Soft Brexit and Parliamentary Sovereignty – sovereign only to be able to give sovereignty away again?

The opinion piece in The Guardian by Stephen Phillips MP has been praised by many as making a good case for the involvement of the House of Commons in the Brexit process. On that point his piece is solid, but on another issue I think he misses the point. I summed it up in this tweet:

This prompted responses from Tom King and David Allen Green, essentially telling me I was wrong:

Let’s try to take this one apart. I’ll start with the relevant paragraphs of Phillips’s piece:

Believing that we should be able to throw out of office the people who make the rules, and knowing from my membership of the European scrutiny committee in the House of Commons that we couldnÔÇÖt, I exercised my own vote in favour of leave […] I persuaded myself that the sovereignty of the parliament in which I sat was more important…

although we would leave the EU, we would remain in the single market to which the manifesto of every major political party at the last election committed us

I see a pretty major contradiction here.

The EU Single Market only works because EU Law is supreme over national law. The rules for what pesticides are used by a farmer in Spain or in Poland are the same – so the crops, once harvested, can then freely and safely be traded right across the EU without further checks. The standards on how an old television has to be manufactured or recycled, likewise – so the same televisions can be brought to market anywhere in the EU. The list goes on and on.

If the UK were to leave the Single Market it could regain control over these sorts of things – set its own rules on pesticides, or decide to allow more heavy metals in the manufacture of a television. But then, in return, these products might not be allowed to be sold in the rest of the EU, and manufacturing to two different standards is costly – hence the economic worries about this sort of out-of-the-Single-Market option.

So then, essentially, all of this seems to boil down to a distinction between a one off sovereign decision, and what you might call everyday sovereignty.

As Tom King further argues, Parliament could take the sovereign decision to bind the UK into the Single Market – only for it by so doing to cede everyday market decisions to the EU once more. That might mean that the UK gains a little bit of sovereignty over the areas that are outside the scope of the Single Market (farm subsidies or fishing quotas for example), but EU Law would remain sovereign over UK national law in all areas relating to the Single Market, and the UK would not regain full control over how laws applying to the UK in those areas were made.

Hence I wonder how much use such a one-off decision would be – it strikes me that such a vote to bind the UK into the Single Market, were it to be taken in, say, 2017, would not be any substantively different to the vote of the Commons in 1972 to agree the European Communities Act that took the UK into the EU. The Commons is, even on that and still to this day, theoretically sovereign – it could repeal the Act and take the UK out of the EU, but in practice it is not sovereign on an everyday basis – because EU law is supreme over national law.

So – to cut this long story short – I see what’s commonly known by now as “Soft Brexit” as being the economically less damaging sort of Brexit, but – from a political point of view – it does very little to restore the sovereignty of the UK Parliament on an everyday basis.

That’s why, in my view, the only thing that is not a loss of sovereignty and is not economically damaging, is actually for the UK to stay in the EU. But give the Hard Brexiteers their due, a hard Brexit at least would be a bit more of a sovereignty gain – but at a considerable economic cost.

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  1. Tom King

  2. Jon

    @Chris P – you’re right of course, and I’ve argued that way in the past about how this applies to the EU institutions. Yet even on his own terms, Phillips’s argument is contradictory!

  3. Chris P

    Agree with your arguments Jon, but you’re missing the fact that at least with EU membership the UK (through its government in the Council and through its MEPs in the EP) had a say and a vote and indeed significant influence over single market rules. Remaining in the single market but leaving the EU means no say and no votes and very little (next to no) influence on the rules. So how Stephen Phillips can square that with his sovereignty arguments is even stranger and more contradictory.

  4. Jon

    @Tom – so, essentially, without saying it explicitly, you seem to see any form of Brexit as diminishing sovereignty. So that means the status quo – in the EU, with sovereignty pooled – is not at all bad then! ­čÖé

  5. Tom King

    Thanks, Jon. I appreciate you taking the time to set this out.

    As I argued in our Twitter exchange, I don’t agree that taking a decision to acquire access to the single market means we are ceding Parliamentary sovereignty; as with the European Communities Act, Parliament could ultimately reverse its own decision and is bound by no other power. Just because something is theoretical doesn’t mean it isn’t actual. Sovereignty in this sense of legal supremacy ultimately remains with the UK Parliament (or, perhaps, via the use of a referendum and a Tory party leadership change that ignores Parliament, the executive).

    However, my own view goes beyond this. To me (and to many others) sovereignty means more than simply the dry legal question of what Parliament can or cannot do. What this really comes down to definitions. John Major dealt with this well, I thought, on the Marr Show during the campaign. The point of pooling sovereignty on certain issues is to enable all participants to wield more power overall. On these terms, Britain’s ‘everyday sovereignty’ – a useful term you used – will be massively diminished even in the circumstances of a Hard Brexit, because the overall relevance of British parliamentary decisions for Britain, Europe and the world will be so diminished.

    So, basically, I disagree with you twice over. ­čśë