Brexit: sovereignty abuse

By Richard North - December 12, 2020

There was speculation yesterday on whether Johnson really is utterly clueless or whether he has been negotiating in bad faith throughout, his aim always being a “no-deal” outcome. He simply strung 27 countries along, at the expense of a huge amount of work, effort and expense.

Supporting the first thesis is an anonymous account of the famous tête-à-tête between VDL and Johnson, which seems to have been something of a train crash.

However, nothing here has evidential value and, as to whether Johnson is either clueless or acting in bad faith, one need not rule out either. Both, in fact, is almost a racing certainty, given the fool’s attempts to by-pass Barnier and appeal directly to Macron and Merkel.

Johnson scores on duplicity for seeking to subvert the accepted procedure, and for stupidity in believing that he could get away with it. But there can hardly be a higher level of stupidity in a man who then asserts that a no-deal is now “very, very likely” and then goes onto describe this as a potentially “wonderful” outcome.

There is a possibility, in this latter event, that the man is not lying, and actually believes the guff he is trotting out, although with Johnson, the normal process of giving someone the benefit of the doubt is reversed. Unless there is strong evidence to the contrary, one automatically assumes he is lying.

Marina Hyde puts it quite well. “For Boris Johnson”, she writes, “lying is not second nature: it is nature. Even on the occasions he wants to tell the truth – a rarity, but imagine it momentarily aligning with his self-interest – he has to make a vast, almost physical effort to override his psychiatric biology. It’s like watching a cat try to bring up a six-kilo hairball”.

I’m sure I must have remarked on this before, but there cannot be a time in living memory when it has been possible to go into print and call a serving prime minister and out-and-out liar, without the slightest fear of a law suit.

And Hyde isn’t on her own in today’s press, being joined by Tom Peck in the Independent, who compares Trump and Johnson. Trump was a liar, Peck says, but he was also a fantasist, an unknowing liar, much of the time, who had long stopped being able to tell the difference between the truth and his own version of it. But Johnson is no such thing. “All his lies, and they are many, are full-throated and real”.

Inevitably, it is the left-of-centre press which is making the running on this. You wouldn’t expect the likes of the Telegraph at this juncture to point out that their golden boy has feet of clay. But it really is remarkable that there is so little confidence in a man in such a crucial position, at such an important time in our history.

Not least of his infelicities is the man’s obsession with “sovereignty”, and his insistence that the EU’s “level playing field” provisions would breach this precious attribute, despite von der Leyen’s assertion that the UK would remain “free sovereign” by retaining its ability to decide what to do in the event that the EU tweaked its standards.

So much rests on this concept of sovereignty, to the extent that the whole deal seems to depend on its preservation, that one might expect that Johnson had a clear grasp of what he is seeking.

However, as we have rehearsed on this blog, and in the comments section many times, there is no simple definition of the term, or universal acceptance of how it applies in practice or in various circumstances.

Referring to Philip Alston’s book on “Treaty-Making and Australia”, which I cited recently, illustrates the point, He writes of different contexts often being “unclear” and even contradictory in the use of a concept which is “conveniently open-ended and multipurpose”.

Sovereignty, he says, has become a popular slogan in various settings. The term is often used in political discourse as a “surrogate for other unspecified concerns”, so much so that the term is often invoked for very different purposes and with widely different connotations.

It is “not sufficiently precise”, he adds, “as to contain ready answers to any of the key questions confronting modern democracy”. With that, Alston cites other work to argue that “owing to its all-or-nothing character”, a debate over sovereignty “is likely to be either distorting or uninformative”.

In theory, of course, Brexit has restored to the United Kingdom – for as long as it remains intact – its long-lost sovereignty, most often exemplified in terms of the ability to control its own borders and to make its own laws.

Thus goes the rhetoric that the nation which gave to the world the idea that democracy relies on the right of the people to dismiss a government which has failed them, has shrugged off a form of government which was essentially a one-party state, in which the same unaccountable ruling elite would be permitted to remain in power for ever.

However, no sooner were the so-called “Brexiteers” revelling in their victory, insisting that their new-found sovereignty should not be compromised, then the very object of their desire was fading, rather like the rainbow which disappears as one approaches its end. The problem, in a practical sense, is the very ambiguity over the meaning of sovereignty, to which Alston alludes.

If we go right back to basics, traditionally, sovereignty has been assumed to be the right to govern, with a sovereign being a person on whom was conferred a divine, i.e., God-given, right to rule.

Thus, although sovereignty is often elided with power, the concept works better if it is treated as an absolute, distinct from power. Where sovereignty is held to stand alone as a unique property, its relationship with power is then simplified and clarified.

Basically, if the former is regarded as an inherent (or even inalienable) right, it requires power in order to exercise it. And the power is relative and variable – and can be delegated. A “sovereign” can have power in some areas but not in others.

A sovereign can even be devoid of power, such as when a minor or incapacitated and the power is exercised by a regent. The term ‘regent’ itself helps to illustrate the distinction between sovereignty and power. Derived from the Latin regens, meaning ruling or governing, it implies a separation between the person and the power, especially when a fully empowered sovereign might be termed the regnant monarch.

Within that framework, even as a member of the European Union, the UK had kept its sovereignty intact – evidenced by its right to withdraw, which had existed before Article 50. It had retained the right to govern in the manner of its choosing, but had delegated many of its powers.

Thus, when Edward Heath claimed that joining the EEC meant “no essential loss of sovereignty”, he could be judged as being not entirely incorrect, although more than a little disingenuous. It would have been better – and more honest – had he stated that there was an essential loss of power, which would increase over time.

On this basis, when sovereign states conclude treaties, they usually do not cede their inherent rights to govern – the most obvious exception being the 1706 Treaty of Union between England and Scotland.

Where trade and like agreements give treaty organisations which they create – such as the EU – the power to frame regulations or standards, the nations are simply delegating their powers. Sovereignty is preserved as long as states reserves the right to end the agreements and to recover their powers.

Thus, despite Johnson’s largely inchoate prattle, when it comes to the “deal” under negotiation, as long as the UK retains the right to decide how it will respond to moves by the EU in respect of level playing field and other provisions – even to the extent of terminating the treaty – sovereignty is preserved.

As yet, though, there is no indication whatsoever that Johnson has come to terms with the complexity of the issue with which he is dealing. We are in the hands of a shallow egoist to whom – it seems – sovereignty is no more than a vague “feel-good” factor that he can sell to his adoring fans.

And with that, he has no grounds whatsoever, to reject this deal (what we know of it) on the grounds of sovereignty. To do so would be an abuse of the term.