Sovereignty Fallacies and Brexit “Soundbites”

‘TAKE BACK CONTROL…oh the irony’

Brexit is a case study that turned on a particular notion of sovereignty. The notion that ending the UK’s membership to the EU would “bring back” sovereignty to Parliament and end Brussel’s control over national law. This is a politically-driven fallacy. Due to the propaganda produced by unsavoury political factions, the British people have in large part internalised a fallacious conception of parliamentary sovereignty that is inaccurate and unrealistic, in a legal and constitutional sense. Nationalism and right-wing populism is increasingly entwined with the absolutist notion of sovereignty. An interesting position from a state which – through a control-centred depiction of sovereignty – impeded upon numerous states’ sovereignty for centuries. Colonialism springs to mind. Even so, Theresa May, the Prime Minister, has stated that the Withdrawal Bill (now an Act of Parliament) means the UK ‘will be an independent sovereign nation’. This implies that subject to EU laws, the UK was not sovereign. To leave the EU based on a sentiment of ‘lack of control’ as Catherine Barnard argues, is ‘concerning’ to say the least. A concern not unfounded but rather premised on the belief that Parliament was not sovereign from the UK’s accession of the 1972 European Communities Act (hereafter ECA). Sovereignty has become a language-game on which referendums have been fought and the problem is that the language game has not had entirely accurate rules of reference.

Panopticon Prison in a Rule(less) Language-Game

A Panopticon prison procured through the calculated exercise of sovereignty misconceptions – in a rule(less) language-game. Admittedly, this psychosocial approach to jurisprudence is as seemingly abstract as the promises made by the Leave Campaign. Even so, without trying to detract from discussion, it is not the purpose of this essay to display political bias, rather it must be noted that where major constitutional changes are at risk, accurate rules of reference are crucial. Principally, there are two reasons why Wittgenstein and Foucault’s selected philosophies are helpful tools in the course of discussion. First, viewing law as a language, and viewing language from Wittgenstein’s perspective – as a tool to confer meaning – can help us see that when the context in which a word is used becomes uncertain, so too does the meaning of the word. In our case, parliamentary sovereignty. Second, Foucault’s ‘Panopticon’ inspired by Bentham, in his timeless book Discipline and Punishment can explain how conditioning and control exist (unconsciously) through power mechanisms cable of exerting a considerable amount of influence on a subject. Taken together, Wittgenstein’s language-game and Foucault’s narrative of power technologies fortify the essay’s argument that the electorate may have been tricked into a false conception of parliamentary sovereignty.

The language game is principally a rule-governed activity: ‘defined by rules!’. It is argued that the word ‘sovereignty’ became a forceful political tool and rhetorical weapon, likened – as in Wittgenstein’s example – to tools such as a hammer and nail. A language game can be used to bring about a certain view of reality. Indeed, while ‘sovereignty’ is a politico-legal concept which must be contextualised to confer meaning, parliamentary sovereignty has specific constitutional standing. Yet, during the campaign it came to be synonymous with ‘control’, and ‘loss of’. Arguably conflated with the UK’s external sovereignty. The infectious mantra of ‘take back control’, a narrative in line with the absolutist conception of sovereignty, was shaped by certain political factions. How then, did this come to be internalised by the large majority of the electorate?

The Panopticon is where the watchman sits – at the top of a central tower – overlooking the prisoners below. The electorate do not know they are being watched. While it is the central figure heads (the politicians) that, through decades of Euroscepticism and false interpretations of parliamentary sovereignty, take the seat of the watchmen. As Foucault notes ‘at the heart of all disciplinary systems functions a small penal mechanism’. Indeed, ‘rules backed up by power’, fuels commentators to conclude that Foucault’s Panopticon of power and subsequent internalisation of such, is none other than Austin’s imperative view of law as ‘fear of sanctions’. Yet, despite such parallels, for Foucault, and agreeably, the very mode of operation of the sovereign has become passé. Thus, power may be a better depiction in light of the proliferation of technologies and networks in the midst of globalisation.

Without accurate rules of reference, language-games become nothing more than false narratives. This language-game of propaganda arguably led the electorate to internalise a false conception of Parliamentary sovereignty through panoptic forces the electorate, unaware of the dualist character of the UK as explicated in the following.

Parliament (legally) has Remained Sovereign: A Dualism Game

The relationship between international and national law is generally split. The floor is divided between dualism as developed by Heinrich Triepel and monism developed mainly by Hans Kelsen. Reflected in the prevailing opinion of Völkerrecht und Landesrecht, written before the proliferation of international bodies as discussed below – Triepel considered international law and national law as ‘two circles that may touch but never overlap’. Kelsen, who rejected the presupposition of a global political sovereign for the validity of legal systems, argued instead that unity consists in one chain of authority. Monism, as the label suggests, thinks of international law and national law as a unitary legal system. Placed in a contemporary light, Member States in the EU are either or; monist or dualist.

EU law requires a monist state as a state in which EU law takes effect without the need of a statute, whereas a dualist state must enact legislation. The UK sits in the latter camp, due to its intention to maintain Parliamentary sovereignty from the outset. For individuals to be able to rely on the legal protection afforded by international agreements acceded to by Britain, Parliament must first transpose such provisions into British law. As Gina Miller verifies, it is only through an Act of Parliament that Article 50 can be invoked to ignite the leave process. Without an Act of Parliament EU law does not take effect. Indeed, Britain’s dualism contrasts with France’s monism. For example, France’s monist approach to international law catalyses the French Parliament’s greater openness towards institutional agency in relation to the EU. It must be noted that a Kelsian-like monism is prevalent in most continental European states whereas the UK still assumes hints of Triepel’s dualism. This dualist rationale fortifies the essay’s argument that while Parliament remains influenced by political layering of sovereignty – party to over 14,000 treaties – constitutionally, neither control nor sovereignty was gained after Brexit as it had yet to be lost. Nonetheless, sovereignty (externally) demands a reconceptualisation. 

Admittedly, it is rather a question of how to view sovereignty, for this well- worn concept too often finds itself twisted in a language-game, or at the centre of some politically-motivated narrative. In the words of the then General Secretary Kofi Annan for a state “to hide behind national sovereignty” is increasingly transgressive in the face of globalisation which demands interdependence. Those words are as relevant today as they were then. Even once the UK becomes a “third country” outside the EU, we will continue to be subject to external bodies where the realities of political layering, pooling and sharing subsist. Sovereignty in the UK was neither lost nor gained. When a child tells a lie so often they believe it to be true, that is what has happened in this country, which is by all means not the fault of ‘the people’ but rather those behind the toxic slogan ‘take back control’.

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