Why contrasting ideas on sovereignty are feeding distrust between EU and UK

The UK’s cabinet office minister Michael Gove told the House of Commons European Union affairs committee on April 27th that the EU’s behaviour “suggests that they regard the UK not as a fully sovereign independent state but as a state which is in an association agreement-style relationship with the EU”.

In response the EU negotiator Michel Barnier said: “UK negotiators keep repeating that we are negotiating as sovereign equals. The reality is to find the best relationship possible between a market of 66 million and a market of 456 million.”

Their contrasting views on sovereignty bear directly on Northern Ireland and the Republic of Ireland as the UK now resists the EU’s proposal to open an office in Belfast to oversee implementation of the trade protocol which provides for border checks in the Irish Sea. Last year the suggestion was accepted by the UK foreign office.

This is an example of what the EU considers a technical issue being politicised in the UK. Naomi O'Leary of this newspaper quotes Joris Larik of Leiden University: "The Achilles heel of the Northern Ireland protocol is that it relies on the UK to implement it." Sovereignty goes deep into the Brexit and Irish questions because it raises issues of how far the UK can be trusted to adhere to international agreements.

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Interdependency

State sovereignty is an old conundrum because it is constrained by international relations – not least the UK’s 14,000-plus treaties. Theorists and practitioners argue over whether the state is the central factor in international relations or is dethroned by interdependency. Sovereigntists say the state remains crucial, while for post-sovereigntists sovereignty is not unitary, can be shared and may transcend the state.

The Gove-Barnier exchange exemplifies that debate. Barnier’s insistence on a level playing field of labour, technical and environmental standards, and an agreed framework of law to adjudicate disputes, aims to prevent the UK having privileged access to the EU’s larger market where more than 40 per cent of its exports go.

A cardinal feature of the UK politics on Brexit is reversion to an older version of sovereignty at international and domestic levels, compared with that state’s more recent practices of sharing it politically and legally. The trouble is that imperial power underlay its previous self-understandings of sovereignty in both cases, making it used to unilateral, self-interested exercise of its strength. That over-rode trust and invited accusations of perfidy.

The Belfast Agreement relied on trust between the Irish and UK governments to resolve anomalies thrown up by legal ambiguities

The EU pools and shares sovereignty in designated areas by treaty agreement, so the UK’s withdrawal naturally raises the issue of its external sovereign equality. Who then is to enforce agreements which qualify that UK sovereignty? Visceral rejection of any such role for the European Court of Justice by Gove and other Brexiteers further raises suspicions on the EU side that the UK cannot be trusted to implement agreements faithfully on its own.

Similar concerns surround outworkings of the 1998 Belfast Agreement as it is affected by the Brexit negotiations. Reversion to older domestic versions of Westminster sovereignty in UK law and politics puts pressure on this trans-border agreement with the Republic, registered as a treaty with the United Nations. Reversion also challenges the agreement’s status as a quasi-federal, autonomous part of the UK’s changing constitution alongside Scotland’s devolution settlement, expecting their own approval for EU withdrawal.

Creative ambiguity

That claim was tested by the lawyer Gina Miller in the UK supreme court. Its decision in 2017 to reject her case in the name of unfettered Westminster sovereignty of the crown in parliament returned to older versions of central control. Out with it went the creative ambiguity which had sustained differing nationalist and unionist interpretations of the devolution settlements around the UK and Ireland.

The political scientist Brendan O’Leary sees in this the colonial legacy of that legal doctrine in the historical incorporation of Ireland, Wales and Scotland into English rule. In their commentary on the case the constitutional lawyers Chris McCrudden and David Halberstan said it “signals to the EU-27 that any supposedly binding international agreements the UK enters into can be easily ignored by a future parliament, without any domestic judicial remedy”.

The 1998 agreement relied on trust between the Irish and UK governments to resolve the political anomalies thrown up by these legal ambiguities. Much more resilient institutional and legal means are now needed to overcome the distrust created in this turbulent second half of the Brexit game, now being played out in a pandemic these Brexiteers want to exploit and blame.