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Nosemonkey's EUtopia

In search of a European identity

The European Union and British Sovereignty

UK and EU flagsThe European Union Bill is one of those strange populist beasts announced by the Conservative Party in the run-up to last year’s general election, aimed squarely at keeping Britain’s eurosceptic right from abandoning them for the UK Independence Party (following David Cameron’s admission that he was not planning to hold a referendum on the Lisbon Treaty after it had already entered into force, despite what many eurosceptics had hoped/expected).

In short, this new bill promises to force the government to hold a nationwide referendum on any future transfer of sovereignty from Britain to the European Union – trying to put a referendum lock in place so that no future government could sign the UK up to a treaty like Lisbon (an act that caused much outrage among eurosceptics – not least because all three main parties had promised a referendum on the old European Constitution, on which the Lisbon Treaty was heavily based).

Of course, as no parliament can bind another, all any future British government that wanted to avoid a referendum would have to do is revoke this Act – if the Bill passes into law.

On top of that, the current government has realised that to hold referenda on *every* transfer of power to the EU – no matter how small – would be cripplingly expensive and inefficient, and so has opted to leave it up to ministerial discretion whether or not a transfer of power from Westminster to Brussels is significant enough to warrant a referendum. This, unsurprisingly, has greatly angered many hard eurosceptics.

Cunning Cameron

Yet despite the protestations of the eurosceptics, from British perspective this is actually a very canny move on the part of the current government – because if passed, it will instantly give the UK a far, far stronger bargaining position in the European Council, as well as throughout the rest of the EU as a whole.

The British government doesn’t like something being proposed? Whereas now the Prime Minister risks annoying and alienating his European allies by threatening to use his veto, he would now simply say “Sorry, chaps – we’ll never get it past the public in a referendum.”

By this simple piece of legislation, David Cameron will have effectively managed to have secured Britain’s continued ability to veto any EU legislation she doesn’t like – even in areas governed by Qualified Majority Voting – by creating a new line in the sand that the government can always profess to be out of their hands, thus (in theory) helping to maintain diplomatic relations in a way that would simply be impossible by the use of a ministerially-decided veto.

You’ve got to admire it – it’s very cunning. If just a little bit cowardly…

Constitutional correctives

A good overview of the first reading debate in the House of Commons (which took place on 11th January) can be found over at Connor’s place, with plenty of focus on the proposed amendments by the veteran Tory eurosceptic MP, Bill Cash.

These amendments were – thankfully – soundly defeated, with just 39 MPs voting in favour. As such, they have already become little more than a minor footnote in British/EU political history – but considering Cash’s prominence in eurosceptic circles (he led the Maastricht rebellion against John Major for starters), they can serve as interesting insights into just why (some) eurosceptics are so worried about the EU.

Bill Cash vs the British Constitution

Connor summarises the intentions of Cash’s amendments quite neatly – though his post is worth reading in full for some interesting, thoughtful observations:

these amendments were aimed at creating a version of parliamentary sovereignty that could not be interpreted or challenged by the courts (or, perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty beyond the reach of the courts). Parliamentary sovereignty is the UK legal doctrine that parliament has supreme legislative authority, and its Acts cannot be challenged by the courts – it can do whatever it wants, except limit the power of its successors (i.e. the next elected parliament(s)).

Nice summary – but I have one (important) quibble:

“perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty”

It was sadly not even that.

What Cash was trying to do with his amendments was to revert the idea of parliamentary sovereignty back to one (highly debatable) interpretation of the concept that hasn’t been (even arguably) valid since Edwardian times.

By his own admission, he wanted to push the clock back 40 years to before the passing of the 1972 European Communities Act, through which the UK joined the EEC and accepted the supremacy of European Law (in some areas) over British law.

In reality, he was trying to roll back the clock on the British constitution by the best part of a century – to before the creation of NATO, the WTO, the Council of Europe the UN and more, all of which have (to a greater or lesser extent) curtailed the ability of the House of Commons to do what it likes.

What is Parliament?

Cash also – seemingly deliberately – fails to note that Parliament is not just the House of Commons, as he repeatedly appeared to be stating throughout his speech: It is *both* Houses of Parliament, the Lords as well as the Commons.

In his amendment, Cash appeared to want to establish, by statute, not merely the supremacy of Parliament, but the supremacy of the House of Commons.

By repeatedly attacking “radical judges” and “Common Law interpretations” of the status of parliamentary legislation, he was effectively arguing that nobody is entitled to overrule the House of Commons but the House of Commons itself. (We’ve already gone a long way down that route thanks to the Parliament Acts of 1911 and 1949, which both enable the Commons to overrule the objections of the Lords in certain circumstances – Cash’s proposed amendments, however, would have set a precedent that could easily have gone even further.)

In this, at least, Cash comes closer to the mark than many eurosceptics, who frequently attack “European judges” for forcing Britain to comply with internationally-agreed laws while seemingly not realising that British judges can do much the same thing. Yet you rarely hear anyone openly (as Cash did repeatedly throughout his speech) attack the British judiciary’s right to interpret British law – which is, after all, the whole point of the judiciary…

(As a related aside: It never ceases to amaze me how British critics of non-British systems of law, regulation and government so often fail to follow the age-old maxim of “put your own house in order“. Yes, European Commissioners are unelected – but neither are British Cabinet ministers; yes, many EU laws and regulations enter into force without being scrutinised by elected officials – but so do British statutory instruments; yes, the EU’s accounts have repeatedly failed to be signed off – but neither would the UK’s accounts if they were subject to the same criteria to be passed; yes, it’s arguable that too many powers have been centralised in Brussels – but too many have also been centralised in Westminster; yes, the EU has lots of bureaucrats – but the UK has many, many times more, etc. etc. ad infinitum… Unless your own actions are blatantly better, don’t be surprised if those you are criticising don’t take you too seriously – cf. China’s response to American criticisms of the imprisonment of political prisoners while Guantanamo Bay continues to exist, or Russia’s failure to pay attention to British criticisms of the 2008 invasion of Georgia after Britain’s role in the 2003 invasion of Iraq.)

What is Parliamentary Sovereignty?

Cash also singularly failed to realise that there’s a strong distinction between the idea of *Parliament* being sovereign (as he argues passionately should be the case), and the *actual* case, which is that sovereignty lies with “the Crown in Parliament”.

