Regulating rather Constituting a (Dis)United Kingdom
In thinking about sovereignty within the United Kingdom, it is helpful to separate out two ways in which sovereignty has historically been identified in both the United Kingdom and elsewhere.
Sovereignty is, first, a power over others, most notably absolute and final authority over a territory. If this allows those holding it to achieve considerable things, it also generates apprehension as it allows them to do many things to others.
Sovereignty is, secondly, a constitutive power. It expresses the authority of an exercise of collective will that has established a political arrangement. When we talk of the sovereignty of France or Germany, therefore we are referring to sovereignty in these terms. Loughlin and Tierney have observed that these arrangements invariably involve settling a relationship between ruling authority, political community and territory. This dimension to sovereignty allows political power to be identified from other forms of power. In this, it both allows collective identity-formation, and legislative action to be taken in the name of that collective identity: be it the public, the State or the people.
EU law has generated debates in many EU States about both these dimensions.
The claim to limit the absolute authority of national law goes to the former. It has led to an accommodation in most EU States where domestic courts have refused to see EU law as founding legal authority within the EU. However, as most exhaustively set out in the edited collection by Albi and Bardutzky, they see primacy of EU law as a conflict of laws rule which, without having this foundational authority, requires EU law to apply at the expense of almost all national law under almost all conditions.
The ‘constitutional identity’ case law of national courts goes more to the second debate. The position was elaborated in most detail in the ‘identity review’ reasoning of the Lisbon Treaty judgment of the German Constitutional Court. Notably, as that court’s EU Own Resources decision has recently reiterated, EU law should not restrict Germany’s possibility to constitute itself as a democratic State by unduly constraining law-making and policy in fields seen as most central to this democratic constitution. This included fields identified with political community because they had significant distributive features (eg budgetary and social law) or were emblematic of a common lived experience (eg family, religious and civil society law); fields identified with territory (eg foreign and defence) and fields identified with States’ powers of rule (policing and criminal justice) If the Court of Justice has pushed back against this, most notably in RS, there is little debate that this dimension has been a central field of contention between the Court of Justice and national courts.
The monocular British vision
During the United Kingdom’s period of EU membership, British courts focused on the first dimension of sovereignty, namely which law had ultimate authority over the other within the United Kingdom. Furthermore, this was addressed in a highly contrived way. The authority of EU law was constructed as a matter of UK Parliamentary intent, in particular what authority the European Community Act 1972 had deemed EU law to have.
This had three consequences for the United Kingdom settlement.
First, it widened the gap between EU’s legal authority within the United Kingdom and its political authority. The focus on the first dimension of sovereignty meant that EU law enjoyed more practical authority in the UK than in almost any other EU State. As UK Acts never stated that they overrode EU law, all were constructed as intending EU law to be supreme. The absence of a UK written constitution meant, moreover, there were no other limits on EU law’s authority. By contrast, the failure to address the relationship between EU law and the constitution of the British State meant EU law’s potential effect on political authority was not addressed. It was for others to do this, and most often it was EU law’s opponents who sought to dismiss it. This was most visibly done in the press. The clearest institutional expression was the section 18 of the 2011 European Union Act which made clear that EU law only enjoyed any legal status by dint of parliamentary permission.
Secondly, there were no practical legal avenues for mediating tensions between EU law and expressions of UK political community. This became very apparent at the time of Brexit referendum. Two salient issues were pushed by the Leave campaign which sat at the heart of the idea of a British community of free and equals, which had become ongoing sources of grievance. First, free movement of persons rights, which went to conditions of membership of this community for core entitlements (ie voting and socio-economic rights). Secondly, fisheries concerned communities whose socio-economical marginalisation raised questions about where the UK was honoring its commitment to them as members of its political community. The touchstone for this was the extensive regulation of their livelihoods by EU law.
Thirdly, it contributed to the framing of issues during the Brexit referendum. As Sobolewska and Ford’s magisterial work show, voting went very much to questions of political community, with issues of collective identity and strong cleavages based on geography, age, and education central to the vote. Furthermore, the issues outlined above touched very visibly on what commitments were required within in a community of free and equals. However, debates were never framed in terms of the quality of UK political community or citizenship. There was little on whether the EU contributed to British citizens’ commitments to one another or softened economic and political inequalities within the UK. Issues were framed either as ad hoc grievances or as a question of juste retour. The UK was contributing more than it was receiving from the EU.
Sovereignty in the UK after Brexit: parliament, repatriation and no political community
This legacy fed into understandings of sovereignty that have emerged since Brexit.
First, there has been a doubling down of the vision of sovereignty as absolute authority.
On the one hand, the phantom of EU legal authority has led to a vision of sovereignty as resistance to external authority. In discussions about the Ireland/Northern Ireland Protocol, the UK Government’s Command Paper emphasized at paragraph 73 that it has special responsibilities to Northern Ireland because it is the ‘sovereign Government of all of the United Kingdom’. This provided the basis for its concerns over EU law disrupting trade between Northern Ireland and the rest of the United Kingdom, the exclusive application of EU law regarding the marketing of goods in Northern Ireland, and over the Court of Justice having ultimate authority over the interpretation of the Ireland/Northern Ireland Protocol in the Withdrawal Agreement.
On the other, EU law softened Parliamentary sovereignty. Other doctrines emerged during membership, notably those of constitutional statutes (subsequent statutes would be assumed to comply with these unless they expressly repeal or amend them) and legality (statutes would be assumed to comply with fundamental rights unless they squarely constrained them). With the discipline of membership now absent, more absolutist interpretations of Parliamentary sovereignty are emerging. The most recent example is Allister and Peeples concerned a challenge to the Ireland/Northern Ireland Protocol on the ground inter alia that it violated article VI of the Act of Union 1800, which provides for a freedom to trade between (now) Northern Ireland and the rest of the United Kingdom. It was argued this latter Act was a constitutional statute, which, along with fundamental rights, could only be repealed or amended expressly. This had not happened here The UKSC was dismissive and stated:
‘66. the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament. Furthermore, the suspension, subjugation, or modification of rights contained in an earlier statute may be effected by express words in a later statute. The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme. A clear answer has been expressly provided by Parliament in relation to any conflict between the Protocol and the rights in the trade limb of article VI.’
Secondly, if we turn to the constitutive dimension of sovereignty, courts remain silent and it is only invoked by UK government officials. It is, in particular, identified with policy fields where the United Kingdom can act now because power has been repatriated from the EU. It has thus become identified with territorial exclusivity because free movement of persons was framed as prevented the UK doing this. The irregular crossings into the UK across the English Channel continue to be portrayed, therefore, as a loss of sovereignty, with the Act addressing them, the Nationality and Borders Act 2022, initially known as the Sovereign Borders Bill. Equally, the UK government stated at para 171 of its White Paper on the UK Internal Market that its new subsidy control regime was a ‘sovereign’ one.
There is a thin, partial and opportunistic feel to these invocations of sovereignty, however. They form rhetorical embellishments rather than any considered restatements on political community within the UK. The notion of internal market, that formed an explicit basis for British political community in both the 1707 and 1800 Acts of Union, is, for example now treated in a heavily technocrat manner. As Armstrong has noted, little creative thought is given for example to how that market could contribute to political and economic cohesion. For this second notion of sovereignty in UK political and administrative discourse focuses above all on territory and administrative power, with little thought for what a richer notion of a British community of free and equals, and its associated notions of citizenship, mutual recognition and social justice, could require UK decision-makers to address.
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