The British constitution resettled? Parliamentary sovereignty after the EU Referendum
| Author | Jim McConalogue |
| DOI | 10.1177/1369148118815409 |
| Published date | 01 May 2019 |
| Date | 01 May 2019 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/1369148118815409
The British Journal of Politics and
International Relations
2019, Vol. 21(2) 439 –458
© The Author(s) 2019
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DOI: 10.1177/1369148118815409
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The British constitution
resettled? Parliamentary
sovereignty after the
EU Referendum
Jim McConalogue
Abstract
The evidence from parliamentary and legal processes flowing from the European Union
referendum in June 2016 and the vote to leave – including invoking Article 50 and subsequent
Withdrawal Bill votes, nuancing of party positions in Parliament, adopting parliamentary scrutiny
through ongoing party competition and subsequent legislation – suggests a strong resettling of
Parliament’s sovereignty based on a potentially new, enhanced constitutional settlement. Two
significant precedented, historical constitutional forms, strongly dependent upon Burke’s and
Dicey’s view of government by consent, prove central to the further resettling of parliamentary
sovereignty following the European Union referendum. This approach contrasts with theories
asserting that sovereignty is being challenged by unwieldy executive authority, popular sovereignty,
or democratic nostalgia. When the United Kingdom’s present day, post-1973 constitutional form
is in conflict with a new feature, as in the case of the European Union referendum, a contemporary
resettling of parliamentary sovereignty occurs.
Keywords
Bogdanor, Brexit, British constitution, Burke, constitutional unsettlement, Dicey, parliamentary
sovereignty, referendum
Britain’s past and contemporary constitutional forms help to define the meaning and
unsettling of parliamentary sovereignty. Throughout its history, Britain has experienced
eight historical constitutional forms which explain its rule of parliamentary sovereignty.
The first form, ‘What the Crown-with-magnates enacts is law’ (1200–1350) is divine in
its claim to power and right but held in consultation with magnates (Goldsworthy, 1999;
Kantorowicz, 1957: 153, 155). The second form is ‘What the Crown-with-Commons
enacts is law’ (1350–1532). Fortescue’s (1395–1477) then leading assessment of
England’s dominium politicum et regale observes government as being both political and
regal, signifying the essential character of the Crown needing to rule with Parliament to
Department of Politics and International Studies, The Open University, Milton Keynes, UK
Corresponding author:
Jim McConalogue, Department of Politics and International Studies, The Open University, Walton Hall,
Kents Hill, Milton Keynes MK7 6AA, Buckinghamshire, UK.
Email: jimmcconalogue@btopenworld.com
815409BPI0010.1177/1369148118815409The British Journal of Politics and International RelationsMcConalogue
research-article2019
Original Article
440 The British Journal of Politics and International Relations 21(2)
gain consent (Koenigsberger, 1978, 1989). The third form, ‘What the Crown-through-
Parliament enacts is law’ (1533–1602) confirmed the assumption of legislative sover-
eignty by 1539–1540 (see Goldsworthy, 1999: 55; Keir, 1968: 117) and Parliament’s
omnicompetence – that no area involved in the government of the realm was outside its
authority (Baumer, 1940; Keir, 1968: 135). Fourth, the form ‘What the Crown-with-
disputed Parliament enacts is law’ (1603–1687) reflects the approach of Maitland (1908:
298) whereby in the first half of the 17th century there were three essential but disputed
categories for those who made claims to sovereignty: the Crown, the Crown in Parliament,
and the law (see Pocock, 1987: 124). The fifth form, ‘What the Crown-in-regulating
Parliament enacts is law’ (1688–1689) reflects that since 1689, the monarchy has owed
its title to Parliament and the great constitutional struggles of the 17th century meant that
the royal succession could be regulated by Parliament (Bogdanor, 1997: 43). The sixth
form, ‘What the Crown-in-mixed constitutional Parliament enacts is law’ (1690–1790s)
embodies Montesquieu’s (1989 (1748)) The Spirit of the Laws explaining the English
‘power checks power’ constitution (Bellamy, 1996: 443), in which the executive and the
two branches of the legislature act as checks on one another, but the judicial power and
tribunals of law are subordinate to the legislature (Goldsworthy, 1999; Montesquieu,
1989 [1748]). Seventh, the form ‘What the Crown-in-Parliamentary Cabinet enacts is
law’ (1800–1972) rests upon Bagehot’s constitution in which the Cabinet became the
central institution of British government set within the fusion of legislative and executive
powers (Bagehot, 2001). In the eighth contemporary form, ‘What the Crown-through-
Parliamentary political elite with external bodies enacts is law’ (1973–present), the form
of parliamentary elites ruling through Parliament transforms into the form that govern-
ment rules through Parliament or partially through external agencies or bodies
(McConalogue, 2017). A significant part of the transformation in the present constitu-
tional form helps to explain the decision of the United Kingdom to leave the European
Union (EU) and thereby to resettle its parliamentary sovereignty.
After all, for many, the EU referendum of June 2016 itself (indirectly) and the decision
to leave (directly) were attempts to wrest back control – ‘Vote Leave and take back con-
trol’ was the campaign mantra – over decision-making from EU institutions. Nearly half
of those Leave voters surveyed chose to leave in recognition of the ‘principle that deci-
sions about the UK should be taken in the UK’ (Ashcroft, 2016), affirming a primacy of
government where decisions are taken by UK rather than EU decision-making bodies.
Sovereignty was paramount, expressed as the ability for UK electors to make their own
decisions through their elected Parliament and not have those decisions presented to them
at the EU-level. As many as 60% agreed in one survey that the EU had ‘undermined the
powers of the UK Parliament’ while just 17% disagreed (see Curtice, 2017a: 11). Further
polls found that sovereignty over laws had been the main motivation for 53% of Leave
voters (ComRes, 2016). One significant study found a majority of 51% overall indicated
that they thought EU membership eroded British sovereignty (Clarke et al., 2017: 448).
According to the British Election Study, the vast majority who described sovereignty
(90%) and immigration (88%) as the most important issue voted Leave, compared to only
a small minority (15%) who viewed the economy as the most important (Swales, 2016:
13; see also Prosser et al., 2016). Those voters who therefore believed that Britain would
be better able to control immigration and counter terrorist threats if it were not part of the
EU were more likely to vote to leave (Clarke et al., 2017: 453). On the leave side, ‘… the
EU was seen as irredeemable precisely because it erodes national sovereignty’ (Geddes,
2016: 266). In context, the vote reflected ongoing records and surveys which had long
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