This note on a recent speech by the UK’s chief EU negotiator, David Frost, seeks to tease out the consequences of some of its language on sovereignty. Frost states:
“Some argue that sovereignty is a meaningless construct in the modern world, that what matters is sharing it to gain more influence over others.
So we take the opposite view. We believe sovereignty is meaningful and what it enables us to do is to set our rules for our own benefit.”
The first sentence is quite awkward. Its first clause appears to posit a view that sovereignty has no meaning; it would seem to take aim at the post-sovereignty argument, which was most brilliantly enunciated, specifically in the European context, by Neil MacCormick, who stated that:
‘sovereignty and sovereign states, and the inexorable linkage of law with sovereignty and the state, have been but the passing phenomena of a few centuries, that their passing is by no means regrettable, and that current developments in Europe exhibit the possibility of going beyond all that. On this view, our passing beyond the sovereign state is to be considered a good thing, an entirely welcome development in the history of legal and political ideas.’
This is an argument that vests authority in constitutional and legal solutions to an acknowledged pluralist system; and it is indeed unclear that McCormick’s vision has been successful.
The second half of the sentence then turns the first on its head, by claiming that those who hold this view, hold it because they think that whatever sovereignty is, so far from being meaningless, can be shared to exert greater influence.
Is this perhaps the reference back to Teresa May’s speech in Florence in 2017? May argued that there were two conceptions of sovereignty. The UK emphasised domestic control and local accountability. This was in contrast to the European approach:
‘The profound pooling of sovereignty that is a crucial feature of the European Union permits unprecedentedly deep cooperation, which brings benefits.’
The shift from her description of a principled position which underpins one but not the only beneficial set of outcomes, to the notion that sovereignty is merely instrumentalized in a power move is an interesting recalibration. It fits with Frost’s underlying claim that the UK’s position is better than the EU’s position. This is the pivot to the next sentence, the notion that sovereignty allows one to set one’s own rules.
The opposition is not neat. Both a federal body which sets common rules to gain advantage beyond the federation and a nation-state which sets rules to its own advantage are instrumentalizing a conceptual framework to legitimize advantage.
The claim which would have more clarity is the one which says that national sovereignty trumps federal arrangements in terms of economic gain (with relevant consequences in terms of democratic consent).
My interest is in what sort of sovereignty is being invoked? Is the model the influential one of Tuck’s sleeping sovereign? Here the sovereign must be democratic (the people); government is the day to day running of things, but the fundamental legitimacy is restored via plebiscite.
So one could argue that a plebiscitary decision by the sovereign people in the 2016 referendum set the necessary grounds for political separation, and that entails legislative divergence; the logic is partly economic, and partly political necessity to demonstrate divergence.
This is interesting because it is a Rousseauian position, and about as far from the position of Frost’s invoked hero, Edmund Burke, as you can get. Frost seems to want to claim that Burke differentiates the administrative partnership from the state as object of reverence, but actually his own quote shows that Burke thought the state was both. So the pivot is to say that the UK never reverenced the EU because it was the product of the kind of deracinated thinking that characterised the French Revolution. And here would be a fatal involution; the EU’s sovereignty would seem closer to a revolutionary, plebiscitary sovereignty than Burke’s more cautious representative democracy (and in fact it is neither, but the product of its own post-WWII consensus).
Following Burke’s thought further is interesting. Burke is a far more awkward conservative than sometimes configured. In this section of his Reflections on the French Revolution, he is making a claim for the essential connection of the English state with the religious establishment, within a broader emotional and moral universe; his claim is that English Protestantism is more broadly attuned to both freedom and equality on the one hand and a more beneficial distribution of property on the other, than its contemporary Catholic counterpart. The argument is that the excesses of old French Catholicism and its closeness to royal power contributed to the tearing down of both. I am less interested in this proposition as such, than with what Burke does with it.
