The British constitution resettled : parliamentary sovereignty before and after Brexit
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Bibliographic Information
The British constitution resettled : parliamentary sovereignty before and after Brexit
Palgrave Macmillan, c2020
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Includes bibliographies and index
Description and Table of Contents
Description
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.
Table of Contents
Chapter 1: The impact of EU membership on UK Government and Parliament's sovereignty
1.1 UK membership of the EU1.2 EU membership impact on UK governing competences1.3 The EU challenge to parliamentary sovereignty1.4 A summary and overviewBibliography
Chapter 2: Making sense of sovereignty, parliamentary sovereignty and the 'rule of the recognised helm'2.1 The five principles of the meaning of sovereignty2.2 The meaning of Parliamentary sovereignty: the right to make or unmake any law2.3 The meaning of Parliamentary sovereignty: the 'rule of recognition'2.4 The meaning of Parliamentary sovereignty: the 'rule of recognition' and the contemporary British state2.5 The meaning of Parliamentary sovereignty: the 'rule of recognition'and the common law2.6 Political constitutionalism: returning to the rule of the recognised helmBibliography
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 form3.1.1 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 wheelBibliography
Chapter 4: Parliamentary sovereignty, the precedent of the mixed constitutional model and the UK's membership of the EU4.1 Parliamentary sovereignty and the historical mixed constitution4.2 Parliamentary sovereignty and the contemporary mixed constitution4.3 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 powers4.3.2 Judicialisation of the parliament-sanctioned executive4.3.3 EU cooperation, indirect taxation and the absence of parliamentary consent4.3.4 The rule of the recognised helm preserved?4.3.5 Fracturing executive-legislative relations and opening the door to parliamentary and popular political campaigns4.3.6 Tax-collecting powers diluting mixed government: the role of non Westminster-delegated authority4.4 ConclusionBibliography
Chapter 5: Parliamentary sovereignty, collective representation and EU membership5.1 Parliamentary sovereignty and historical collective representation by Parliament5.2 Parliamentary sovereignty and contemporary collective representation by Parliament5.2.1 The challenge of popular sovereignty approaches to representation5.2.2 The challenge of the traditional party government model5.3 Parliamentary sovereignty, collective representation and EU membership: the case of the Working Time Directive5.3.1 Impacting on the UK's social and employment law and the UK constitution5.3.2 Westminster's collective representation versus neo-corporatist, functional representation5.3.3 Supranationalist representation5.3.4 Representation through constitutionalisation5.3.5 Competitive partisanship and party government5.4 ConclusionBibliography
Chapter 6: Parliamentary sovereignty, the EU free movement of persons and the precedent of fundamental rights provision6.1 Parliamentary sovereignty and historical fundamental rights provision6.2 Parliamentary sovereignty and contemporary fundamental rights provision6.2.1 Constitutional state theory and the entrenchment of codified rights6.2.2 From Treaty- to Convention- to EU-rights: claimable legal rights preceding parliamentary sovereignty6.2.3 Common law constitutionalism and the entrenchment of rights6.2.4 Political constitutionalism: a response to constitutional state theory and common law constitutionalism6.2.5 The shared deferral approach to fundamental rights6.2.6 Democratic parliamentary majorities as guarantors of fundamental rights and parliamentary sovereignty6.3 Parliamentary sovereignty and rights provision under EU membership: the free movement of persons6.3.1 The right to freedom of movement of persons - the qualifications6.3.2 The impact of the EU right to free movement upon the UK's historical fundamental rights scheme6.3.3 The judicialisation of the freedom of movement of persons6.3.4 The non-negotiable right and the 'fencing off' of politics6.3.5 Parliamentary sovereignty and the shared responsibility for rights provision6.3.6 Parliamentary sovereignty, the free movement of persons and the House of Commons majority6.4 ConclusionBibliography
Chapter 7: A Great Resettlement? Parliamentary sovereignty after Brexit7.1 Resettling the historical precedent of ultimate parliamentary decision-making power7.2 The principle of consent: leaving the EU after the 2016 EU referendum7.3 A resettlement of the UK's relationship to the EU?7.4 Parliamentary sovereignty and resettling the contemporary power of Parliament7.4.1 The ultimate decision-making power of Parliament over political decisions7.4.2 Constitutional state theory, common law constitutionalism and the undermining of parliamentary decision-making power7.4.3 Political constitutionalism: addressing the vacuum in explaining parliamentary power7.5 Parliamentary sovereignty and resettling parliamentary power: the principle of leaving the EU after the 2016 EU referendum7.5.1 Securing a 'meaningful vote' for MPs on the withdrawal agreement7.5.2 Parliament voting down and refining the Prime Minister's deal7.5.3 MPs as Motion-making, agenda-shapers: drafting meaningful motions, shaping future direction7.5.4 Parliament holding the Government in contempt and protecting the 'will of parliament'7.5.5 MPs' requesting a delay to Article 50 negotiations7.5.6 Parliament preventing a No Deal Brexit7.6 ConclusionBibliography
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