A seemingly subtle distinction, this, but a vitally important one: Parliament has *never* been sovereign – sovereignty *still* lies with the monarch, even after the Civil War, Glorious Revolution, Bill of Rights, etc. etc..

This is most obviously, if largely symbolically, expressed through the fact that the Queen still has to give the royal assent to all Acts of Parliament before they can become law – Parliament lacks the power to create new laws without the approval of the Sovereign.

This is also strongly indicated in the law courts – if the state prosecutes someone, it is expressed as “Crown vs”, not “Parliament vs”.

Likewise, the government is always “Her Majesty’s government”, and the Prime Minister is still not elected – either by the people or by Parliament – but is *appointed* by the monarch in his/her role as Sovereign. (The last British Prime Minister, Gordon Brown, was frequently attacked by the Tory right for being “unelected”, having succeeded Tony Blair to the post midway through a parliamentary term. But this is not a rare event – Major, Callaghan, Douglas-Home, Macmillan, Eden, Churchill, Chamberlain, Baldwin (twice), Lloyd-George, Asquith and Balfour all became Prime Minister without a general election having been held – and that’s just the 20th century!)

Of course, the monarch no longer directly exercises most of the crown’s executive/sovereign powers, and has – for a good three centuries – mostly allowed the government of the day to run things as it sees fit. It could be argued – and many have – that the monarch’s powers are now merely symbolic, and that in practice the Sovereign is no longer sovereign, having ceded those powers to his/her representatives in Parliament.

But until that convention is actively, openly challenged (as Cash’s amendments arguably sought to do), by the wonderfully obtuse rules of the British constitution nothing has *technically* changed, even though many things may well have changed in practice. And when it comes to points of law, technicalities can often be vital. A new constitutional convention may well have been set by the crown’s failure to veto Parliament since 1708, stating that the right of veto no longer exists (thus meaning that the crown is no longer Sovereign) – but until a monarch tries (and fails) to veto parliament again, we simply won’t know.

Cash the constitutional radical

Needless to say, both of these (significant) misinterpretations of the way the UK works threatened some fundamental alterations of the British constitution when the person who believes those misinterpretations is in a position to attempt to introduce amendments to British statute law – and is eloquent enough to sound convincing.

In other words, while professing to be a constitutional conservative – and quite probably even believing that he is to his core – Bill Cash’s proposed amendments were in fact infinitely more radical than pretty much everything he was proposing them to prevent.

And that’s before we even start on his truly dangerous attempt to exempt Acts of Parliament from judicial scrutiny/interpretation – effectively putting Parliament in the position enjoyed by the monarch prior to the Civil War (a state of legal immunity/infallibility which was in large part responsible for Parliament’s revolt in the first place – the Commons arguing that *no one* should be above the Law, including the Commons themselves).

Add that attack on long-established legal principles on top, and Cash’s amendments would have amounted to one of the most radical revolutions the British constitution has ever seen. Certainly far, far more radical than anything contained in Lisbon *or* Maastricht.

Parliamentary absolutism

Cash was, in short, arguing for the reintroduction of *absolute* sovereignty – albeit absolutism based upon an elected House of Commons rather than an inherited crown.

The reason? Cash holds with what I like to think of as the *nice* (mis)interpretation of the British constitution – the interpretation held by most of the better-educated eurosceptics I’ve talked to. Students of history or political theory will recognise it as the theory of the Social Contract.

This view holds that the people of Britain are ultimately sovereign, having voluntarily ceded power first to the monarchy, then (following the Civil War and, especially, the Glorious Revolution) to Parliament. It holds that today, the people’s election of MPs to parliament shows their willingness to continue to cede power to Parliament, which exercises the people’s sovereign will on their behalf.

Sound familiar? Yep – it’s extremely close to Cash’s interpretation of “the Crown in Parliament”, which holds that the crown has ceded power to Parliament, which exercises the monarch’s sovereign will on their behalf – only this sees sovereignty passing to Parliament from the bottom up, rather from the top down.

Where do the people fit in?

What is particularly interesting is that, despite professing to be pushing for parliamentary sovereignty to be entrenched, at no point did Cash call for the concept that the people are sovereign to be entrenched – despite using the Social Contract theories about the people’s sovereignty to justify his claims about the sovereignty of Parliament. Cash was not interested in returning power to the people, but to the politicians.

Proponents of the Social Contract theory of the British constitution frequently – while being extremely well intentioned – fail to acknowledge that the Social Contract is not, nor ever has been, an actual document. Nor did the idea of the Social Contract precede the supposed initial transfer of power from the people to the monarch – nor, indeed, from the monarch to an elected government.

The Social Contract was, and always has been, an attempt to justify rebellion, or the right to revolt. Its history tells you all you need to know: First developed by Grotius in the Dutch Republic in the early 17th century following the Dutch Revolt, then developed by Hobbes (partially accidentally) following the British Civil Wars, then by Locke in Britain following the Glorious Revolution, then by Rousseau during the rising discontent of the absolutist reign of Louis XV of France – with Rousseau’s ideas and justifications later being adopted by the leaders of the French Revolution who brought Louis to the guillotine.

The Social Contract has never been the basis of government – as much as its proponents have always wanted it to – it has only ever been an excuse for usurpation.

What is sovereignty?

What *actually* grants the right to govern is simple and obvious: It is the ability to govern. That’s it.

I could publish a statement tomorrow declaring myself to be Emperor of Europe, announcing a broad range of new laws, and demand tribute from every single person in the EU. Would it mean anything? No – because I don’t have the ability to enforce those laws or the payment of that tribute.

Likewise, does an assertion that Parliament, rather than the EU, is sovereign change anything if Parliament is unable to alter EU legislation?

And here lies the rub: The sole purpose of EU legislation and regulations is intended to be to harmonise systems across the EU. If Britain were to assert her independence by rejecting more and more aspects of EU legislation and regulations, Britain would increasingly become out of synch with the rest of the EU.

A few opt-outs? Not a problem – and Britain already has quite a few (most notably on joining the Euro). But a systematic rejection of any further harmonisation – as the hardline Tory eurosceptics want? This would effectively be a declaration that Britain will no longer be participating in the EU.

Because as much as Britain may be able to claim sovereignty within her own borders, to assert her will in France, in Slovakia, in Denmark, in Finland, or in Spain would be to claim sovereignty over *those* countries as well.

