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Jim McConalogue
The British Constitution Resettled
Jim McConalogue
The British
Constitution Resettled
Parliamentary Sovereignty Before and After Brexit
Jim McConalogue
Rickmansworth, UK
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer
Nature Switzerland AG 2020
This work is subject to copyright. All rights are solely and exclusively licensed by the
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This book is dedicated to the memory of my late father Patrick
and my mother Bernadette for their love, encouragement,
humour and unwavering support.
Preface
vii
viii Preface
to rule with the parliament to gain consent. The third form, ‘What the
Crown-through-Parliament enacts is law’ (1533–1602) confirmed the
assumption of legislative sovereignty by 1539–1540 and Parliament’s
omnicompetence—that no area involved in the government of realm was
outside its authority. Fourth, the form ‘What the Crown-with-disputed
Parliament enacts is law’ (1603–1687) reflect that in the first half of
the seventeenth century, there were three disputed categories for those
who made claims to sovereignty: the Crown; the Crown in Parliament,
and; the law. The fifth form, ‘What the Crown-in-regulating Parliament
enacts is law’ (1688–1689) reflects that since 1689, the great consti-
tutional struggles of the seventeenth century meant that the royal suc-
cession could be regulated by parliament. The sixth form, ‘What the
Crown-in-mixed constitutional Parliament enacts is law’ (1690–1790s)
embodies Montesquieu’s The Spirit of the Laws (1748) explaining the
English ‘power checks power’ constitution in which the executive and
the two branches of the legislative act as checks on one another yet
the judicial power and tribunals of law are subordinate to legislation.
Seventh, the form ‘What the Crown-in-Parliamentary Cabinet enacts
is law’ (1800–1972) rests upon Bagehot’s constitution in which the
Cabinet marks the central institution of British government set within
the fusion of legislative and executive powers. In the eighth contem-
porary form, ‘What the Crown-through-Parliamentary political elite
with external bodies enacts is law’ (1973–present), the form of parlia-
mentary elites ruling through Parliament transforms into the form that
Government rules through Parliament or partially through external
agency or bodies. A significant part of the transformation in the present
constitutional form helps to explain the decision of the UK to leave the
EU and thereby to resettle its parliamentary sovereignty.
The argument is critical of other approaches within strictly legal (neo-
Diceyan), popular sovereigntist and common law paradigms which have
accorded too little significance to the past historical precedents defining
Parliament’s sovereignty and its institutional inter-relationships. By over-
looking historical constitutional forms, the gravity of the impact of EU
membership on the UK constitution has often been misunderstood by
those approaches.
My main contention is that under EU membership, successive gov-
ernments, through Parliaments, have adopted practices which whilst
preserving a fundamental legal and political rule, are at odds with
past constitutional precedents. On the one hand, three key EU case
Preface ix
xi
Contents
xiii
xiv Contents
Index 287
List of Boxes
xv
CHAPTER 1
With those changes, the UK has become less united by the activities of
its multinational state than it was in the past. It has moved from being
the most centralised state in Europe towards a more devolved system
where the other nations of the UK are no longer subordinate to London,
Whitehall and Westminster for their policies (Gamble 2016). Under EU
arrangements, the constitution has potentially shifted away from the tra-
ditional Westminster model, in which ministers in government continue
to lead their Departments through the executive and propose and draft
Government bills for the UK population, with the consent of the House
of Commons. With the Human Rights Act 1998 and the incorporation
of the European Convention on Human Rights into UK law and the
decision to establish a UK Supreme Court in 2009, it has widened the
scope of a judiciary only previously required to give effect to the stat-
utes of Parliament. Inside Westminster, the same two major parties, the
Conservatives and Labour, who were the major parties in 1945, are still
the same major parties (Bogdanor 2011), run along adversarial lines
(King 2015, p. 18). As a subject, Europe split both of the major parties.
For example, the Labour Party, in the 1980s, with a breakaway party of
the Social Democratic Party; and then the Conservatives significantly in
the 1990s (Bogdanor 2019, p. 12). Political events between 2016 and
2019 have highlighted how uneasy a subject it continues to be, including
the holding of the EU Referendum of 2016, the majority vote to ‘Leave’
in that referendum, in addition to the vigorously scrutinised Article 50
negotiations and withdrawal agreement negotiated under Theresa May’s
Conservative-led Government. Britain had long failed and continues to
dispute reconciling itself with being in Europe (Bogdanor 2011), neither
being of Europe, nor run by Europe (Gamble 2016).