As David Bromwich argued, the key to understanding Burke may lie in his breadth of vision, the universality of his moral vision, rather than in any national politics. Burke excoriates precisely the Rousseauian notion of the popular sovereign:
‘where popular authority is absolute and unrestrained, the people have an infinitely greater, because a far better founded, confidence in their own power. They are themselves, in a great measure, their own instruments. They are nearer to their objects. Besides, they are less under responsibility to one of the greatest controlling powers on earth, the sense of fame and estimation. The share of infamy, that is likely to fall to the lot of each individual in public acts, is small indeed; the operation of opinion being in the inverse ratio to the number of those who abuse power. Their own approbation of their own acts has to them the appearance of a public judgment in their favour. A perfect democracy is therefore the most shameless thing in the world.’
And he goes on to say that in contrast to popular democracy, the state as object of reverence takes its place in a much wider, indeed universal and divinely inspired order. In the passage immediately after that which Frost quotes, Burke says:
‘As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born. Each contract of each particular state is but a clause in the great primæval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world, according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures, each in their appointed place. This law is not subject to the will of those, who by an obligation above them, and infinitely superior, are bound to submit their will to that law. The municipal corporations of that universal kingdom are not morally at liberty at their pleasure, and on their speculations of a contingent improvement, wholly to separate and tear asunder the bands of their subordinate community, and to dissolve it into an unsocial, uncivil, unconnected chaos of elementary principles.’
Bromwich would argue, I think, that this universality of view does not mean that Burke was a nationalist, rather that he thought that Britain had the duty to be a better universalist. The potential for a more explicit argument for the UK’s moral and ethical leadership is hinted at, but not explored in Frost’s speech, and perhaps this was neither the time nor place, but his retreat to the claim that local decision-making is better than that conducted at a higher level serves to expose the next paradox.
It seems that the only form of sovereignty that can be made to fit this argument is some form of delegated parliamentary sovereignty, and so we come back to Burke. But quite apart from the stress under which this principle was recently placed, our version of parliamentary sovereignty is by definition a historically contingent system of governance. This takes us back to rules.
Indeed Frost’s speech is, quite correctly in the circumstances, all about how to find a way to accommodate different regulatory systems. Ironically, it is precisely McCormick’s post-sovereignty which gives the best description of how this might work.
McCormick points out that sovereignty is not a zero-sum game. No-one gets my sovereignty if I give up a bit of it. The more we focus on governance, including the processes of parliamentary as opposed to plebiscitary democracy, that is the choices made by local jurisdictions over what we sign up to and what we do not, the more one sees the value of this claim. If we choose to be aligned to someone else’s rules, or to pay the price for divergence, our sovereignty is no less, nor is theirs any greater.
As McCormick insists, as we move further towards the recognition that we are living in an interconnected world, ‘systems as systems of rules, partly overlapping but capable of compatibility, will be recognised. This will depend … on legal and political communities recognising themselves as communities of principle.’
Ultimately, it seems inevitable that we will end with some set of legally binding and enforceable rules, which will require choices and compromises (trade-offs). We will enter a version of McCormick’s legal world, but if we start from sovereignty rather than principle, perhaps not the optimal one. All parliamentary sovereignty tells us is the locus where we decide how to co-operate, not on what basis. The argument then reverts to the definition of ‘our own benefit,’ and we return to a question of principles, not merely economic but social and moral.
Where should we find those principles which McCormick suggests should underpin our systemic communities? Even if Burke’s worldview was a frequently repugnant and fundamentally elitist and paternalistic one, he also appealed to the recognition of a wide set of responsibilities.
In the light of our contemporary broader crises, most of which require a global and collaborative response, parliamentary sovereignty is only an expression of the mechanism of governance. Burke’s ringing phrase that the ends of society are ‘a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born’ would be a more interesting place to start.
 Neil MacCormick, “Beyond the sovereign state.” The Modern Law Review 56.1 (1993): 1-18.
 Richard Tuck, The Sleeping Sovereign: The invention of modern democracy, Cambridge, 2016.
 David Bromwich, The Intellectual Life of Edmund Burke: From the Sublime and Beautiful to American Independence, Harvard 2014. The quotes are all taken from Burke’s Reflections on the French Revolution.