The Referendum in the UK’s Constitution: From Parliamentary to Popular Sovereignty?

2020 ◽  
Author(s):  
Stuart G White
Keyword(s):  
Popular Sovereignty ◽  
Future Research ◽  
The Political ◽  
Constitutional Change ◽  
Constitutional Convention ◽  
The People ◽  
Parliamentary Sovereignty ◽  
The Status ◽  
The Uk ◽  
The Eu

The 2016 referendum on the UK’s membership of the EU has led to much questioning of the place of the referendum in the UK’s constitution with a particular emphasis on the status of Parliamentary and popular sovereignty. Some commentary suggests that the UK has shifted from a constitution of Parliamentary sovereignty to one of the popular sovereignty. Drawing on A.V. Dicey’s discussion of the UK constitution in his Introduction to the Law of the Constitution, this article sets out the case that the referendum is the site of a change in the UK’s constitution. However, according to this case, the change is not accurately described as a shift from Parliamentary to popular sovereignty. It is better understood in terms of the emergence of a new constitutional convention which has altered the manner by which Parliament, as the legal sovereign, is kept subordinate to the ‘people’ as the political sovereign. The article offers some preliminary empirical assessment of this case for constitutional change and indicates areas for future research. These include considering the possible influence of democratic constitutionalist thinking in the UK’s use of referendums and the desirability and implications of a full transition to democratic constitutionalism.

Destituent Power

2020 ◽  
pp. 123-138
Author(s):  
Markus Patberg
Keyword(s):  
Civil Disobedience ◽  
Popular Sovereignty ◽  
The Political ◽  
Constitutional Change ◽  
Constituent Power ◽  
Public Authorities ◽  
Protest Movements ◽  
The Public ◽  
The Right ◽  
The Eu

This chapter takes up the public narrative of ‘We, the multitude of Europe’, which suggests that the only hope for progressive change in the EU lies in a politics of disruption, and asks whether this idea can be defended based on a systematic model. To that end, it resorts to the political theory of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. Distinguishing between anti-juridical and juridical conceptions of destituent power, the chapter discusses to what extent the disruptive political strategies put forward by protest movements in the EU can be regarded as justifiable. Focusing on the juridical strand as the more plausible one, it argues that ideas of destituent power as ‘state civil disobedience’ run into a problem of authorization. By contrast, popular sovereignty-based approaches illuminate a neglected dimension of constituent power: the right to dismantle public authorities without the intention to create new ones. While such a model of destituent power in part captures the actions and demands of EU protest movements, it can only complement, not replace, the constructive side of constituent power.

scholarly journals The EU and constitutional change: a research proposal

2010 ◽  
Vol 6 (3) ◽  
pp. 335-338 ◽  
Author(s):  
WTE ◽  
TWB
Keyword(s):  
Political Institutions ◽  
Body Politic ◽  
Case Law ◽  
The Political ◽  
Constitutional Change ◽  
Support Mechanism ◽  
The People ◽  
The One ◽  
Actual Relationship ◽  
The Eu

The first punctual question arising is how, in its (single) constitutional being, a body such as the Union combines its constituent roots in the original founding authorities (the states) with those, autonomous, in its own institutions. These are the ECJ for interpretation; the political institutions for practice and convention. In other words, what is the actual relationship, under the urge of change, between the states as treaty masters and the European Council, the Council, the Parliament and the Court? Secondly, there is the question as to how these shared constituent roots reflect not on constitutional change but on the day-to-day legislative and executive functioning of the Union's body politic. The coming constitutional settlement on the euro's financial support mechanism will not only consist of a new treaty. It will also take the form of secondary legislation and case-law. A third, most fundamental, question is how this ever-unfinished constitutional situation, imperfect by definition, will ultimately allow the development of a sound relationship between the authorities and the people, a relationship which is at the heart of any constitutional settlement. The last question (for now) sends us back to the one put in a previous editorial (in issue 1 of this year). It is: how to account for this incomplete and urged situation in a single and coherent constitutional reading?

The Brexit Referendum and the Crisis of “Extreme Centrism”

2016 ◽  
Vol 17 (S1) ◽  
pp. 131-142 ◽  
Author(s):  
Michael Wikinson
Keyword(s):  
European Union ◽  
Status Quo ◽  
The Political ◽  
The European Union ◽  
The Status ◽  
The Uk ◽  
The Eu

The result of the Brexit referendum sends shockwaves through the political fabric of the UK, Europe and beyond. It is the latest instance in a series of anti-systemic shocks to hit the EU, but will almost certainly not be the last, as discontent with the status quo and a disconnected elite continues unabated across the Continent (and is replicated across the Atlantic), and the European Union provides a convenient target for voters to express their anger and resentment.