accordance only with the UK having shared or pooled those fields of leg-
islative competence in certain policy areas through successive European
treaties. It was to be the “most intimate and intense involvement” of for-
eign governments in the making of governmental decisions (King 2015,
p. 25). In the post-war European political and economic landscape, the
European Coal and Steel Community (ECSC), formed from a Treaty,
possessed supranational characteristics with the objective of creating
interdependence through a common market of coal, coke, iron ore, steel
and scrap so that one country could no longer mobilise its armed forces
without others knowing, which eased tensions after the Second World
War (European Union 2014; Nugent 2006, p. 138). Britain was not
a signatory to the Treaty establishing the ECSC, which was signed by
six countries (France, West Germany, Italy, Belgium, Luxembourg, The
Netherlands) on 18 April 1951. Later in the 1950s, Britain remained
absent from signing the Treaties of Rome on 25 March 1957 with the
objective to set up the European Economic Community (EEC) (and the
European Atomic Energy Community, or Euratom). The EEC marked
an extension of European integration to include general economic coop-
eration—which included the guidelines for establishing a common mar-
ket in manufactured goods and a Common Agricultural Policy (CAP)
(Dedman 2010, p. 82). It embodied a degree of supranationalism in
decision-making (Nugent 2006, p. 47) and again, Britain was not a sig-
natory to the EEC at that point. Britain was in general, opposed to a
continental EEC, particularly through the establishment of supranational
European institutions, and potentially detrimental to her export interests
and undermining her claims of leading Europe (Berger 2013).
The intentional limiting of national sovereignty by Treaty for the pur-
poses of enabling international cooperation was in line with a number of
constitutional provisions set up after the Second World War (Chalmers
2013, p. 5; Kaplan 2018). In spite of Labour and Conservative
Governments having no intention of being part of a supranational
European organisation (Geddes 2013, p. 47), and during the time
of the UK’s original decision not to be part of the Treaty of Rome, it
became recognisable to both Britain’s leaders and people that econom-
ically the European Community was doing far better and being on the
outside while high tariffs were “enormously disadvantageous” (Geddes
2013, p. 56; Wall 2008; King 2007, p. 92). Against the British favoured
intergovernmental regional trade organisation, the European Free Trade
Association (EFTA), the EEC “became the predominant organisation”
(Geddes 2013, p. 53). A further Treaty, the merger Brussels Treaty, was
4 J. McCONALOGUE
Geddes 2013, p. 70; Dedman 2010, pp. 114–115; Wall 2008, p. 49;
Nugent 2006, p. 81). QMV carries with it the implication of a legitimacy
deficit, because national parliaments lose credible power to influence
EU-level decisions if their governments can be outvoted (Auel 2007,
pp. 498–499; Dimitrakopoulos 2001, p. 405). The British view that
the SEA sufficed to ‘complete’ the single market, and that further trea-
ties were not required simply did not prevail in reality (Marshall 2013,
p. 17). Treaty revision subsequently became a “virtual non-stop process
since the mid-1980s” (Dedman 2010, p. 166).
Less than five years later, the Treaty on European Union (TEU),
popularly known as the Maastricht Treaty, was signed on 7 February
1992 and entered into force on 1 November 1993. Its objective was
to prepare for European Economic and Monetary Union (EMU) and
introduce elements of a political union, including political features of cit-
izenship and a common foreign and internal affairs policy. It established
the “European Union” and introduced the co-decision procedure, giv-
ing the European Parliament more say in decision-making (Bux 2017;
Hix and Høyland 2013, p. 172). New forms of cooperation developed
between the UK and other EU governments, for example on defence
and justice and home affairs (Novak 2017; European Union 2014).
The Treaty itself was a milestone on the road to a potential federation
(Gowland et al. 2010, p. 118) and the UK’s political debate over the
Maastricht Treaty demonstrated that popular and parliamentary groups
increasingly contested the Crown and Parliament’s powers assenting to
the competences set out within the European Treaties. Accordingly, the
UK’s Conservative government under John Major secured two signifi-
cant opt-outs on the Maastricht Treaty, including the deferral of a deci-
sion to participate in the final stage of economic and monetary union
(EMU) and on the Social Chapter (Gowland et al. 2010, pp. 103–104).
Later, under Tony Blair’s New Labour government, when the Treaty
of Amsterdam entered into force on 1 May 1999 (Novak 2017), its pur-
pose was to reform the EU institutions in preparation for the arrival of
future member countries. It increased the use of the co-decision vot-
ing procedure. The EU’s absence of appetite for reform at this stage
reflected the reaction to Maastricht and its quest for deeper integration
(Gowland et al. 2010, p. 151). The Treaty of Nice extended QMV to
cover 90% of EU law, with national vetoes remaining only for a small
core of articles (Dedman 2010, p. 173). That Treaty made “sufficient
progress” to enable enlargement to occur in 2004, and 2007, but it was
6 J. McCONALOGUE
clear “even before the ink was dry that a further treaty reform would be
required” (Smith 2012).
The EU had subsequently and painstakingly drafted a Constitutional
Treaty establishing a single text document—a “constitution for
Europe”—in 2004 (Nugent 2006, pp. 120–128) which was signed
but never ratified. That non-ratification was, in part, a consequence of
an increased division which emerged between the European bureau-
cratic elites and citizens over European integration who had no imme-
diate access to an EU with a significant democratic deficit (Haller 2009).