By threatening to reject any further EU integration in the name of British sovereignty while still professing a desire to remain a member of the EU, Britain would be restricting the sovereignty of every other EU member state – much as the UK is *already* restricting the sovereignty of Ireland by refusing to join the Schengen Zone (which in turn has prevented Ireland from joining due to the British ultimatum: Schengen or the Common Travel Zone?)

Thanks to the very nature of the EU’s aim of harmonising European economies, a pick and mix approach such as that proposed by the (non-withdrawalist) proponents of the European Union Bill is going to be extremely difficult to put into place – and I say that as a long-time advocate of a multi-tier EU.

You cannot maintain the Common Market without common rules and regulations – which apply to all. No one should be above the law.

Does this mean that Britain’s sovereignty has been limited by EU membership?

Yes and no. Let’s use the idea of the Social Contract to explain why, as so many who argue for more British sovereignty seem to like it so much:

According to Social Contract theory, way back in the mists of time, the people ceded their sovereignty to the monarchy because they realised the advantages the protection of the monarch could bring – this despite the downsides of now having to pay tribute, serve in the militia and so on.

Later on, that sovereignty passed to Parliament because Parliament could bring even more benefits than the monarch – better laws, better regulations. More restrictions again – taxes have gone up repeatedly since Parliament took charge – but the advantages were seen to outweigh the disadvantages. If they weren’t, then the British parliamentary system of democracy would not have survived, and we would have either reverted to monarchy – as we did in 1660 after the failure of the Cromwellian republic – or come up with something better.

Indeed, the whole point of democracy is that we are *constantly* trying to come up with something better – that’s why we have new minor laws and regulations enacted every day, and change governments every few years to allow new ideas to be tested.

Now, in turn, the governments of nation states (to whom the people have ceded their sovereignty) have come to see the advantages of, in turn, passing some of *their* sovereignty to even higher bodies, which can transcend national boundaries to provide greater advantages to all. This is not just apparent in the EU, but also in NATO, the UN, the WTO, the African Union, ASEAN (in South East Asia), CARICOM (in the Caribbean), SICA (in Central America), CCASG (in the Middle East), EAEC (in Central Asia), SAARC (in South Asia), UNASUR (in Latin America), and countless other bodies – even the federal United States of America itself counts, albeit a couple of centuries earlier.

Yes – I’m adopting a teleological approach *and* the Social Contract (both of which I despise as ahistorical nonsense) to argue that passing sovereignty to a level above the national is a natural next step in society’s evolution.

More seriously, I’m arguing that the advantages of EU membership far outweigh the advantages of withdrawal. That, while we could leave – just as we could go back to absolute monarchy – it is not in our interests to do so.

British sovereignty and the EU

But – and this is crucial – Britain retains the right to reclaim the sovereignty she has pooled at EU (or UN, or NATO, or WTO, or whatever) level any time she likes. As former Foreign Secretary Malcolm Rifkind succinctly put it in the European Union Bill debate:

“is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.”

If Britain doesn’t like it, she’s still free to leave any and all of her international treaty obligations. She’s also free to try to persuade other countries to leave with her, or to set up her own alternatives (as she did with EFTA back in 1960, having missed the boat with the initial launch of the EEC).

Britain’s ability reclaim *total* independence and sovereignty is not constrained in the slightest by EU membership, or by membership of NATO, the UN, the WTO, or whatever. We can go the way of North Korea any time we like – principles of self-determination are firmly entrenched in international law.

But what Britain *can’t* do is guarantee that *other* countries will be happy to play along in the way that Britain wants if Britain decides to throw her toys out of the pram.

What Britain also can’t do is expect other countries to always agree with her. We can’t be members of just the kind of European Union that we would like it to be – we can only be members of the EU that we’ve got (created by compromise and slow evolution over 60-odd years of negotiations between more than two dozen countries), while continuing to try to convince everyone else that our ideas are worth adopting.

There is no possibility – no matter how much many may want it – of Britain simply being a member of the Common Market without any of the EU rules and regulations that are now an intrinsic part of that Common Market. This is no more possible than me owning a pet Dodo. We missed our chance.

And if she knows what’s good for her, what Britain *shouldn’t* do – within the current EU set-up – is attempt to impose her will on other EU member states through the threat of veto or referendum.

Use vetoes and referendums to protect her own interests? By all means. But not to force others to comply with her wishes in ways that will negatively affect them.

If Britain wants to remain a member of the EU but in doing so prevents further European integration from happening, she will be destroying the EU – forcing it to stay as something Britain wants, not what other EU member states may want. And this not by negotiation, but by an obstinate, childish refusal to either compromise or have the decency to leave and let others get on with it. It’d be the diplomatic equivalent of puncturing the football the other children are playing with because no one wants to play cricket with you.

In short, my fear is that in attempting to assert British sovereignty, the European Union Bill threatens to undermine the freedoms – the sovereignty – of other EU member states, in the process building resentment against Britain that would only serve to undermine British interests.

50 Comments

  1. You’re mistaken on what “the Queen in Parliament” means. It means that sovereignty, and the power to legislate is exercised by the Queen in Parliament, which is the system of Parliament passing the legislation, and the Queen concurring in it by granting assent.

    On the point of whether the Queen could withhold consent, I would say that no constitutional convention is possible, because (a) the matter is regulated by statute: there are provisions for consent to be granted automatically; and (b) when consent is not automatic, consent doesn’t happen until the Queen allows consent to be given, and she does actually sometimes delay that because she’s busy enjoying being Queen.

    Parliament is above the law. You’re wrong on this. This is why the Commons bar isn’t licenced.

    Finally, it’s not clear that Parliament can amend the rule of Parliamentary supremacy (as opposed to changing the operation of Parliament). It depends on whether you believe it to be a mere rule of the common law, or something more fundamental.

    • Cheers for the feedback, Marcin. Genuinely appreciated.

      On your first comment’s point re: the Crown in Parliament – as I say, it could be argued that the Crown’s role is now largely symbolic. And you’re right, there are systems in place. But re: the witholding of consent again, as I say – until a monarch tries, we won’t know for sure.

      Re: the Commons bar license – I thought that was due to the Palace of Westminster being a royal palace, and therefore exempt thanks to royal prerogative, rather than due to parliamentary privilege? I may well be wrong, of course.

