Sir Ivan Rogers’ speech at Policy Scotland on 23 May contains some important thoughts on sovereignty and the Brexit debate.
One key claim is for the necessary qualification of the notion of sovereignty:
‘Those of us who would argue that sovereignty in the 21st century is, in the bulk of fields, an inevitably qualified concept – where it’s not as simple as saying “we have lost/surrendered it and we need to get it back” are, I feel, much better placed than the pure sovereigntists to argue against an EU doctrine of sovereign autonomy being deployed against us as a newly minted “third country”.
You simply cannot, with any honesty or coherence, make an argument for taking back control and full autonomy of decision-making on the UK side of the Channel, and simultaneously argue for the EU27 to restrict to a certain extent its own autonomous decision-making precisely in order to give you, a non-member of the club, a real say in the direction of its policy.’
And his conclusion returns directly to the point:
‘the sooner we realise there are no perfect choices, that there are serious trade-offs between sovereignty and market access interests and that we are best off if we make stone cold sober judgments of where sovereignty at the national level can be real and effective, and where it is purely notional and actually a material loss of control, the better for the UK.’
At one level this is a plea for self-interest and practicality to supervene over theoretical ideas of sovereignty. In other words, realistically, our options and our freedoms are constrained by economic realities, and therefore we should not make decisions based on a theoretical notion of sovereignty; we should not insist on a right to diverge from EU rules when in fact to do so would be an act of self-harm.
Some might however continue to argue for the absolute necessity of parliamentary sovereignty as a critical underpinning of democracy. One can dress this up as a fantasy of little island Britain, or a serious issue of constitutional concern.
This is precisely the argument which Martin Loughlin took on in an important article, in which he distinguished with care the function of sovereignty and the function of government. On Loughlin’s reading, sovereignty arises from historical developments away from the notion of the sovereign through institutionalization and the abandonment of the notion of any divine right to power:
‘Sovereignty came to be understood as an expression of the absolute legal authority of the ruling power in its corporate capacity. This point was implicit in early-modern writing on the State, in which it was acknowledged that although the powers of rule could be divided, sovereignty—the absolute authority of the collective ruling power—could not.’
However, this is entirely distinct from choices to be made regarding government. So Loughlin writes
‘Far from limiting, dividing, or decentralizing sovereignty, the obligations that a State takes on through treaties are manifestations of its sovereign authority.’
This comes close to resolving the apparent divide which might open up between a reading of Rogers’ analysis as based in a set of economic considerations which could be said to be a matter of argument, and a principle of sovereignty, which could be said to be of paramount importance. The UK made and will continue to make sovereign decisions to enter agreements, which limit aspects of its governance but in no sense diminish its sovereignty.
At least one sticking point might be the absence of a possibility of removing oneself from those agreements, but on Loughlin’s reading every state has retained its sovereignty and therefore capacity to remove itself from agreements, if the arguments tend successfully in that direction. And this has a sharp consequence – at no stage did we reduce our sovereignty within the EU. The control we have recovered therefore is not sovereignty. We have decided to make our own rules. The question is then whether or not the rules make more sense across the spectrum of criteria, moral, jurisprudential, economic and so forth, than the ones which applied before.
Loughlin’s argument firmly identifies sovereignty with the state, and one of the reasons for its paradoxical appeal is that it permits the most radical association with a supranational entity to be in the coldly rational interests of the nation-state; in theoretical terms it permits a profoundly realist calculation of power and self-interest to be identical with a radically cosmopolitan reform agenda. William Scheuerman’s reading of Hans Morgenthau shows the leading Realist of his day to have had similar views. This has some interesting consequences.
A Brussels official was recently quoted as saying
‘the EU is a rules based system … because the 28 Member States do not trust each other spontaneously, they trust each other because they work on the basis of agreed common rules with common enforcement, common supervision and under a European court that will make sure they all apply the same rules in the same manner. They trust each other because there remedies available.’
