As the dust begins to settle on the ruptured relationship between the UK and the EU, both sides are continuing to struggle to forge a new and different kind of relationship to the one that existed in the previous 47 years.
A case in point is the way in which the UK had been on a diplomatic collision course with the EU over the Covid-19 pandemic.
The recent success of the vaccine roll-out in the UK, compared with slow progress made across mainland Europe, could be down to several factors, such as foresight of the UK in negotiating multi-billion contracts with pharmaceutical companies early on to ensure there was enough vaccine to go round.
Or perhaps it was because of excellence in scientific and epidemiological research, the army of selfless NHS workers and volunteers that helped to pull the country together, and the legendary efforts of the much-loved Captain Sir Tom Moore.
In truth, it was all these things and much more. But could it also be said to be down to the UK’s newfound self-confidence and asserting its ‘sovereignty’ in the wake of Brexit?
In the run up to the Brexit referendum and the slim majority that tipped the decision in favour of leaving the EU, the question of sovereignty was never far from the news headlines.
For some, the concept of sovereignty was a convenient cloak for the ‘Leave’ campaign to pursue a range of other nationalistic interests, not just leaving the Customs Union and the Single Market, or ‘taking back control’ of borders and territorial waters.
It could be a turning point for moving the UK to a much more economically adventurous, AI and eco-enabled future.
For ‘Remainers’, the talk of ‘taking back control’ and asserting sovereignty by leaving the EU was described by one Tory grandee, Lord Chris Patten, as ‘crap’.
Patten argued that leaving the EU would weaken the UK’s influence over laws and regulations in the world’s biggest digital single market and would decrease its power on the world stage.
Either way, looking back at what was agreed, the Trade and Cooperation Agreement (TCA) was an unprecedented constitutional arrangement. To understand why, we need to take a step back and look at this concept of ‘sovereignty’ in more detail.
The classic theory of sovereignty is that it is unlimited, undivided, and unaccountable to any higher authority. Constitutional theorists like Don Herzog describe these elements as the ‘constitutive criteria of sovereignty’ and in their wake come two commitments – the immense dignity of sovereignty and the command theory of law.
However, the notion that a state can be both a member of the EU and sovereign is not new, and belongs to a school of thought known as constitutional pluralism. Here, two autonomous legal and political systems can interact at a high degree of intensity, making simultaneous claims to ultimate authority (sovereignty) without one being inferior to the other.
Conflicts between two systems, interacting in this way, should be resolved according to ‘radical pluralism’ or principles shared by, or external to, both systems. The thinking here is that the 20th century binary view of ‘realism’ (how things come to be) that defines what the ‘truth’ is has given way to 21st century pluralism where there’s no ‘absolute truth’.
Key to understanding the idea of constitutional pluralism is that the system is organised in a heterarchical rather than hierarchical order; in other words, no one rule, or order, is higher than another – and parties invest in a cooperative rather than competitive relationship to achieve common goals.
Sovereignty and the TCA
This description mirrors the situation brought about by the Withdrawal Agreement and the TCA, and arguably reflects an extension of the political and legal position that existed when the UK was part of the EU.
In a news conference on the outcome of the EU-UK negotiations, held on 24 December 2020, European Commission President Ursula von der Leyen acknowledged that one overriding reason for Brexit was sovereignty.
Von der Leyen volunteered her belief what ‘sovereignty’ meant from an EU perspective, pointing to collective strength, and standing up for each other.
Little could she have known that such words could ring hollow in the wake of the political fallout following the ‘accidental’ triggering Article 16 of the NI Protocol (part of the TCA).
At the end of last year, Boris Johnson made a speech before the debate of the European Union (Future Relationship) Bill that passed the TCA into UK law where he looked forward to a close relationship with the UK’s European neighbours built on friendship, and goodwill. He added that all this could be achieved whilst retaining sovereign control of the UK’s laws and national destiny.
Well, the reset button has been well and truly pressed on that one in the wake of the ‘error’ that Von der Leyen was forced to correct before it threatened to spiral into a major diplomatic incident.
Autonomy and sovereignty of the EU and UK was claimed as victories by both parties with the conclusion of the TCA. However, as the recent Covid-19 vaccine debacle illustrates, the EU continues to watch the UK with suspicion as it exerts its sovereign powers and will need to get more comfortable in this new relationship.
In the end, the TCA negotiations were framed by the EU and not the UK. And although the UK and the EU may now be equally sovereign as they both claim, it doesn’t follow they are necessarily sovereign equals.
By Ardi Kolah, doctoral researcher in Brexit and privacy law, Queen’s University Belfast and founding editor-in-chief, Journal of Data Protection & Privacy. Read the full White Paper ‘What is meant by ‘sovereignty’ and how important was it in influencing the outcome of the Brexit trade negotiations?’ here.