There remained nonetheless a series of momentum-building events in
the search for political legitimacy (Walker 2005). Irrespective of the pop-
ular opposition in the UK to the subsequent Constitutional Treaty “as
a massive step towards the creation of a federal superstate” (Gowland
et al. 2010, p. 172), and the rejection of that Treaty by referendums in
France (55%) and The Netherlands (62%) and the proposed pledge of a
referendum in the UK, the Treaty establishing a Constitution for Europe
was reworked through an “amending” treaty, the Treaty of Lisbon (see
Smith 2012; Reh 2009).
The subsequent Lisbon Treaty was signed on 13 December 2007
with the objective of making the EU more democratic, more efficient
and better able to address global problems. The Lisbon Treaty enhanced
the power of the European Parliament, led to the change of voting
procedures in the Council, provided a permanent president for the
European Council, a new High Representative for Foreign Affairs and
a new EU diplomatic service (European Union 2014; Dedman 2010,
p. 177; Lisbon Treaty 2007). The EU gained ‘legal personality’ under
the Lisbon Treaty, giving it rights under international law to adopt laws
and Treaties. The Lisbon Treaty clarified powers and competences in the
Treaties. It permitted an enhanced role of national parliaments, particu-
larly with reference to an ‘early warning system’, whereby the national
legislatures gained the right to monitor whether initiatives for EU deci-
sions comply with the principle of subsidiarity (Auel and Neuhold 2017;
Neyer 2014, p. 125; Miller 2012; Raunio 2009, p. 318; EU Committee
2008). All the EU Treaties are only effective in the UK by virtue of the
European Communities Act 1972, which is amended by Parliament each
time.
The single market is the EU’s main economic foundation (Pelkmans
2016), enabling the free movement of goods, services, capital and
1 THE IMPACT OF EU MEMBERSHIP ON UK GOVERNMENT … 7
The EU is based on the rule of law, but the rule of law, within the EU,
only exists in so far as member states and the EU acts within the pow-
ers conferred on them by the legally-binding treaties that have been
approved voluntarily and democratically by all EU member states,
including the UK. For example, if a policy area is not cited in a Treaty,
the Commission cannot propose a law in that area, including direct taxa-
tion, health provision in the NHS, defence and welfare. The Treaties set
out supranational EU objectives, rules for EU institutions, how decisions
are made and the relationship between the EU and its member countries.
for goods, and rules on consumer protection, to health and safety leg-
islation, and competition policy. The UK does not operate with the
euro currency and is not a member of the 19-member eurozone area.
By sharing a single currency, those euro area countries must also coordi-
nate their economic and fiscal policies much more closely than other EU
countries such as the UK. Nonetheless, the EU is the largest economy in
the world, although constituting only 7% of the world’s population. The
Common Fisheries Policy (CFP) is the EU’s instrument for managing
viable fisheries and aquaculture. Although mired in controversy for dec-
ades in the UK and which had largely “failed” as the health of fish stocks
and fishing businesses deteriorated as bureaucracy increased, the CFP has
been reformed in recent years.
In terms of the national competences over UK policy, Westminster
does retain control over key areas of government—including direct taxa-
tion, health provision in the NHS, defence, welfare, and other vital areas:
*****
Rakas Ida!
Marie Seebach.»
»Dresden 24 p. Kesäkuuta.
Rakkaat Vanhemmat!
Mitä jälkiä näkyi Marie Seebachin koulusta, kun Ida Aalberg palasi
Suomeen?
»Neiti Aalberg, joka nyt näytti, mitä hän oli taiteessaan edistynyt,
sai vastaanottaa yleisön sulimmat mieltymyksenosoitteet. Kenties
ilmaantui hänen näyttämisessään silloin tällöin ulkomaalaisuutta,
mutta se kyllä haihtuu kylmässä Pohjolassa.» — ‒ ‒
Vilhon arviointi oli sekä epämääräinen että epäselvä. Mitä hän oli
käsittänyt »sanoilla maalaamisella»? Todennäköisesti Ida Aalbergin
äänellistä moduloimiskykyä, joka oli Seebachin koulun tulos.
Lausuntataito epäilemättä oli suomalaisen teatterin useimmilla
jäsenillä sangen alkeellisella kannalla, ja Ida Aalbergin ulkomailta
tuomat voimakkaat korostukset ja detaljeerattu lausunta
hämmästyttivät yksin Vilhoakin, vaikka tämä oli Parisissa nähnyt
semmoisenkin tekniikan mestarin kuin Coquelinin. Sanojen
nielemistä ei voi selittää »sanoilla maalaamisesta» johtuvaksi, ja
turkulainen lehti totesikin »Maantien varrella» esityksen johdosta: