There were two pieces of news/commentary this week that I found particularly interesting. Both showed that Brexit has little to do with reality and everything with narratives and the discursive construction of reality, in particular through the powerful rhetoric of ‘sovereignty.’
The first one was a short blog entry reporting the findings of a new study on the impact of actual immigration levels on Euroscepticism in European countries. We know that anti-immigration sentiments have a strong impact on Euroscepticism and support for right-wing parties. However, Eddy Yeung’s study suggests that there is a clear disconnect between anti-immigration sentiments and the actual level of immigration in European countries. The actual level of immigration is often misperceived by the population; and it is the perception not the actual level of immigration that drives Euroscepticism. While the post doesn’t distinguish individual countries or consider moderating effects – such as the generosity of the welfare state – the bottom line of these findings is that anti-immigration sentiment and resulting Euroscepticism has little to do with the actual reality. Anti-immigration sentiments are not primarily a rational reaction to objective problems caused by immigration, but depend on people’s subjective perception of the issue.
The second piece of news suggesting a similar disconnect between perception and reality was an article reporting results from a poll that show that among those 77% of the respondents who were aware of the issues around the Northern Ireland Protocol (NIP), 45% are blaming the EU for the problems, compared to 31% who mainly blame the UK side. This is remarkable in several respects. The situation in Northern Ireland is probably the most politically salient Brexit issues of them all. Yet nearly a quarter (23%) of respondents – who were all eligible voters – seem oblivious of the impact Brexit is having on the country. That in itself is somewhat surprising. The high proportion of people blaming the EU for the issues is also remarkable because it seems evident that the UK government has repeatedly acted in violation of its own international commitments and has even openly admitted to being willing to break international law to get out of an agreement it signed less than two years ago. The actions of the UK government are well documented (including on this blog). Yet, a large part of the British public is either not aware of the issues or does not seem to find the UK government’s behaviour problematic, blaming the EU for any issues instead. To me, this indicates once again that we have left the realm of reason a long time ago and are knee-deep in a swamp of nationalist ideology and posturing.
Both news pieces once again underscore the importance of discourse and propaganda in the political battles that have unfolded around Brexit. One rhetorical device sticks out as particularly potent weapon that Brexiteers have successfully used to drive a wedge between reality and perception: namely, ‘sovereignty.’
What do Brexiteers mean by sovereignty?
Many observers – including myself – have often tried to make sense of the government’s approach to Brexit by explaining its disregard for economic realities with it privileging ‘sovereignty’ over anything else. While the British electorate was initially told that there was no trade-off between economic prosperity and ‘taking back control,’ as Brexit reality hits, the discourse has shifted: We are now told not so much that Brexit does not come at an economic cost, but that sovereignty is worth the price we pay. Eight months into real existing Brexit, it starts to become possible to evaluate whether sovereignty was indeed worth the high economic cost of Brexit.
But what does the government actually mean by sovereignty? The dictionary definition of sovereignty – e.g. in the Stanford Encyclopaedia of Philosophy – is to have ‘supreme authority within a territory.’ That sounds like something that Johnson and his fellow Brexiteers would probably wholeheartedly agree with. Yet, as always with complex constitutional matters, the devil is in the detail. This is where a divergence between the modern constitutional understanding of sovereignty and Brexiteer ideology becomes apparent: From a constitutional theory perspective, ‘authority’ is not the same as power, ‘supreme authority’ is not the same as ‘absolute authority,’ and ‘territoriality’ is not the same as autarky. Brexiteers do not make these distinctions.
The average Brexiteer seems to equate authority with the power to do whatever they want and using coercive force if need be. That hints at a very crude understanding of authority as coercive power. Authority, however, is fundamentally a constitutional concept that crucially hinges on the notion of legitimacy. In a modern rule of law state, that legitimacy of power has to be grounded in the law. Needless to say, that Brexiteers do not see any need to be bound by law – be it national or international – as documented abundantly in relation to the referendum campaign, during the negotiations with the EU, and since. The version of sovereignty that Brexiteers seem to privilege, therefore is one where the sovereign is above the law.