Some have responded that this is simply untrue; but others have argued that this represents in some sense a failure – it is dystopic, a demonstration of realist international theory in practice.
The second argument is the more interesting. It would seem to posit that the European Union is or ought to be at odds with (or better than?) a realist view of the world. That is, in fairness to realism, not an entirely plausible view. The structures of European co-operation were born out of a period of international disorder, and continue to evolve within such conditions. Even if we focus on a more constructivist reading, the European discourse of unity is often embedded in a competing discourse of the fragility of the world-order.
In either case, the notion of the significance of rules in regulating the areas of friction and tension (providing remedies) and also at least attempting to meet the collective interests of citizens is not immediately offensive or dystopic. Where it might provoke a challenge would be in the argument that a system of law is a normative scheme which carries its own authority. Loughlin argues that the divorce of law from the frame of political power is one of the more significant challenges to sovereignty. Ironically, were such a claim to be made for European law, it would probably be close to Morgenthau’ views, who began his career engaging with the ideas of Hans Kelsen on positive law and maintained a concern for the moral underpinning of law and global governance.
It is doubtful that EU legislation lives up to either Kelsen’s or Morgenthau’s hopes. Even those who might wish to see a greater force to supervening concerns of natural law should recognise the significant cognitive challenges for lawyers in escaping what Anthea Roberts outlined in her demonstration of the ‘national’ approaches taken to ‘international law.’ Morgenthau acknowledged that the first steps would be creative institutional mechanisms to funnel and regularize shared regulatory undertakings; following the economist David Mitrany he was looking for a way to break the traditional link between authority and a definite territory. Unlike Mitrany he believed that at some point ‘European sovereignty must be made by an act of will.’ That act of will seems some way off, but insofar as Europe has indeed through its reduction of internal barriers created a partial single territory, so it follows, as Rogers notes, that being inside and outside that territory are radically different.
We are in short a very long way away from a situation in which any European nation has surrendered sovereignty to a universally agreed autonomous normative legal framework. One might argue that the European project is determinedly and openly on a path to greater integration, but as recent events in Greece, Hungary and Italy for instance have shown, it is not a rapid or smooth path. The internal landscape of the European Union is diverse, but it does constitute a special kind of territory.
The upshot is that Rogers’ argument for choosing regulatory alignment over regulatory independence is not necessarily in the end an argument for or against sovereignty, and if Loughlin is right, sovereignty was never at stake, except at some loose emotive level. Those who dislike the rules based community because it is an instantiation of realism, or unequally policed, will find little comfort in what will necessarily be a different kind of rules based community, and one which is founded on diminished trust. Arguably the European Union is at some level an instantiation of a constructivist view, that what matters is the norms, conventions and rules and how ‘we’ view our place in the world. The world ‘just outside the perimeter fence’ as Rogers puts it may feel much more like an uncomfortable neo-realist paradigm.
The strange consequence of the argument which was made for the recovery of sovereignty is that it has so distorted and toxified the concept as to make it more plausible that we will have to redefine sovereignty not in the direction of the pure authority of the state, but as subordinate to the interests of economics. Whether that will maintain the ethic of responsibility which Morgenthau endorsed, or further the hope he expressed that Europe was the obvious place to begin to find new forms of political order beyond the nation-state is currently uncertain.
 Martin Loughlin, ‘Why sovereignty’ In: Rawlings, Richard and Leyland, Peter and Young, Alison, (eds.) Sovereignty and the Law: Domestic, European and International Perspectives, Oxford (2013), pp. 34-49.
 W. E. Scheuerman, Morgenthau, London 2009.
 Quoted by Nick Gutteridge on Twitter.
 O. Jütersonke, Morgenthau, Law and Realism, Cambridge (2010).
 A. Roberts, Is International Law International?, Oxford 2017
 Scheuerman, 130-4.
 Tim Oliver, http://blogs.lse.ac.uk/brexit/2017/03/14/theory-and-brexit-can-theoretical-approaches-help-us-understand-brexit/