Brexit – the UK’s exit from the European Union1

2019 ◽  
pp. 63-82
Author(s):  
Eva A. Duda-Mikulin
Keyword(s):  
Identity Politics ◽  
Migrant Workers ◽  
The Political ◽  
Political Climate ◽  
Political Complexity ◽  
The People ◽  
History Of ◽  
Run Up ◽  
The Uk ◽  
The Eu

The fourth chapter focuses on Brexit – the UK’s exit from the EU with key point being around disrupted livelihoods of EU migrant workers. First, the context of neopopulism is brought to the fore. Here, I explore the criminalisation of migrants and refer to the writings of Zygmunt Bauman (2016). Second, a brief history of the European Economic Community and the EU is provided. Third, the political complexity behind the decision to hold the referendum is explored. The wider context and political climate worldwide is analysed with particular focus on the rise of distrust, disillusion and identity politics. The context of the new populism as the prevalent ideology is put against the political situation in the UK with David Cameron starting talks on the need for the people to have their say in the run up to General Election 2015. The results of the referendum are analysed and critically discussed taking into account voters and their demographic characteristics correlated with the socio-economic situation in the country. The chapter culminates in a series of case studies with the aim to illustrate pre- and post-Brexit-vote reality for those who exercised their Treaty rights and came to work in the UK.

Constitutionalism and Crisis Narratives in Post-Brexit Politics

2020 ◽  
Vol 68 (4) ◽  
pp. 895-915
Author(s):  
Eoin Daly
Keyword(s):  
Ad Hoc ◽  
Popular Sovereignty ◽  
Political Crisis ◽  
The Political ◽  
The People ◽  
Legal Foundation ◽  
Liberal Constitutionalism ◽  
The Status ◽  
Distinct Source ◽  
Crisis Narratives

The Brexit vote has sparked renewed criticism of the United Kingdom’s ad hoc constitutional arrangements, particularly in relation to the status of popular sovereignty. While the people is politically recognised as ‘sovereign’ through the apparent unassailability of its referendum verdict, this sovereignty has no legal foundation or form – thus giving it an elusive, indefinite character. In turn, legal commentators have argued that the lack of a clear conceptual framework for constitutional referendums aggravated the political crisis that followed the vote and that the uncertain nature and authority of referendums represents a distinct source of constitutional crisis in its own right. In this article, I consider how this ‘constitutionalist critique’ of the Brexit referendum, and its ad hoc constitutional framework, reflects a particular conception of liberal constitutionalism as a bulwark against the hazards and vicissitudes of unstructured popular sovereignty. I will argue that this perspective overestimates the capacity of constitutional law to regulate expressions of popular sovereignty via referendums, that it misconceives the character and claim of popular sovereignty more generally, and that it reflects certain characteristics of liberal legalism in its stance towards politics and political contingency.

scholarly journals The uses of ambiguity: representing ‘the people’ and the stability of states unions

2012 ◽  
Vol 4 (1) ◽  
pp. 107-132 ◽  
Author(s):  
Andrew Glencross
Keyword(s):  
Political Community ◽  
Popular Sovereignty ◽  
Constitutive Relationship ◽  
Democratic Legitimacy ◽  
The Political ◽  
Democratic Accountability ◽  
The European Union ◽  
The People ◽  
The Stability ◽  
The Eu

The European Union (EU) and the antebellum US represent attempts to overcome anarchy without substituting hierarchy. Understood as ‘states unions’, these two systems are shown here to share foundational indeterminacy over sovereignty and the constitution of the people (i.e. the boundaries of the political community). Existing scholarship appreciates the EU's resulting democratic deficit but fails to problematize how dual ambiguity is sustained. The contrast between both states unions is used to probe this mutually constitutive relationship between sovereignty and democracy in an anti-hierarchical order. Defining the boundaries of the people by invoking popular sovereignty led in the antebellum, the paper argues, to a bifurcated debate over where the hierarchy of democratic legitimacy resided, destroying ambiguity. The contrast further shows that the EU has avoided the development of such rival, mutually exclusive constitutional visions that seek to make the people and sovereignty congruent at either the unit or union level. Instead, the EU has sustained dual constitutional ambiguity by allowing for multiple accountability claims reliant on overlapping notions of the people. Democratizing international cooperation thus should focus on the form democratic accountability can take rather than seeking to use popular sovereignty to establish some decision-making level where sovereignty and the people are congruent.