Just like authority does not mean unlimited, arbitrary power, supreme authority does not mean absolute authority. Indeed, being the supreme authority in a given territory simply implies that there is no other legitimate instance above it. That is not the same thing as ‘absolute power.’ The difference between supremacy and absoluteness is that the former still recognises limits to the scope of matters over which the holder of sovereignty is sovereign. Thus, the holder of sovereignty can be the ultimate, supreme authority over a given area of social or personal life (say the use of violence), but may not have the same supremacy in other areas (say people’s sex life). Absoluteness, on the other hand, does not recognise any such boundaries and makes a claim to authority over all matters within a given territory. Here too, it seems to me, that Johnson and other Brexiteers have a tendency to at least ignore that difference, but quite possibly to favour the latter conception over the self-limiting one. One indication of this stance is Johnson’s attitude towards Human Rights, which are precisely one way in which the absoluteness of sovereignty has been tamed in modern times.
Finally, the modern conception of sovereignty is a territorial idea, in that it attributes supreme authority within the bounds of a given state. This implies that sovereignty comes with a strong claim of non-interference by other sovereigns in internal matters. Following the atrocities of World War 2, this doctrine has progressively been qualified and the international community has increasingly taken it upon itself to intervene in other states’ internal affairs the name of humanitarian purposes. This new doctrine of humanitarian intervention is not uncontroversial and can be debated. However, the Brexit ideology’s claim for non-interference (e.g. by the European Court of Justice) seems to base on assumptions that massively overestimates the extent to which modern states can be independent and often resemble a wish for autarky.
Overall, then, Johnson and his fellow Brexiteers seem to have a very specific type of sovereignty in mind. This type of sovereignty does not recognise any limitations – legal or otherwise – to the exercise of state power. As such, the Brexiteers’ conception of sovereignty is an extra-legal one, where the definition of sovereignty is precisely that the sovereign is above the law. This absolutist, extra-legal conception of sovereignty is the one that Thomas Hobbes developed in the 17th century in his famous Leviathan in reaction to the unrest of the religious wars. This conception prevailed during the absolutist era of the 17th and 18th century, but was then replaced by a liberal one, where even the sovereign is subjected to the rule of law.
One could argue that Johnson’s, Frost’s and other Brexiteers’ understanding of sovereignty will take us back to the 17th century in constitutional terms. I think it could be worse than that. What they propose is more extreme than what even Hobbes had in mind. Indeed, even for Hobbes there were still some limits to the sovereign’s action. Afterall, 17th century England was still a religious society, and any sovereign was ultimately considered accountable to God and hence bound by some form of ‘natural law.’ That set certain bounds even to the most absolutist ruler. 20th and 21st century ‘sovereigntism ‘ has developed in a more secular society where moralism is actively discouraged and even decried by advocates of purely procedural (as opposed to substantive) and material wealth-orientated rationality. In a society where the ‘good chap’ has become less good, no feeling of moral obligation constrains people in power. Advocating for an unbounded, extra-legal conception of sovereignty in a society that has also largely abolished self-restraint and moral constraints on individual freedom and selfishness would arguably have even more devastating consequences than 17th century absolutism. In fact, the last legal scholar of note who did advocate for an extra-legal concept of sovereignty that places the absolute sovereign above the law, was Carl Schmitt in the 1920s. Schmitt of course, then went on to become the leading legal and constitutional theorist of the Third Reich.
Sovereignty – what for?
The ideological attractiveness of a notion of extra-legal sovereignty to power-hungry people like Johnson is clear. Equally clear is the political importance of sovereignty, thus defined, for the Brexit project: The claim to reassert supreme authority within the territory of the UK is a politically potent idea that can be summarised in a simple and catchy three-word slogan: ‘Taking back control.’ That’s what wins you referendum campaigns and elections.
Yet, the practical and economic usefulness of this type of sovereignty remains elusive. Indeed, it is almost comical to see how the government is struggling to find ways in which it actually wants to use its sovereignty now that it has ‘regained’ it, especially in terms of regulatory autonomy. Since January 2021, the government has charged a high-profile group of conservative politicians with trying to figure out what sort of regulatory reforms could be undertaken. Clearly, the report of that group does not amount to much. Hence the government has hired external consultants to identity possible Brexit benefits. Yet, the real regulatory reforms – or ‘cutting of red tape’ – remain very modest as Chris Grey has argued this week.
This reveals a fundamental flaw in Brexiteer ideology. Brexiteer’s and the right-wing press’s ‘anti-red tape’ discourse is based on the basic assumption that any regulation is one too many, completely ignoring the crucial importance of regulations in the modern world to facilitate trade and safeguard consumers, citizens, and the environment. Regulations may be annoying, cumbersome, and are often certainly far from perfect. But oftentimes they exist for very good reasons.
Moreover, the simple fact is that in a technologically complex and highly interconnected world, exercising one’s regulatory sovereignty potentially comes at a high price. Indeed, it is often in a state’s interest that its rules, regulations, and standards are to some extent aligned with other states. For both these reasons, getting rid of them is often not a great idea.
