The ‘rule of the recognised helm’: How does European Union membership impact upon UK Parliamentary sovereignty?

Mcconalogue, James (2018). The ‘rule of the recognised helm’: How does European Union membership impact upon UK Parliamentary sovereignty? PhD thesis The Open University.

DOI: https://doi.org/10.21954/ou.ro.0000d224

Abstract

This study examines the way in which European Union (EU) membership has impacted upon historically precedented understandings of UK parliamentary sovereignty. The position adopted is critical of other approaches within a neo-Diceyan, popular sovereigntist and common law paradigm which have accorded too little significance to the past historical precedents defining Parliament’s sovereignty and its institutional inter-relationships. By overlooking historical constitutional forms, the gravity of the impact of EU membership on the UK constitution has often been misunderstood by those approaches.

By adopting a broadly political constitutionalist position, the thesis proposes an alternative explanation of UK parliamentary sovereignty as the ‘rule of the recognised helm’. It seeks to achieve that objective by adapting the approaches of the ‘rule of recognition’ while incorporating the medieval, political view of sovereignty as operating under the ‘helm’ of the ship of state, responsible for the government of the realm. The thesis establishes that the operation of the ‘rule of the recognised helm’ is dependent upon a uniquely conditioned political history characterised by eight crucial historically precedented ‘historical constitutional forms’ defining UK parliamentary sovereignty, from the thirteenth century through to the contemporary Parliament.

The main contention is that under EU membership, successive governments, through Parliaments, have adopted practices which whilst preserving the fundamental rule, are at odds with those past constitutional precedents. Three key EU case studies – of the Financial Transactions Tax, of the freedom of movement of persons and of the Working Time Directive – are employed as evidence that the UK’s helm of state has, since 1973, incorporated EU institutions which unsettles those political precedents of parliamentary sovereignty. On the other hand, the fourth case study, of Parliament’s place since the UK’s holding of the EU Referendum in 2016 constitutes a new constitutional resettlement, a realignment of Parliament with historical precedent and its sovereignty.

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