The British Constitution Resettled: Parliamentary Sovereignty Before and After Brexit

ISBN-13: 9783030252922 / Angielski / Miękka / 2020 / 291 str.

Jim McConalogue

Spis treści

Chapter 1: The impact of EU membership on UK Government and Parliament’s sovereignty

1.1 UK membership of the EU

1.2 EU membership impact on UK governing competences

1.3 The EU challenge to parliamentary sovereignty

1.4 A summary and overview

Bibliography

Chapter 2: Making sense of sovereignty, parliamentary sovereignty and the ‘rule of the recognised helm’

2.1 The five principles of the meaning of sovereignty

2.2 The meaning of Parliamentary sovereignty: the right to make or unmake any law

2.3 The meaning of Parliamentary sovereignty: the ‘rule of recognition’

2.4 The meaning of Parliamentary sovereignty: the ‘rule of recognition’ and the contemporary British state

2.5 The meaning of Parliamentary sovereignty: the ‘rule of recognition’and the common law

2.6 Political constitutionalism: returning to the rule of the recognised helm

Bibliography

Chapter 3: Eight historical constitutional forms – defining the rule of the present day ‘recognised helm'

3.1 The making of the present: historical transitions in constitutional conventions and form

3.1.1 Constitutional form one: ‘What the Crown-with-magnates enacts is law’ (1200-1350)

3.1.2 Constitutional form two: ‘What the Crown-with-Commons enacts is law’ (1350-1532)

3.1.3 Constitutional form three: ‘What the Crown-through-Parliament enacts is law’ (1533-1602)

3.1.4 Constitutional form four: ‘What the Crown-with-disputed Parliament enacts is law’ (1603-1687)

3.1.5 Constitutional form five: ‘What the Crown-in-regulating Parliament enacts is law’ (1688-1689)

3.1.6 Constitutional form six: ‘What the Crown-in-mixed constitutional Parliament enacts is law’ (1690-1790s)

3.1.7 Constitutional form seven: ‘What the Crown-in-Parliamentary Cabinet enacts is law’ (1800-1972)

3.1.8 Constitutional form eight: ‘What the Crown-through-Parliamentary political elite with external bodies enacts is law’ (1973-present)

3.2 The making of the recognised helm: placing present hands on the wheel

Bibliography

Chapter 4: Parliamentary sovereignty, the precedent of the mixed constitutional model and the UK’s membership of the EU

4.1 Parliamentary sovereignty and the historical mixed constitution

4.2 Parliamentary sovereignty and the contemporary mixed constitution

4.3 Parliamentary sovereignty and the contemporary mixed constitution under EU membership: the case of the Financial Transactions Tax (FTT)

4.3.1 Changing the inter-related pragmatically organised, partial separation of powers

4.3.2 Judicialisation of the parliament-sanctioned executive

4.3.3 EU cooperation, indirect taxation and the absence of parliamentary consent

4.3.4 The rule of the recognised helm preserved?

4.3.5 Fracturing executive-legislative relations and opening the door to parliamentary and popular political campaigns

4.3.6 Tax-collecting powers diluting mixed government: the role of non Westminster-delegated authority

4.4 Conclusion

Bibliography

Chapter 5: Parliamentary sovereignty, collective representation and EU membership

5.1 Parliamentary sovereignty and historical collective representation by Parliament

5.2 Parliamentary sovereignty and contemporary collective representation by Parliament

5.2.1 The challenge of popular sovereignty approaches to representation

5.2.2 The challenge of the traditional party government model

5.3 Parliamentary sovereignty, collective representation and EU membership: the case of the Working Time Directive

5.3.1 Impacting on the UK’s social and employment law and the UK constitution

5.3.2 Westminster’s collective representation versus neo-corporatist, functional representation

5.3.3 Supranationalist representation

5.3.4 Representation through constitutionalisation

5.3.5 Competitive partisanship and party government

5.4 Conclusion

Bibliography

Chapter 6: Parliamentary sovereignty, the EU free movement of persons and the precedent of fundamental rights provision

6.1 Parliamentary sovereignty and historical fundamental rights provision

6.2 Parliamentary sovereignty and contemporary fundamental rights provision

6.2.1 Constitutional state theory and the entrenchment of codified rights

6.2.2 From Treaty- to Convention- to EU-rights: claimable legal rights preceding parliamentary sovereignty

6.2.3 Common law constitutionalism and the entrenchment of rights

6.2.4 Political constitutionalism: a response to constitutional state theory and common law constitutionalism

6.2.5 The shared deferral approach to fundamental rights

6.2.6 Democratic parliamentary majorities as guarantors of fundamental rights and parliamentary sovereignty

6.3 Parliamentary sovereignty and rights provision under EU membership: the free movement of persons

6.3.1 The right to freedom of movement of persons – the qualifications

6.3.2 The impact of the EU right to free movement upon the UK’s historical fundamental rights scheme

6.3.3 The judicialisation of the freedom of movement of persons

6.3.4 The non-negotiable right and the ‘fencing off’ of politics

6.3.5 Parliamentary sovereignty and the shared responsibility for rights provision

6.3.6 Parliamentary sovereignty, the free movement of persons and the House of Commons majority

6.4 Conclusion

Bibliography

Chapter 7: A Great Resettlement? Parliamentary sovereignty after Brexit

7.1 Resettling the historical precedent of ultimate parliamentary decision-making power

7.2 The principle of consent: leaving the EU after the 2016 EU referendum

7.3 A resettlement of the UK’s relationship to the EU?

7.4 Parliamentary sovereignty and resettling the contemporary power of Parliament

7.4.1 The ultimate decision-making power of Parliament over political decisions

7.4.2 Constitutional state theory, common law constitutionalism and the undermining of parliamentary decision-making power

7.4.3 Political constitutionalism: addressing the vacuum in explaining parliamentary power

7.5 Parliamentary sovereignty and resettling parliamentary power: the principle of leaving the EU after the 2016 EU referendum

7.5.1 Securing a ‘meaningful vote’ for MPs on the withdrawal agreement

7.5.2 Parliament voting down and refining the Prime Minister’s deal

7.5.3 MPs as Motion-making, agenda-shapers: drafting meaningful motions, shaping future direction

7.5.4 Parliament holding the Government in contempt and protecting the ‘will of parliament’

7.5.5 MPs’ requesting a delay to Article 50 negotiations

7.5.6 Parliament preventing a No Deal Brexit

7.6 Conclusion

Bibliography

O autorze

Jim McConalogue is a former senior parliamentary advisor to an MP in the House of Commons.

Blurb

‘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.