      • Just because the issue hasn’t fallen for decision yet, doesn’t mean we are in a world of absolute legal ignorance. Legal scholars have spent a considerable amount of time thinking about these issues, and it is possible to take a considered view on this issue. Just because there are two positions, it doesn’t mean we can’t choose between them, or that the truth somehow lies in the middle.

        • Absolutely no doubt. And I don’t deny that *in practice* Parliament is sovereign. Nor that, due to the way these things work, that quite possibly does mean that it is sovereign in actuality. I only really intend to state that, as you note, it’s a lot more complicated (and concerning) than Cash made out.

          At the same time, your point about Parliament being above the law (in your first comment) is indeed correct, as Parliament can change/remove any laws it doesn’t like. This simple fact is one of the primary reasons I’m in favour of supranational powers being able to overrule the British government: http://www.jcm.org.uk/blog/2005/02/sovereignty/

  2. Also, it seems that you are unaware that it is a standard view that Parliament could, by clear words, legislate contrary to EU law, without need to leave the EU.

    • On on this comment – yes, Parliament can definitely legislate contrary to EU law. I should have had an extra paragraph in there.

      Of course, if it did, it would be subject to fines/other punishment imposed by the EU – which Parliament may well judge are worth it to pass the law. Or, of course, could just ignore – hoping the EU would back down.

  3. A very well written analysis piece, a pleasure to read as always.

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  5. Pinnochio said “By this simple piece of legislation, David Cameron will have effectively managed to have secured Britain’s continued ability to veto any EU legislation she doesn’t like – even in areas governed by Qualified Majority Voting…”

    Pure rubbish which underlines how little you know about the EU…

    The fact is that for any state that is a member of the EU, EU law is the supreme law of the land, and can be imposed on states that disagree and vote against such law but are outvoted under QMV. Those states are then obliged by the terms of the EU treaties to remove all conflicting national legislation and refrain from legislating contrary to said EU law (even though they never agreed to it in the first place), and must never again (so long as they remain in the EU) legislate contrary to said EU law at any time in the future even if their voters elect a new government to do just that. The ‘sovereign’ is therefore the institutions which create that supreme EU law, which is the EU institutions themselves.

    You quote Malcolm Rifkind’s disingenuous argument that a state remains sovereign because it can leave the EU to reassert it’s sovereignty. But since you are not proposing any state do leave the EU, you are in truth defending a situation where the EU law-making institutions are sovereign in all states which remain members of the EU.

    Furthermore you are wrong to suggest that this situation is similar to membership of other international organisations (you reference the WTO and UN). None of those other international organisations has its own law superior to national law, nor their
    own law-making institutions that can create such superior law and impose it on member-states that disagree with it. Only the EU had those characteristics in politically-salient policy areas, which is why it is uniquely unacceptable.

    • You seem to have missed the point about sovereinty – you’re only sovereign over someone if you can impose your will on them. I cover this in the “What is sovereignty?” section.

      Yes, EU law supercedes UK law in some areas. I’m obviously not denying that.

      But the UK doesn’t *have* to abide by them. It only has to abide by them if it wants to continue to enjoy EU membership. If the EU imposes fines on the UK for failing to comply, the UK can ignore them – and quite probably get away with it (France has done similar on numerous occasions).

      The threat of fines is the sole extent of the EU’s sovereignty. The EU has no criminal jurisdiction. It cannot imprison or execute any one of us. It has no power except the power we are willling to give it.

      Re: NATO, the UN, the WTO, etc. – you appear to be rather sharly focused on the law. In practice, UN membership (in theory) holds the British government to abide by certain agreed international laws – including on human rights; NATO membership can – in theory – force the UK to go to war; WTO membership means that the British government must abide by countless international trade regulations and agreements in pretty much exactly the same way that EU membership does.

      Laws? No. Regulations? Yes. Does the difference between the two matter that much? It shouldn’t do – not if you take the position that foreigners should have no say in the running of the UK.

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  8. You’re right about the Social Contract; it’s not an actual contract and the people haven’t actually ceded sovereignty to anyone. But that doesn’t make it fundamentally untrue, it just means that no government in recent history has been fully legitimate, they’ve all been usurpers with varying degrees of support by the people. That’s the idealist view, which I like better than the realist view that he who holds the power is the (de-facto) sovereign.

    This idealist view (which I hold to be the only legitimate version of sovereignty, regardless of reality) is a helpful way to think about sovereignty, because it will always remind you who are (or should be) actually in charge of things: the people. Just like the fact that every man is fundamentally a free individual unconstrained by everything except that he can’t constrain another individual’s freedom. Which is actually the very same idea as the Social Contract, with the state being the entity that a group of people have agreed to lend some of their sovereignty to. Furthermore, that state can lend some of its sovereignty to a federal entity, but in a federation the state is always sovereign (it wouldn’t be a state otherwise) just like in a state the individuals (citizens) are always sovereign.

    This is how I see myself as a citizen of the state. It brings me clarity when thinking about the relationship between me and the state and courage to stand up against it because I know what rights I’ve given away or not. I, along with every other citizen, own the state, not the other way around.

    To be more on topic, I suspect that “Euroskeptics” don’t understand or subscribe to this view of sovereignty and confuse it with independence (of the state, or even the nation, which is not the same). The United Kingdom is and always has been sovereign; the day it stops being sovereign it stops being a state.

    • Also worth bearing in mind is that there is a strong libertarian streak to much British right-wing euroscepticism – they tend to subscribe to the view that individual liberty is paramount, based on a hardcore interpretation of aspects of Mill’s philosophy. In turn, this means they object to too much power/sovereignty being held at what they consider to be a level too far removed from the people – be that EU, national, county, or whatever.

      I tend to subscribe to a very similar individualist, localist take on where power should be pooled, as I argued here: http://www.jcm.org.uk/blog/2010/01/the-libertarian-case-for-european-integration/

      But as to the legal understanding of the rights of the individual? With sovereignty vested not with the people but with Parliament (or the Crown in Parliament), and with Parliament able to rescind any laws it likes, in Britain the people have *no* fundamental rights. Not even the right to life – Parliament can legislate on anything it likes.

      And this simple, terrifying fact is one of the major reasons why I see the existence of supranational bodies as being a step in the right direction: Until the British people had recourse to the European Court of Human Rights, for example, their last hope if they were in dispute with the government was to approach the House of Lords (in its then position as the highest court in the land) – headed up by a member of that self-same government (in the person of the Lord Chancellor). Little better than totalitarianism – albeit with a fluffier face.

