The transition of Britain to its modern, post-war democratic form after two World Wars and the drawing to an end of an Empire brought about some significant changes to its political arrangements. It remains a âsettled polityâ and it has been a full democracy for the past 100 years (Gamble 2016, 2019). Internally, within Westminster, Parliamentary sovereignty remains the supreme principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law; in that system, Acts of Parliament cannot traditionally be challenged in the courts. The Westminster system has been deeply embedded in the idea of accountability, which made it possible for the electorate collectively to hold the government of the day to account (King 2015, p. 19). The constitution as a whole continues to be expressed as âpartly written and wholly uncodifiedâ (UK Parliament 2019). Its representative institutions and political traditions stretch back to the seventeenth century (Gamble 2019).
Britainâs place in Europe has formed, for many, a substantial part of its new post-imperial role. The role for Britain in Europe was ambiguous and difficult to express. To establish that role, politicians in Parliament passed the European Communities Act 1972, enabling the UKâs entry to the European Union (EU) in 1973. It voluntarily limited the application of its parliamentary sovereignty (Smith 2017, p. 79). This and other laws reflected major political developments both within and outside the UK since the 1970s. Those laws have included:
- the devolution of powers at Westminster to bodies like the Scottish Parliament and Welsh Assembly;
- the introduction of the Human Rights Act 1998 incorporating the European Convention on Human Rights into UK law;
- the decision to establish a UK Supreme Court in 2009, which ends the House of Lords function as the UKâs final court of appeal.
With those changes, the UK has become less united by the activities of its multinational state than it was in the past. It has moved from being the most centralised state in Europe towards a more devolved system where the other nations of the UK are no longer subordinate to London, Whitehall and Westminster for their policies (Gamble 2016). Under EU arrangements, the constitution has potentially shifted away from the traditional Westminster model, in which ministers in government continue to lead their Departments through the executive and propose and draft Government bills for the UK population, with the consent of the House of Commons. With the Human Rights Act 1998 and the incorporation of the European Convention on Human Rights into UK law and the decision to establish a UK Supreme Court in 2009, it has widened the scope of a judiciary only previously required to give effect to the statutes of Parliament. Inside Westminster, the same two major parties, the Conservatives and Labour, who were the major parties in 1945, are still the same major parties (Bogdanor 2011), run along adversarial lines (King 2015, p. 18). As a subject, Europe split both of the major parties. For example, the Labour Party, in the 1980s, with a breakaway party of the Social Democratic Party; and then the Conservatives significantly in the 1990s (Bogdanor 2019, p. 12). Political events between 2016 and 2019 have highlighted how uneasy a subject it continues to be, including the holding of the EU Referendum of 2016, the majority vote to âLeaveâ in that referendum, in addition to the vigorously scrutinised Article 50 negotiations and withdrawal agreement negotiated under Theresa Mayâs Conservative-led Government. Britain had long failed and continues to dispute reconciling itself with being in Europe (Bogdanor 2011), neither being of Europe, nor run by Europe (Gamble 2016).
1.1 UK Membership of the EU
Britainâs contemporary EU membership impacts upon its governmental competences only in so far as the EU has specific exclusive, shared, supporting or special competences to pursue certain actions or laws, in accordance only with the UK having shared or pooled those fields of legislative competence in certain policy areas through successive European treaties. It was to be the âmost intimate and intense involvementâ of foreign governments in the making of governmental decisions (King 2015, p. 25). In the post-war European political and economic landscape, the European Coal and Steel Community (ECSC), formed from a Treaty, possessed supranational characteristics with the objective of creating interdependence through a common market of coal, coke, iron ore, steel and scrap so that one country could no longer mobilise its armed forces without others knowing, which eased tensions after the Second World War (European Union 2014; Nugent 2006, p. 138). Britain was not a signatory to the Treaty establishing the ECSC, which was signed by six countries (France, West Germany, Italy, Belgium, Luxembourg, The Netherlands) on 18 April 1951. Later in the 1950s, Britain remained absent from signing the Treaties of Rome on 25 March 1957 with the objective to set up the European Economic Community (EEC) (and the European Atomic Energy Community, or Euratom). The EEC marked an extension of European integration to include general economic cooperationâwhich included the guidelines for establishing a common market in manufactured goods and a Common Agricultural Policy (CAP) (Dedman 2010, p. 82). It embodied a degree of supranationalism in decision-making (Nugent 2006, p. 47) and again, Britain was not a signatory to the EEC at that point. Britain was in general, opposed to a continental EEC, particularly through the establishment of supranational European institutions, and potentially detrimental to her export interests and undermining her claims of leading Europe (Berger 2013).
The intentional limiting of national sovereignty by Treaty for the purposes of enabling international cooperation was in line with a number of constitutional provisions set up after the Second World War (Chalmers 2013, p. 5; Kaplan 2018). In spite of Labour and Conservative Governments having no intention of being part of a supranational European organisation (Geddes 2013, p. 47), and during the time of the UKâs original decision not to be part of the Treaty of Rome, it became recognisable to both Britainâs leaders and people that economically the European Community was doing far better and being on the outside while high tariffs were âenormously disadvantageousâ (Geddes 2013, p. 56; Wall 2008; King 2007, p. 92). Against the British favoured intergovernmental regional trade organisation, the European Free Trade Association (EFTA), the EEC âbecame the predominant organisationâ (Geddes 2013, p. 53). A further Treaty, the merger Brussels Treaty, was signed on 8 April 1965. It led to the creation of a single Commission and a single Council to serve the then three European Communities (EEC, Euratom, ECSC) and was later repealed by the Treaty of Amsterdam.
In the meantime, the UK submitted its first application in 1961 to join the EEC, under Conservative Prime Minister Harold Macmillan, but the application had been vetoed by the French President, Charles de Gaulle (Geddes 2013, p. 54). The UK made a further, second application in 1967 under Labour Prime Minister Harold Wilson but had been blocked again by the French President (McLean 2009, pp. 184â185). Shortly after, a Conservative government was formed in Britain under Prime Minister Edward Heath in June 1970. Heath had been seeking for the right terms to be negotiated on the EEC and committed the UK to join in its long-term interest (Norton 2011, p. 55). It was eventually the European Communities Act 1972 under Heath which domestically permitted the UK specifically to join the EEC (McLean 2009, p. 184). The UK required the European Communities Act 1972 in its own domestic law in order to become a member. A series of significant new treaties and treaty amendments to the European Communities Act have been agreed since that Act and the changes in UK law necessary to give effect to the new treaties have been made under amending Acts. The result of the European Communities Act 1972 was that future Parliaments were, unless and until they expressly repealed it, bound by its terms (Goldsworthy 2013, p. 65). Politically, the original European Communities Act 1972 received public endorsement through a post-ratification referendum in 1975, with a two-to-one vote in favour of continued membership on a 64% turnout (Geddes 2013, p. 65). The UK only joined the European Communities on 1 January 1973, along with Denmark and Ireland, raising the then number of member states to nine.
It was not u...