By Chris Kirkland
One of the main arguments of the Brexit campaign revolves around the concept of ‘sovereignty’. The basic argument put forward by the campaign is that if the British voted to leave the European Union (EU), then ‘we’, the people, would claw back ‘our’ sovereignty. Whilst this argument has been advocated by a range of groups and campaigners (here and here for examples), little attention has actually been spent on understanding the concept of sovereignty on which the argument relies. Here, I ask a series of related questions. What is sovereignty? And as a concept, is there a useful distinction between the holding and the exercise of sovereignty? I ask who the term ‘we’ refers to, and whether sovereignty, resides with Parliament, the electorate or some sense of ‘the people’. How does all this impact the forthcoming EU referendum, and especially the argument that sovereignty has been ‘lost’? These questions matter because both sides have engaged with a very technocratic debate surrounding the economics of remaining or leaving the EU, yet in doing so have arguably simplified a complex issue.
Those who advocate Brexit rest their decisions, at least partly, upon the notion of sovereignty. Britain’s membership of the EU, so the argument goes, impedes its ability to do what it wants. Supporters of this argument point to the fact that EU law supersedes British law where there is a direct conflict between the two (though the only example of this relates to legislation regarding fishing quotas passed in 1988). This, however, according to those arguing to vote leave in June, is bigger than single issues, but a question of theoretical and substantive importance.
I first wish to start by defining what I understand by the term sovereignty. Here I define sovereignty as absolute power. Important here is the notion that holding sovereignty is different to exercising it. I suggest that Brexit campaigners, rather than relying upon a tangible distinction of sovereignty, one that is easily transferable (and visibly ‘lost’), it would be more accurate to speak of Britain’s ability or propensity to exercise sovereignty (again defined as absolute power). Here, the question is not whether ‘we’ – and this issue of ‘we’ is problematic, as I argue below – have seen a reduction in our capabilities to exercise power, but if we are less likely to exercise these powers. To say that Britain retains sovereignty is to suggest that at any point the country could simply leave the EU (exercise an ultimate veto or prevent an unwanted piece of legislation affecting the country). This is theoretically possible via a simple Act of Parliament (just as any other constitutional change). The fact that such a decision or action would have negative consequences, not least the political and economic shock it would bring, is irrelevant for issues of sovereignty. I do not here suggest that undertaking such a change would be either normatively beneficial or problematic, but it at least is possible in theory. The distinction here is that, whilst this is possible, it is unlikely; given the vast range of legislation that would be affected by such a sudden change in British law it is close to inconceivable that any government would exercise such a move over a single piece of legislation. Therefore, rather than speaking of sovereignty being ‘lost’, I argue that EU membership simply makes the propensity of a British government (either present or future) to exercise of sovereignty as being reduced.
Such notions of lost sovereignty also pose theoretical discussion over the nature, and meaning, of the referendum. In almost a paradoxical manner Brexiteers see the referendum as both a means of empowering but also returning sovereignty. This is conceptually problematic, as the directive for holding the referendum has not been issued from the EU, but from Parliament. The referendum has been made possible through a simple Act of Parliament and will be decided by the British electorate, outside of the structures of the EU, thus posing the question has British sovereignty really been lost to the EU?
One line of argument is that such a ‘return’ needs to occur as it currently resides in undemocratic, European institutions. As explained above this neglects Parliament’s ability to ultimately withdraw Britain from the EU. However, such disagreements may be more nuanced than triggering a withdrawal; for example, Britain has, through negotiations with EU partners, been successful in achieving a series of ‘opt outs’ in areas such as single currency and the Schengen area.
Alongside this contestable notion of sovereignty is the question of who ‘we’ refers to, to whom should sovereignty be ‘returned’ or granted? Here I argue that rather than seeing such a transfer as becoming intrinsically more democratic ‘we’, defined as the population would not see an empowerment generated through claiming ‘back’ sovereignty. Instead sovereignty would enhance, or uphold, the powers of Parliament which, due to its bicameral legislature, contains a strong unelected presence. Thus, the ‘regaining’ of sovereignty if such a feat were viable/possible would not return power to the electorate or wider population. Under the current British constitution sovereignty resides with Parliament. As the Coalition government demonstrated Parliament has the ability to change the manner through which it interacts with the electorate, namely through elections. The Coalition’s Fixed-Term Parliament Act has changed the timings of elections (previously at the government’s discretion, but within five years of the previous election). Prior to the Act, British post-war elections occurred once every 3.67 years. Each Parliament therefore possesses, in theory, and based upon notions of sovereignty, to extend (or curtail; either through legislation or a vote of no confidence) its own existence.
The issue of sovereignty is therefore one which should be examined further. I have raised the question how the Brexit campaigners have used the term sovereignty. Through offering a definition of sovereignty as absolute power I have argued that a distinction exists between losing sovereignty and a declining marginal propensity to exercise sovereignty. Through extending the conception sovereignty to include conceptualisations of the referendum itself I have also demonstrated the paradoxes of Brexiteers’ claims that sovereignty has indeed been ‘lost’.
Chris Kirkland is teaching associate at the Department of Politics, University of Sheffield. He is currently researching British elections. More about his research is available here. He is on Twitter: @ChrisDJKirkland