      • If one accepts the fundamental, natural law that individuals and the people making up a state are sovereign, the UK parliament is in fact not sovereign. Though you qualify your statement with the term legal, which I take to mean according to the supreme lawmaker, which is the parliament. Parliament is thus de-facto, according to itself, illegitimately sovereign but not de-jure (according to the imagined fundamental law). Although the people are sovereign, there is no way for them to take it back from the parliament other than through revolution.

        This is indeed a scary thought, but I don’t think supranational bodies are the right solution (may be a step in the right direction, as you say). The right solution is for the people to agree on a basic contract forming the state (a constitution) which states their sovereignty and fundamental rights explicitly and cedes some of this to a parliament.

        I may have gotten some parts wrong about the UK constitutional foundations (or lack of), as I don’t know much about it.

        As for the libertarian skeptics, I’m not so sure of their commitment to that ideology. Like their right-wing comrades in the US, they have consistently shown a lack of will to put their money where their loud mouths are. True “libertarians” are hard to come by.

  9. Pinnochio: Either you don’t know what you are talking about, or you are being dishonest. Which is it?

    EU law does not ‘supercede UK law in some areas’. It ranks higher in the legal hierarchy than UK law, such that all of it supercedes the law of the UK and that of all other member-states. It is not voluntarily, including for the French who have elected two presidents on a manifesto mandate to reduce VAT on restaurant bills for example, which neither was able to implement because of an EU law on the minimum rate of VAT agreed nearly two decades ago by politicians now out of office or dead. Play wordgames if you like about ‘regulations’ but it does not alter the fact that this is law superior to any other in all states for as long as they remain members of the EU, which can be decided by QMV and imposed on dissenting nations which either never voted for it in the first place, or where one past government might have agreed, but the electorate is now trapped and condemmed to live under in perpetuity with no ability to ever elect a new government able to change that law. As time progresses, more and more of this ossified EU law builds up, shrinking the remaining area in which democratic law can still exist, and with it shrinking the power of your vote to change the laws you live under towards vanishing point. One can debate how long it will take to reach that point, but not that we are heading towards it under the EU as presently constituted.

    You are also very deeply mistaken about other international organisations and the profound differences between them and the EU which makes the others acceptable and the EU intolerable. Your belief that NATO can force the UK to go to war is pure drivel. For a start, NATO uses decision-making by unanimity (the only method compatible with democracy at international level, and the method used by all international organisations except the EU that take serious decisions binding on their members) such that each nation has a veto. And secondly NATO Treaty Article 4 only binds its members to taking “such action as it deems necessary”, a form of words specifically designed to preserve the war-making power of the US Congress and other democratic national parliaments. There is no question of any NATO member being forced into war through losing in a qualified majority vote!

    It never ceases to amaze me that EU supporters know so little about what they are talk about! But then if you did understand the facts about the EU, you could not support the EU any more. That is why either ignorance or disensgenuity are pre-requisite for being an EU supporter.

    • You now appear to be arguing on points on which I’ve agreed with you, while adding yet more decidedly strange legal interpretations on top.

      One simple question:

      1) How, precisely, do you think the EU forces member states to abide by EU law?

    • Quite. Except that NATO isn’t exactly a shining example of international cooperation, is it? Members consistently fail to spend the benchmark 2% of GDP on defence – with the result that NATO is essentially the US armed forces by another name. Nor is the situation improving, as members are now cutting defence budgets to cope with the fallout from the financial crisis.

      Which is why Anglo-French defence cooperation makes such perfect sense. Except, of course, it’s seen as a violation of British sovereignty. Bugger. The problem with sovereignty is that reality so often gets in the way. How much sovereignty did Belgium have in 1940?

    • @Freeborn-John: Either you don’t know what you are talking about, or you are being dishonest. Which is it?

      Your first paragraph regarding hierarchy is very unclear. I think everyone is in agreement that EU law, which exists only in EU competencies, are above national law. However, you then implicitly make a distinction between EU law and “democratic law” ([..]more and more of this ossified EU law builds up, shrinking the remaining area in which democratic law can still exist[..]) without any supporting argument for that. EU law is decided in through the processes of the European Union by agreement on the laws by the Commission, the Parliament and the Council according to the procedures in the treaties. Nothing undemocratic about it, just another process than used in the UK (which is another process than Finland, which is another process than Spain). EU does not mean fewer democratic laws, just a larger area where Rule of Law works and new ways of making the laws. The French presidents you mention could have changed the VAT in France, simply by convincing his colleagues in the proper venues.

      In the second paragraph you state that the differences between the EU and other international organisations make the EU intolerable and the others tolerable. It’s quite the opposite. In the EU people actually have (although a minimum) of say while in the other organisations only their elected representatives have a say. The big difference is that in most organisations the individuals are irrelevant. They are not agents, they have no rights and no obligations. In the European Union the EU citizen have rights regardless of their national representatives, in the same way they have rights regardless of their counties or other lower administrative regions. Most fundamentally these citizens of the European Union have the right to elect representatives to European Parliament regardless of the position of their national representatives, in the same way elections to the national parliament is not qualified by council or county elections. I grant you that it is a flawed (but still democratic) system, as the individuals are represented both through direct elections and through their national representatives. These national representatives are elected primarily not for their European agenda.

      Also, you claim that the only acceptable way to make binding decisions in international organisations is with unanimity, which is not the case in for example the United Nations Security Council (their decisions are binding).

      It never ceasesa to amaze me that EU detractors know so little about what they are talk about! But then if you did understand the facts about the EU, you would support the EU. That is why either ignorance or disensgenuity are pre-requisite for being an EU detractor. :)

  10. That’s just poopycock. All civilised states do in practice honour the terms of the international treaties they have entered into, and have done so for centuries. All that is different about the EU treaty is that it established an additional tier of law in the legal hierarchy of its member-states, together with EU law-making institutuons, which member-states must adhere to whether they agreed with the creation of those specific EU laws or not. Any member-state state of the European Union that decided it would selectively adide by some EU laws and not others would be in breach of the terms of the EU treaties and would find itself brought up before the International Court in The Hague.

    http://en.wikipedia.org/wiki/International_Court_of_Justice

    In suggesting that EU law is voluntary you are just repeatedly underlining that you do not undestand what you are talking about. Why did you right this piece about EU Law and national sovereignty when you don’t understand the subject?

