Has Brexit restored Britain’s sovereignty?


The Conservatives’ reluctance to talk about Brexit before 4 July is not at all surprising given its evident failure in economic terms, but the few Conservative supporters who are willing to mention Brexit as an issue in the general election comfort themselves by claiming that it has nevertheless produced one incontestable advantage, that it has restored Britain’s sovereignty. But is even that really so? Sovereignty is a slippery word that has at least three very different meanings. To assess whether Brexit has in fact restored Britain’s sovereignty and, if so, whether that restoration is beneficial, we need to think about the different meanings of sovereignty. If we do that, most if not all the alleged benefits of Brexit disappear.

Three meanings of sovereignty

The first meaning of sovereignty is what it means in British constitutional law, namely sovereignty as the legislative supremacy of Parliament, which is to say the Diceyan legal doctrine that all statutes passed by Parliament count as the law of the land and no court or other body can strike them down.

A second, quite different, meaning of sovereignty is the effective power of a state to get its own way. That can either mean the effective power of the state as a whole, which would include the courts and the law, or, more common in British debates, the effective power of ministers and Parliament to impose their will on others, both domestically and internationally. It has two aspects – freedom from constraint in choosing what to do and practical ability to change how other people behave. Unlike Diceyan legislative sovereignty, sovereignty as political effectiveness is a matter of degree.

A third meaning of sovereignty is more philosophical. It is where a source of power demands allegiance and obedience in preference to the claims of all other sources of power. It is sovereignty in the sense of peremptory authority. If one attributes sovereignty in this sense to a state, one is denying it to any other entity, not just to other states but also to the Church or God or the autonomy of individual human beings. It is the absolutist sovereignty of Bodin and Hobbes.

Brexit and Sovereignty as Legislative Supremacy

In the first sense, parliamentary legislative supremacy, Brexit is said to have restored sovereignty by removing a power of courts, including British courts, to strike down (or ‘disapply’) British legislation that contradicted EU law. Legal reality is more complicated – the power to strike down incompatible legislation was created by and later removed by British legislation, and so in one sense Parliament was always legislatively sovereign. But it is true that a condition of membership of the EU was volunteering to impose a restriction on parliamentary legislative supremacy for the duration of membership. Brexit has removed that voluntary restriction, which is a real change, but it is a change with no necessary implications for other kinds of sovereignty. In particular, it does not in itself ensure greater effective power either domestically or internationally. That has to be assessed independently.

Brexit and Sovereignty as Political Effectiveness

Turning to that second sense, political effectiveness, the claim for Brexit is that it restored Britain’s freedom of action in a number of spheres of activity, notably trade policy, fisheries and economic and environmental regulation. But freedom of action does not guarantee effectiveness in influencing the behaviour of other people. On the contrary, leaving the EU has eliminated Britain’s influence over EU legislation binding on 27 other states, which constitutes in itself a major loss of sovereignty as political effectiveness. On many topics, including immigration and fisheries, the benefits of a gain in control on the British side of the border is more than outweighed by the costs of loss of control over what happens on the other side.  Similarly on trade, freedom to negotiate is not the same as success in negotiation. Britain’s freedom to negotiate has got it nowhere with major powers such as the USA and delivered only a very small number of tiny, disadvantageous deals it would probably have been better not to have agreed. All this in exchange for losing influence on the EU’s trade policy, the policy of one the world’s great economic powers. 

On economic and environmental regulation, a different problem arises. The freedom of action Brexit has created is to do things the electorate hates, such as removing their rights at work and making it easier to pollute rivers and the atmosphere, a freedom that is worthless because in practice the government cannot exercise it.

Brexit and Accountability: Conflating two meanings

A favourite pro-Brexit assertion is that by restoring sovereignty, Brexit has restored full accountability of British ministers and members of parliament to British voters. The argument is that European institutions, especially the European Commission, are undemocratic because they lack electoral accountability. The argument is literally untrue. The President of the Commission and the Commission as a whole cannot be appointed without a majority vote of the European Parliament, which is arguably more democratic than the way British governments are appointed. Boris Johnson, for example, became Prime Minister in July 2019 without any vote in the House of Commons even though his party lacked a majority there.  But the pro-Brexit argument is more nationalist than democratic. Its essence is that only members of the British parliament (a whole House of which is, of course, not elected) should make new law that applies to Britain and that to the extent that any democratic accountability exists, it should only be to British voters.

The problem with this argument is that it works, if it works at all, solely for the first meaning of sovereignty. Parliament delegated some of its law-making authority to the EU in 1972 and until Brexit some laws did indeed come into force without MPs voting for them. But it fails for the second meaning of sovereignty. The institutions of the European Union provided a new way for British governments to implement their policies. The British government had a vote, and often a veto, in the Council and so over all European legislation. It was accountable not only to Parliament but ultimately to the electorate for its use of that vote and for its skill, or lack of it, in obtaining the results it wanted. Admittedly British governments took to blaming ‘Brussels’ for their failures to persuade others to go along with their policies, and sometimes for successes they wanted to conceal, but that was a breakdown of British politics, and British media, not of the EU. 

Brexit and Sovereignty as Peremptory Authority

As for the third sense of sovereignty, peremptory authority, supporters of Brexit might claim that Brexit has strengthened the legitimacy of the British state by undermining the EU as a rival claimant to the population’s ultimate loyalty. The same kind of claim lies behind calls to leave the European Convention on Human Rights on the ground that adhesion to the Convention involves accepting interventions by a ‘foreign’ court. But there is no evidence that many people thought of the EU as claiming that kind of loyalty in the first place, which is not surprising since the EU has never asserted an absolutist form of sovereignty, only a limited legal form. 

A more important question is whether the third kind of sovereignty a good thing anyway. Accepting the peremptory authority of states or state-like entities, whether the UK or the EU, without any qualification or limitation, is dangerous, as philosophers from Locke to Maritain have pointed out. Worship of the state is a kind of sovereignty not even conservatives should be promoting, let alone liberals and social democrats. It belongs to the far left and the far right. We should come together to resist it.

Brexit and Sovereignty: A Pyrrhic victory

Has Brexit restored British sovereignty? Only in the sense that Parliament has ended a restriction on its own legislative supremacy that it had imposed on itself (and, incidentally, has re-imposed on itself in Northern Ireland). In terms of political effectiveness, Brexit has expanded the field of topics the British government and Parliament talk about but has done nothing to increase their effective power – indeed in many respects Britain’s effective power has declined. In terms of democratic accountability, the only real change is that failures governments previously disguised by dishonestly telling voters that they were the fault of ‘Brussels’ will now be more obviously their own fault, as they always were.  And in terms of demanding the absolute loyalty of citizens, no evidence exists that Brexit has made any difference, and in any case demanding absolute loyalty is a dangerous habit for a state to develop. If Brexit’s restoration of sovereignty is any kind of victory, it is distinctly Pyrrhic.

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Radix is the radical centre think tank. We welcome all contributions which promote system change, challenge established notions and re-imagine our societies. The views expressed here are those of the individual contributor and not necessarily shared by Radix.

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