An excellent illustration of the dilemmas and trade-offs that come with actually exercising one’s regulatory sovereignty is provided by the medical devices industry. Sam Lowe and Derek Hill, brilliantly explain how the UK could use its regained regulatory sovereignty regarding medical devices, but also show in impressive fashion that doing so may have few benefits and come at considerable costs for British citizens and producers of medical devices.
Another lesson from eight months of real existing Brexit is that exercising your regulatory sovereignty means that you are creating more red tape for businesses. A striking example is discussed in Chris Grey’s blog this week and concerns conformity assessment for goods sold in the UK. The UK government has decided to create a whole new bureaucracy to assess the conformity of goods with UK rules, while not actually proposing – for now – to diverge from EU rules. Indeed, from January 1st, 2022, companies who want to sell their products in both the UK and the EU will have to pay twice to have conformity assessed once following the UK CA procedures for the UK market and once following the EU procedure for the EU single market. Most strikingly, this duplication of administrative procedures happens regardless of whether or not the UK actually deviates from EU standards regarding any given product. It is the result of the Johnson government’s obsession to exercise its new-found sovereignty at any cost. Not because it solves any issues with EU standards or because it creates any new opportunities for UK businesses, but simply because sovereignty was the whole point of Brexit – and currently pretty much its only obvious ‘benefit.’
The conformity assessment case does forbade that the ideological nature of the Brexit project and the elusive real benefits of Brexit, may mean that by trying to reassert its sovereignty, the government will exercise its regulatory autonomy and diverge from EU rules simply for the sake of it rather than to achieve any specific benefit. Or as an Institute for Government report aptly puts it: The government “[…] must make a clear case for doing things differently, beyond simply wanting to demonstrate that it can.”
The realisation that Brexit means more, not less, red tape does seem to slowly sink in, not just among news outlets that are critical of the government, but even among government spokes persons who have started using the term ‘Brexit red tape.’ The term now even appears on government web pages. Thus, the text accompanying the consultation on the TIGRR report, announces “Bold proposals to reform and modernise the way regulation and rules are set in the UK to slash Brexit red tape have been unveiled by Ministers today.” Of course, one should not over interpret this interesting change in terminology, but it does provide a refreshing ounce of realism in an otherwise largely reality free governmental discourse.
Perhaps, over time, as the unintended consequences of additional red tape created by sovereignty become undeniable so that even the government has to admit them, there will be room for a more rational approach. This could then open up a myriad of new opportunities to solve some of the many issues with the current post-Brexit arrangements; e.g. alignment on things such as sanitary and phytosanitary standards (SPS), which would very considerably reduce red tape at the borders.
The consequences of sovereignty
While we are waiting for rationality to supplant ideology, we are exposed to the Brexiteers’ sovereignty nostalgia. The Empire nostalgia undertones of the Brexit project have often been pointed out and the veneration of Brexiteers for historical figures (Johnson’s famous adulation of Churchill, Rees-Mogg’s exaltation of the Victorian age) have often drawn ridicule. It has led people to claim Brexit is a project to take the country back to the 1950s, or the 19th century. My analysis of sovereignty would even suggest a return to 17th century absolutism. Of course, that is a crude and exaggerated way of putting it. Still, I do think the dangerous constitutional impact of redefining sovereignty in the way Brexiteers do, should not be underestimated – democracies can and do die. There has already been ample evidence that Johnson unscrupulously disregards the law and the UK’s constitutional traditions when it suits his purpose. Worse still, Brexit Britain is not alone with its sovereignty project and indeed joins an increasingly powerful movement of more or less authoritarian states that seeks to reassert sovereignty at the expense of international cooperation and human rights. As such, Brexiteers share a project with political figures like Russia’s Putin and China’s Xi Jinping who all seek to re-establish an extra-legal, organic version of sovereignty.
Worse still, Hobbes’s extra-legal concept of sovereignty also implies that people permanently transfer and alienate authority to the sovereign, who thus acquires ‘the supreme and inalienable right to rule over the people, independently of them,’ rather than ‘representing the people and being accountable to them’. In the pursuit of his sovereignty project, Johnson may hence betray yet another key Brexit promise, namely, to give power back to the people. Indeed, Johnson’s understanding of sovereignty implies a project of concentration of power in the hands of the government not seen in this country in four hundred years. It is to be hoped that the grip of ideology over reality can be loosened in time for us not to have to relive the painful history of fighting for democracy and human rights.