  11. No – i mean what i said. The International Court resolves disputes between nations in international law, i.e. one state not honoring the terms of an international treaty that it has agreed with others. Were a member-state of the EU not to implement some secondary EU legislation (i.e. laws produced by the EU institutions that bind its member-states) that state would be in breach of the EU treaty, which is an international treaty desposited at the UN, and it would ultimately be brought up before the International Court for non-compliance.

    The European Court of Justice’s primary responsability is to interpret EU (secondary) EU law in cases where there is doubt or dispute as to what that law means. EU law is ultimately whatever the ECJ says it is. The Commission may initiate proceedings and whatever penalities are laid our in the EU treaties on a state that is not adhering to the EU law as interpreted by the ECJ. But your previous question was what would happen were a member-state of the EU to disregard those EU laws it does not like, and ignore the EU institutions (including ECJ and Commission) when they try to make it obey. In that case the state would end up in breach of the EU treaty itself, and ultimately be brought up before the International Court until it either returned to compliance or left the EU.

    International law is the law, and the internatinal law that is the EU treaty says its member states must obey the secondary EU legislation produced by Brussels/Strasbourg institutions under the terms of the EU treaty, including that law which they voted against but could not block under QMV. The EU law-making institutions which produce this superior body of law are therefore the de-facto supreme power (sovereign) in the land for any state that remains in the EU.

    —-
    “there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate” John Locke

    • OK, I’ll give you this much, it’s an interesting theory…

      But it still doesn’t answer the question of what would happen if the UK *still* refused to comply. You’ve skipped over the EU’s internal processes and imagined a scenario where Brussels goes crying to mummy (in the shape of the UN). All well and good. But what’s the UN going to do to force Britain to do what the EU wants?

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  13. @Freeborn Jon – You’re right that EU law has (in theory) legal supremacy over UK law. However, it’s not just EU law – international law also has (again, in theory) supremacy over national law. Indeed, international law has supremacy over EU law (the principle of jus cogens, for example, binds the EU as it does any international actor).

    What Nosemonkey seems to be pointing out is that, in practice, that’s not how it works. You, on the other hand, are focusing on how it should work in theory. In theory, you are quite right. In practice, that’s really not how international (nor EU law) actually works.

    You say: “In that case the state would end up in breach of the EU treaty itself, and ultimately be brought up before the International Court until it either returned to compliance or left the EU.”

    In reality: ah ha ha. No. How many times has that happened? None. How many times have member-states ignored EU rules and regulations, warnings, fines and sanctions, dragged their feet and delayed, prevaricated, horse-traded and got their way in the end? All the bloody time. Look at the SGP as a case-in-point. It was comprehensively ignored by everybody under the sun.

    But worse, your idea of international law is hopelessly naive. “All civilised states do in practice honour the terms of the international treaties they have entered into, and have done so for centuries.” Bollocks do they. All civilised states do in theory honour the terms of international treaties. In practice, we all know that’s not the case.

    “International law is the law.” I wish it were – because it’s a great idea. But international law is something elegant in theory that bears little resemblance to actual reality. If a state is powerful enough, then it can happily breach international law repeatedly with little sanction.

    So, you are right in everything you say – and so is Nosemonkey. The thing is, you’re talking about different things (theory versus practice).

    • “international law also has (again, in theory) supremacy over national law.”
      In what theory? Certainly not in English law.

      • Yes, in English law. I studied international and European law at university, so I at least have an idea about what I’m arguing. This doesn’t make me a scholar on the subject (my major was European politics), but at least I know that the supremacy of international law over domestic law is strongly supported in theory (if weak in practice).

        For starters, there’s Jus Cogens – the inviolable fundamental principles of international law. A British law legislating state-sponsored genocide would be illegal under international law according to Jus Cogens (not to mention the Convention on the Prevention and Punishment of the Crime of Genocide), which would have supremacy over national law in that case (even if Britain were not a signatory of the UN Convention). Intervention by the international community in the case of genocide in such a case could be justified under the principle of Jus Cogens and the norm of the Responsibility to Protect.

        Then there’s the debate between the monist and dualist conceptions of international law. I’ll be lazy and quote from Wikipedia on this:

        In some countries, such as the UK for instance, the dualist view is predominant. International law is only part of British national law once it is accepted in national law… [However,] the supremacy of international law is a rule in dualist systems as it is in monist systems. Judge Sir Hersch Lauterpacht pointed out the Court’s determination to discourage the evasion of international obligations, and its repeated affirmation of: “the self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations.”

        That is the theory you were looking for. It doesn’t mean it’s not contested – but at least we can see it plainly exists in theory. In practice, of course, things are often different.

        • “International law is only part of British national law once it is accepted in national law” strikes me as sound – after all, then it’s no longer international law, but national law (this was the argument of the Blair government when it introduced the Human Rights Act – such legislation would have been unnecessary were international law automatically applied in the UK).

          On that point I agree with Marcin – I’m pretty certain international law has no legitimacy in the UK, except where confirmed by a British law.

          This is a large part why eurosceptics have such a fetish for scrapping/amending the European Communities Act, as they argue that is this piece of legislation that grants EU law legitimacy in the UK. On this, they may well have a point – although I’m pretty certain that it’d be more complicated than repealing just the one Act after almost 40 years of EEC/EU membership.

          The rest of that Wikipedia argument seems little different to the principle that one shouldn’t break one’s international treaty obligations, rather than a confirmation that international law has supremacy over British law. Treaties place governments under obligations – but there’s a long and ignoble tradition of treaty obligations being ignored dating back to pretty much the first treaty ever signed.

          The question is what are the consequences of breaching those international treaty/legal obligations? What can the other, international parties *do* about it if Britain decides not to play ball? (Especially considering the fact that Britain has a permanent seat on the UN Security Council, and so could block pretty much any efforts to hold her to account…)

          If other countries lack the power to force Britain to comply with their wishes (without themselves acting illegally under international law, of course – and any action not confirmed by the UN Security Council would, by the usual definitions, count as illegal), then this – in my books – means that Britain is still sovereign.

        • You might have an argument that certain tribunals or scholars believe that it is a rule of international law that international law is supreme over national law (in fact, I’d be surprised if you were wrong on that), but that is a rule within the “international” legal order, which is quite separate from the British legal order(s) (both collectively and severally).

