to have avoided qualifiers like “parliamentary” when using the S-word in this article, so it’s hard to tell if you’re talking about a nebulous democratic ideal as opposed to the politocal doctrine Brexiters and Nationalists have in mind.

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