The British Constitution Resettled : Parliamentary Sovereignty Before and After Brexit

'Parliamentary sovereignty is much talked about but rarely defined. In this major study Jim McConalogue examines different meanings of parliamentary sovereignty in changing historical contexts, and explores how leaving the European Union might enable an older view of parliamentary sovereignty to be recovered. An important and timely intervention.' -Andrew Gamble, Professor of Politics, University of Sheffield, UK Adopting a political constitutionalist view of the British constitution, this book critically explores the history of legal and political thought on parliamentary sovereignty in the UK. It argues that EU membership strongly unsettled the historical precedents underpinning UK parliamentary sovereignty. Successive governments adopted practices which, although preserving fundamental legal rules, were at odds with past precedents. The author uses three key EU case studies - the financial transactions tax, freedom of movement of persons, and the working time directive - to illustrate that since 1973 the UK incorporated EU institutions which unsettled those precedents. The book further shows that the parliament's place since the referendum on Brexit in June 2016 and the scrutinising of the terms of the withdrawal agreement constitute an enhanced, new constitutional resettlement, and a realignment of parliament with the historical precedent of consent and its sovereignty Jim McConalogue is a former senior parliamentary advisor to an MP in the House of Commons.-- Provided by publisher Preface 6 Acknowledgements 9 Contents 10 List of Boxes 12 Chapter 1 The Impact of EU Membership on UK Government and Parliament’s Sovereignty 13 1.1 UK Membership of the EU 14 1.2 EU Membership Impact on UK Governing Competences 22 1.3 The EU Challenge to Parliamentary Sovereignty 27 1.4 A Summary and Overview 32 Bibliography 37 Chapter 2 Making Sense of Sovereignty, Parliamentary Sovereignty and the ‘Rule of the Recognised Helm’ 45 2.1 The Five Principles of the Meaning of Sovereignty 47 2.2 The Meaning of Parliamentary Sovereignty: The Right to Make or Unmake Any Law 50 2.3 The Meaning of Parliamentary Sovereignty: The ‘Rule of Recognition’ 54 2.4 The Meaning of Parliamentary Sovereignty: The ‘Rule of Recognition’ and the Contemporary British State 58 2.5 The Meaning of Parliamentary Sovereignty: The ‘Rule of Recognition’ and the Common Law 60 2.6 Political Constitutionalism: Returning to the Rule of the Recognised Helm 65 Bibliography 69 Chapter 3 Eight Historical Constitutional Forms: Defining the Rule of the Present Day ‘Recognised Helm’ 75 3.1 The Making of the Present: Historical Transitions in Constitutional Conventions and Form 81 3.1.1 Constitutional Form One: ‘What the Crown-with-Magnates Enacts Is Law’ (1200–1350) 81 3.1.2 Constitutional Form Two: ‘What the Crown-with-Commons Enacts Is Law’ (1350–1532) 84 3.1.3 Constitutional Form Three: ‘What the Crown-Through-Parliament Enacts Is Law’ (1533–1602) 87 3.1.4 Constitutional Form Four: ‘What the Crown-with-Disputed Parliament Enacts Is Law’ (1603–1687) 90 3.1.5 Constitutional Form Five: ‘What the Crown-in-Regulating Parliament Enacts Is Law’ (1688–1689) 93 3.1.6 Constitutional Form Six: ‘What the Crown-in-Mixed Constitutional Parliament Enacts Is Law’ (1690–1790s) 95 3.1.7 Constitutional Form Seven: ‘What the Crown-in-Parliamentary Cabinet Enacts Is Law’ (1800–1972) 99 3.1.8 Constitutional Form Eight: ‘What the Crown-Through-Parliamentary Political Elite with External Bodies Enacts Is Law’ (1973–Present) 102 3.2 The Making of the Recognised Helm: Placing Present Hands on the Wheel 105 Bibliography 117 Chapter 4 Parliamentary Sovereignty, the Precedent of the Mixed Constitutional Model and the UK’s Membership of the EU 125 4.1 Parliamentary Sovereignty and the Historical Mixed Constitution 127 4.2 Parliamentary Sovereignty and the Contemporary Mixed Constitution 129 4.3 Parliamentary Sovereignty and the Contemporary Mixed Constitution Under EU Membership: The Case of the Financial Transactions Tax (FTT) 138 4.3.1 Changing the Inter-related Pragmatically Organised, Partial Separation of Powers 139 4.3.2 Judicialisation of the Parliament-Sanctioned Executive 141 4.3.3 EU Cooperation, Indirect Taxation and the Absence of Parliamentary Consent 143 4.3.4 The Rule of the Recognised Helm Preserved? 