          As Nosemonkey notes, the rule is quite different within the British legal order. In England and Wales, the rule is merely that the courts strive to the extent possible to interpret the law consistently with treaty obligations, without giving the law a strained interpretation.

  14. It might help to consider what “international law” actually is. Essentially, it’s divided into treaties signed between states on the one hand, and international norms and customs of state behaviour on the other. Both, together, represent “international law.” That’s a simplification (and I’m not claiming it’s not contested), but it’ll do.

    So, what would happen if the UK tore up all its treaties, including membership of the UN? And, imagine that within its sovereign territory the British government began legislating in favour of torture, genocide and slavery. Remember, the UK has left the UN at this point and is under no international treaty obligation not to carry out torture, genocide and slavery. Furthermore, national UK law now authorises these activities. Would the international community have any legal basis upon which to intervene and breach UK sovereignty? Yes, arguably, they would. Because torture, genocide and slavery all contravene jus cogens.

    Yup, it’s not hard to find flaws in this theory (because, in practice, sovereignty comes from the barrel of a gun). However, nor is it hard for me to find flaws in alternative interpretations of international law. Ultimately, you can’t say that international law in the UK is such-and-such or not… because international law is crap. It’s fine if you don’t look too hard, but what we’re doing here is trying to poke a little too closely. Don’t be surprised if it falls apart.

    However, I think my original point still stands (at least, I can make a good case for it). Theoretically (if not in practice) international law has supremacy over national law. This is a big debate between legal scholars we’re wading into – but I’m not alone in what I’m arguing.

    • Which drags us (more or less) back to the original point, which is (partially) that international law is a bit crap – meaning that British sovereignty hasn’t been compromised, because Britain can do what she wants when she wants, and the international community has very little in the way of options to force her to comply. Cf. North Korea, Zimbabwe, Iran, Belarus, etc. etc. etc.

      I, however, have no sovereignty over myself – because if I decide to repeatedly break Britain’s laws (refusing to acknowledge her power over me by refusing to pay tax, for example), then I will be imprisoned.

      • To follow on from this, I’d add that it’s probably a mistake to consider international law as forming a single system of law.

        The more enforceable bits of international law provide for a tribunal with mandatory jurisdiction – EU treaties, ECHR, UN Law of the Sea, and in effect they are each their own separate legal order.

  15. Just checked a few textbooks on the subject. The most sensible answer I could find was that this is something of a non-debate, because international and national law cover completely different realms that only rarely overlap. In national law, the actors are individuals, companies, organisations, etc. In international law (with a few exceptions) the actors are states.

    Importantly, however, a state cannot rely upon a provision in national law as an excuse to avoid its obligations under international law. And, of course, there is jus cogens.

  16. I am afraid it is a fact that international law (treaties) are are the supremee law of every state. Anyone who says otherwsie, does not know what they are talking about.

    US Constitution Article 4: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

    Any state that has ratified the EU Treaty, also introduces a new tier of European law into the legal hierarchy which ranks above their national law. The Irish Constitution explains it clearly in English:

    Irish Constitution Article 29.10: No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

    The reality is that Pinnochio writes a fourth-rate blog on topics he has no understanding of.

    • If it’s a fact, then presumably you can find a link to some document online that demonstrates that it’s a fact? And a fact *in the United Kingdom*, which has a rather different constitution to either the US or Ireland.

      Because, you see, merely asserting that others are wrong without backing up your claims with any evidence fails to prove anything whatsoever.

      In the meantime, might I direct you to Cornell University’s page on international law – a handy summary, which rather refutes your claims about international law’s supremacy (both in the US and elsewhere):

      “The law of nations is a part of the law of the United States unless there is some statute or treaty to the contrary. International law is a part of the law of the United States only for the application of its principles on questions of international rights and duties. It does not restrict the United States or any other nation from making laws governing its own territory.”

      Who is it who has no understanding of this topic, I wonder?

  17. Pinnochio: The Constitution of the US is no different from that of any other state in the world when it comes to the position of international treaties in the legal hierarchy. International law is the law; everywhere on Earth. And the Constitution of Ireland is no different to that of any other member-state of the EU when it comes to primacy of European law over national law, and the obligation under Lisbon to implement EU law even if the majority in the country are against it, the government voted against in the EU Council of Ministers, or the country elects a new government of a different opinion to that which took part in the creation of the law at European level.

    If you insist on your long nose being rubbed in the truth, please see:

    Vienna Convention on Law of Treaties:

    Article 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

    Article 27: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

    http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

    And Lisbon Treaty makes clear that in areas where the EU has an exclusive competence the member-state parliament is forbidden to legislate in that area at all. And when the EU has a ‘shared-competence’ (sic), the member-state must withdraw national legislation as soon as EU law is created and refrain from legislating in any way contrary to EU law ever again in the future.

    Article 2 TFEU
    1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
    2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area.
    The Member States shall exercise their competence to the extent that the Union has not exercised its competence.
    These clauses make clear that under the current EU treaties, power is really only shared in time with Brussels. Every new EU law shrinks the remaining area in which national parliaments can legislate, and with it the power of your vote to influence the law you live under.

    All that anyone can learn about the Europe Union and the Sovereignty of its member-states (for this is not something unique to British sovereignty but applies equally to all other nation-states that have ratified the EU Treaty) from the 4th-rate articles on this blog, is the extraordinarily low level of knowledge (many would say outright ignorance) of those who defend the EU, and the half-truths and deceits that these long-nosed defenders of the indefensible resort to.

    • Erm… Yes. Of course treaties *say* they’re binding, otherwise no one would bother signing them. But just because a treaty says it’s binding doesn’t mean that it is – it’s binding only for as long as the signatories want it to be, or countless countries wouldn’t have ended up deliberately breaking innumerable treaties down the years.

      The question is what happens if you decide to go back on those treaties. What practical steps can be taken to enforce them?

      Who, for example, is going to hold the United States to account if the US decides to break international law? Say, by invading a sovereign country and forcibly overthrowing its leadership without first securing a mandate from the UN?

      Finally: “International law is the law; everywhere on Earth” – even North Korea, Iran, Zimbabwe, etc. etc. etc.?

      If so, it’s not doing a very good job, is it?

      It’s very sweet that you can so easily confuse (flawed) theory and practice, while throwing out childish ad hominems, but for the final time – *in practice* what would happen if Britain unilaterally decided no longer to apply EU laws?