The Case for Repealing the Second Amendment? The Historical Barriers to Constitutional Change

2021 ◽  
Vol 51 (4) ◽  
pp. 595-607
Author(s):  
David T. Konig
Keyword(s):  
Constitutional Law ◽  
Theory And Practice ◽  
The Political ◽  
Constitutional Change ◽  
Second Amendment ◽  
The People ◽  
The Right ◽  
The U.S ◽  
Popular Constitutionalism

The controversy surrounding the Second Amendment—“the right of the people to keep and bear arms”—is, to a large extent, historical in nature, redolent of other matters in this country’s legal and constitutional past. But the historical analogies that might support the Amendment’s repeal do not permit easy conclusions. The issue demands that legal historians venture beyond familiar territory to confront unavoidable problems at the intersection of theory and practice and of constitutional law and popular constitutionalism. An interdisciplinary analysis of Lichtman’s Repeal the Second Amendment illuminates the political, legal, and constitutional dimensions—as well as the perils—of undertaking the arduous amending process permitted by Article V of the U.S. Constitution.

scholarly journals Political Theory of Populism

2019 ◽  
Vol 22 (1) ◽  
pp. 111-127 ◽  
Author(s):  
Nadia Urbinati
Keyword(s):  
Political Culture ◽  
Political Theory ◽  
Popular Sovereignty ◽  
The Political ◽  
Representative Government ◽  
Constitutional Democracy ◽  
The People ◽  
Democratic Societies ◽  
Democratic Principles

Populism is the name of a global phenomenon whose definitional precariousness is proverbial. It resists generalizations and makes scholars of politics comparativist by necessity, as its language and content are imbued with the political culture of the society in which it arises. A rich body of socio-historical analyses allows us to situate populism within the global phenomenon called democracy, as its ideological core is nourished by the two main entities—the nation and the people—that have fleshed out popular sovereignty in the age of democratization. Populism consists in a transmutation of the democratic principles of the majority and the people in a way that is meant to celebrate one subset of the people as opposed to another, through a leader embodying it and an audience legitimizing it. This may make populism collide with constitutional democracy, even if its main tenets are embedded in the democratic universe of meanings and language. In this article, I illustrate the context-based character of populism and how its cyclical appearances reflect the forms of representative government. I review the main contemporary interpretations of the concept and argue that some basic agreement now exists on populism's rhetorical character and its strategy for achieving power in democratic societies. Finally, I sketch the main characteristics of populism in power and explain how it tends to transform the fundamentals of democracy: the people and the majority, elections, and representation.

scholarly journals Features of transformation of legal entities in the conditions of Brexit

2021 ◽  
pp. 531-538
Author(s):  
Olha Ovechkina
Keyword(s):  
United Kingdom ◽  
The State ◽  
Member States ◽  
Eu Member States ◽  
The United Kingdom ◽  
The Status ◽  
The Uk ◽  
Actual Location ◽  
The Eu ◽  
Legal Entities

In connection with the decision to withdraw the UK from the EU a number of companies will need to take into account that from 1 January 2021 EU law will no longer apply to the United Kingdom and will become a "third country" for EU Member States, unless the provisions of bilateral agreements or multilateral trade agreements. This means that the four European freedoms (movement of goods, services, labor and capital) will no longer apply to UK companies to the same extent as they did during the UK's EU membership. The purpose of the article is to study, first of all, the peculiarities of the influence of Great Britain's withdrawal from the European Union on the legal regulation of the status of European legal entities. Brexit results in the inability to register European companies and European economic interest groups in the UK. Such companies already registered before 01.01.2021 have the opportunity to move their place of registration to an EU Member State. These provisions are defined in Regulations 2018 (2018/1298) and Regulations 2018 (2018/1299).British companies with branches in EU Member States will now be subject to the rules applicable to third-country companies, which provide additional information on their activities. In the EU, many countries apply the criterion of actual location, which causes, among other things, the problem of non-recognition of legal entities established in the country where the criterion of incorporation is used (including the United Kingdom), at the same time as the governing bodies of such legal entities the state where the settlement criterion is applied. Therefore, to reduce the likelihood of possible non-recognition of British companies, given the location of the board of such a legal entity in the state where the residency criterion applies, it seems appropriate to consider reincarnation at the actual location of such a company. Reducing the risks of these negative consequences in connection with Brexit on cross-border activities of legal entities is possible by concluding interstate bilateral and multilateral agreements that would contain unified rules on conflict of law regulation of the status of legal entities.

9. European Union law and institutions

2021 ◽  
pp. 124-141
Author(s):  
Colin Faragher
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Cooperation Agreement ◽  
The Status ◽  
Fundamental Rights And Freedoms ◽  
The Uk ◽  
The Eu

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the Treaty framework and sources of EU law as well as the institutions of the EU. It covers the legal background to the UK’s departure from the EU, the legal process through which the UK left the EU, the key provisions of the EU–UK Trade and Cooperation Agreement (2020), and the European Union (Future Relationship) Act 2020. This chapter also discusses the effect of the UK’s departure from the EU on the status of the sources of EU law and the effect of leaving the EU on the Charter of Fundamental Rights and Freedoms as well as failure to transpose a Directive into national law and the effect of leaving the EU on the Francovich principle.

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