147 4.3.5 Fracturing Executive-Legislative Relations and Opening the Door to Parliamentary and Popular Political Campaigns 149 4.3.6 Tax-Collecting Powers Diluting Mixed Government: The Role of Non Westminster-Delegated Authority 151 4.4 Conclusion 153 Bibliography 155 Chapter 5 Parliamentary Sovereignty, Collective Representation and EU Membership 162 5.1 Parliamentary Sovereignty and Historical Collective Representation by Parliament 164 5.2 Parliamentary Sovereignty and Contemporary Collective Representation by Parliament 166 5.2.1 The Challenge of Popular Sovereignty Approaches to Representation 167 5.2.2 The Challenge of the Traditional Party Government Model 170 5.3 Parliamentary Sovereignty, Collective Representation and EU Membership: The Case of the Working Time Directive 174 5.3.1 Impacting on the UK’s Social and Employment Law and the UK Constitution 175 5.3.2 Westminster’s Collective Representation Versus Neo-Corporatist, Functional Representation 176 5.3.3 Supranationalist Representation 181 5.3.4 Representation Through Constitutionalisation 182 5.3.5 Competitive Partisanship and Party Government 185 5.4 Conclusion 191 Bibliography 192 Chapter 6 Parliamentary Sovereignty, the EU Free Movement of Persons and the Precedent of Fundamental Rights Provision 199 6.1 Parliamentary Sovereignty and Historical Fundamental Rights Provision 201 6.2 Parliamentary Sovereignty and Contemporary Fundamental Rights Provision 203 6.2.1 Constitutional State Theory and the Entrenchment of Codified Rights 205 6.2.2 From Treaty- to Convention- to EU-Rights: Claimable Legal Rights Preceding Parliamentary Sovereignty 207 6.2.3 Common Law Constitutionalism and the Entrenchment of Rights 211 6.2.4 Political Constitutionalism: A Response to Constitutional State Theory and Common Law Constitutionalism 213 6.2.5 The Shared Deferral Approach to Fundamental Rights 216 6.2.6 Democratic Parliamentary Majorities as Guarantors of Fundamental Rights and Parliamentary Sovereignty 218 6.3 Parliamentary Sovereignty and Rights Provision Under EU Membership: The Free Movement of Persons 220 6.3.1 The Right to Freedom of Movement of Persons—The Qualifications 222 6.3.2 The Impact of the EU Right to Free Movement Upon the UK’s Historical Fundamental Rights Scheme 224 6.3.3 The Judicialisation of the Freedom of Movement of Persons 225 6.3.4 The Non-negotiable Right and the ‘Fencing Off’ of Politics 227 6.3.5 Parliamentary Sovereignty and the Shared Responsibility for Rights Provision 228 6.3.6 Parliamentary Sovereignty, the Free Movement of Persons and the House of Commons Majority 231 6.4 Conclusion 233 Bibliography 234 Chapter 7 A Great Resettlement? Parliamentary Sovereignty After Brexit 242 7.1 Resettling the Historical Precedent of Ultimate Parliamentary Decision-Making Power 244 7.2 The Principle of Consent: Leaving the EU After the 2016 EU Referendum 247 7.3 A Resettlement of the UK’s Relationship to the EU? 250 7.4 Parliamentary Sovereignty and Resettling the Contemporary Power of Parliament 252 7.4.1 The Ultimate Decision-Making Power of Parliament over Political Decisions 252 7.4.2 Constitutional State Theory, Common Law Constitutionalism and the Undermining of Parliamentary Decision-Making Power 254 7.4.3 Political Constitutionalism: Addressing the Vacuum in Explaining Parliamentary Power 257 7.5 Parliamentary Sovereignty and Resettling Parliamentary Power: The Principle of Leaving the EU After the 2016 EU Referendum 260 7.5.1 Securing a ‘Meaningful Vote’ for MPs on the Withdrawal Agreement 261 7.5.2 Parliament Voting Down and Refining the Prime Minister’s Deal 263 7.5.3 MPs as Motion-Making, Agenda-Shapers: Drafting Meaningful Motions, Shaping Future Direction 269 7.5.4 Parliament Holding the Government in Contempt and Protecting the ‘Will of Parliament’ 274 7.5.5 MPs’ Requesting a Delay to Article 50 Negotiations 275 7.5.6 Parliament Preventing a No Deal Brexit 276 7.6 Conclusion 277 Bibliography 282 Index 295 La 4e de couverture indique : "Adopting a political constitutionalist view of the British constitution, this book critically explores the history of legal and political thought on parliamentary sovereignty in the UK. It argues that EU membership strongly unsettled the historical precedents underpinning UK parliamentary sovereignty. Successive governments adopted practices which, although preserving fundamental legal rules, were at odds with past precedents. The author uses three key EU case studies - the financial transactions tax, freedom of movement of persons, and the working time directive - to illustrate that since 1973 the UK incorporated EU institutions which unsettled those precedents. The book further shows that the parliament's place since the referendum on Brexit in June 2016 and the scrutinising of the terms of the withdrawal agreement constitute an enhanced, new constitutional resettlement, and a realignment of parliament with the historical precedent of consent and its sovereignty." Front Matter ....Pages i-xv The Impact of EU Membership on UK Government and Parliament’s Sovereignty (Jim McConalogue)....Pages 1-32 Making Sense of Sovereignty, Parliamentary Sovereignty and the ‘Rule of the Recognised Helm’ (Jim McConalogue)....Pages 33-62 Eight Historical Constitutional Forms: Defining the Rule of the Present Day ‘Recognised Helm’ (Jim McConalogue)....Pages 63-112 Parliamentary Sovereignty, the Precedent of the Mixed Constitutional Model and the UK’s Membership of the EU (Jim McConalogue)....Pages 113-149 Parliamentary Sovereignty, Collective Representation and EU Membership (Jim McConalogue)....Pages 151-187 Parliamentary Sovereignty, the EU Free Movement of Persons and the Precedent of Fundamental Rights Provision (Jim McConalogue)....Pages 189-231 A Great Resettlement? Parliamentary Sovereignty After Brexit (Jim McConalogue)....Pages 233-285 Back Matter ....Pages 287-291