  18. Pinnochio: There is no example of the UK having breached a treaty it has ratified, so the only one indulging in speculative theories about that happening is yourself. Please give me even one of your ‘countless examples’ of a UK breach of any treaty, or admit you are talking nonsense. Treaties are not just binding on governments so long as they feel like it, but on the state in perpetuity unless there is some means of withdrawal, either implicit or explicitly written into the treaty itself.

    A problem with EU supporters is that they are intellectually incapable of conceiving of international society (i.e. the society of nations) as anything other than domestic society (i.e. a society of individuals) writ large. They can only conceive of the relations between nations as equivalent to those between the citizens in a state. You think that the world community of states must either have an over-riding executive to enforce international law, or else international law is abstract stuff that will be ignored with the society of nations then being nothing but an international anarchy. From here euro-federalists conclude that either some international Kantian executive (like the EU Commission aspires to) must be created to enforce international law, or else there will be a Hobbesian ‘war of all against all’. Both those views fly in the face of the actual observed behavior of mature democratic states in the real world today.

    The real-world experience is that nations-states form a well-ordered international community such that they do in practice respect the international treaties they have agreed between themselves in the absence of any over-riding executive to compel them. Euro-federalists ignore this actual behavior of real states, and exaggerate the need for an overarching super-state executive which the rest of the world outside the EU seems to get along just perfectly fine without.

    • “There is no example of the UK having breached a treaty it has ratified”

      Are you quite sure about that, old boy?

      This is getting silly. And increasingly off topic…

      • Sorry, should have read through all of the comments before ranting off to Freeborn-John above. Would have realised it’s just trolling from Freeborn-John, with no connection to reality.

        “nation-states form a well-ordered international community” HAHAHA… Like the US following the Geneva conventions or the entire Europe following the budgetary rules…

  19. I think that the Bill is actually too strict. More than giving new negotiation powers to Westminster, it is tying its hands. Even if the British government wants to say yes to a major change in the EU, it will have to go for a referendum. Given the anti-EU consensus in the media and the British public, this Bill is basically a brake to any further integration in the medium term.

    You are right to say that this will affect negatively the prospect of other EU members to move the EU in the direction they want. However, the most likely scenario is that when other countries fully realise what has been done and that they can’t play football with the UK (to keep your metaphor), they’ll decide to start a new game on another pitch. Britain is already out of the Euro and Schengen, and new EU initiatives will just be built without the UK.

    So the effect is double: one it will slow down integration as you say, but two it will put Britain on the sidelines. On this front I don’t think it is a cunning move. I think it is a completely daft one. I guess the next 10 years will tell.

    The best consequence we could expect, is that once British politicians realise the catch 22 situation they are locked in, it could force them to be more responsible and to adopt a positive stance towards the EU on the national scene. They would pay a price in the short term in terms of popularity but this would be the only way not to be sidelined in the long term in Europe.

  20. @Freeborn-John,

    I won’t provide a comprehensive list of every single time the UK has breached treaties, because – frankly – I can’t be bothered. However, since you argue the UK has NEVER broken a treaty, and because you ask for only one example, I’ll provide it.

    The 1783 Treaty of Paris that concluded the American War of Independence stipulated that Great Britain was to pull its troops out of the Great Lakes region “with all convenient speed.” This was comprehensively ignored by the British, and redcoats remained in the area until the 1794 Jay Treaty.

    That’s one example.

  21. The traditional doctrine of the sovereignty of Parliament is fairly worthless these days. In theory, the Westminister parliament could legislate tomorrow to abolish the Scottish Parliament without the consent of the people of Scotland. In practice, the power to do so is non-existent. By the way, the ICJ has no jurisdiction in EU matters since the Member States ha

    • As I was saying, the ICJ has no jurisdiction in EU matters since the Treaty provides that all disputes between Member States in relation to EU matters have to be referred to the ECJ.

    • Why not? What are the people of Scotland going to do if that happens? Their alternative is to unilaterally declare independence, which is barely viable.

      Given the members returned to the Commons from Scotland, annoying the Scots is not going to change the electoral fortunes of the Tory party.

      • Since it was set up by referendum, i.e. it was felt that such a major constitutional change required the people’s consent, it can be argued that you would need a referendum to get rid of it. It would be argued that it would be unconstitutional to simply abolish it by Act of Parliament. In any case,realpolitik can act as a brake on what Parliament can or cannot do.

        • I assume you mean “political expedience”, rather than realpolitik. If so, as I say, the electoral reality is that the Conservative party couldn’t enjoy less electoral support in Scotland.

          There is no such thing as something being “unconstitutional” beyond being illegal (which it wouldn’t be), or politically unfeasible (which I doubt it is).

          • Call it politically inexpedient if you like. I would say that to act in this way would be unconstitutional in that the constitution of the UK has changed. Dicey’s idea of parliamentary sovereignty does not hold good any more, if it ever did. Of course, the UK parliament can legislate about anything. In practice, it does not for a variety of reasons. For a start, there is the old chestnut about legislating to make smoking illegal in France. Then there are the UK’s international commitments. The UK adheres to them because it wants to be a state governed by the rule of law and to be seen as such – hence, the concern with the illegality of the Iraq war. It adheres to them because it does not want to be seen as a rogue state. Then there are the encroachments made on parliamentary sovereignty by the increasing availability of judicial review. As far as the EU is concerned, if the UK wanted to leave it, it could of course do so by repealing the European Communities Act (and repudiating the EU Treaties to be doubly sure). In fact, if the UK does leave the EU it will do so by using the mechanism provided for in the Treaties because it would be extremely damaging to the UK’s relationship with the EU Member States to do otherwise (and potentially to the UK economy). The UK as a state does not live in a vacuum. Its acts have consequences internationally. All these things have whittled away parliamentary sovereignty in practice. We may not have entrenched provisions of constitutional law laid down in a fully written constitution, but things are changing. Moreover, what is the “referendum lock” if not an attempt to limit parliamentary sovereignty. I would also argue that a result of all this, people’s perception in the UK of what is “right”, i.e. constitutional, is changing.

            • OK, so what’s the mechanism for resisting a move that is “unconstitutional”? And who decides that it is unconstitutional?

              It’s certainly not the operation of conventions, which all have the characteristic of being articulated, and obeyed, and so being hallowed through use.