June 9, 2021


Consent: the dynamite at the heart of the British constitutionPopular sovereignty is fundamental, but our politicians forgot it until Brexit. If they forget again, they will blow apart the country (Helen Thompson, June 9, 2021, Prospect)

Only now, with this half-century period in our history over, does it become possible to understand how EU membership became a very British story about the perils of ignoring democratic consent. But if this chapter is closed, its lessons remain urgent: the three-century long Anglo-Scottish Union is reaching another crisis point, and we are again reckoning with the demands of consent for the constitutional order.

From the beginning, the contrast between the British constitutional tradition and that of the legal order of the European Community that Britain would join in the early 1970s appeared stark. The British constitution was conventionally rendered as the idea that no parliament could bind its successor. This characterisation oversimplified. But the emphasis on parliamentary sovereignty did highlight one undeniable disparity with the EC: the absence of a constitutional court that could set aside the laws parliament passed.

It is inconceivable that the law lords--who then comprised the highest UK court--would have engaged in anything akin to what Perry Anderson, in a recent trio of essays for the London Review of Books, describes as the "brilliant coup" achieved by the European Court of Justice (ECJ). In successive decisions in 1963 and 1964, the ECJ asserted the primacy of Community law over national law, getting the six member states to accept this doctrine as a constraining constitutional principle on their politics. Falling between Britain's first (1961-1963) and second (1967) unsuccessful applications to join the Community, these rulings heightened the constitutional implications of eventual accession. If the UK were an EC member, there would be new laws with direct effect across the UK authorised by a legislative body other than Westminster.

Aware of the problem, those who drafted the 1972 European Communities Act tried to muddy the waters--by structuring the legislation so that the formal applicability of EC law in the UK was conditional on the British parliament having legislated for it to have effect. Otherwise, the Conservative prime minister Edward Heath and his ministers fell back on obfuscation. "Essential national sovereignty," they insisted, remained in place, as if Britain retaining a veto in the Council of Ministers was the same as parliament retaining the sole right to legislate. Heath himself was also outright dishonest with the electorate about how he envisaged the Community's authority developing: as a telegram he sent to his chancellor in March 1973 quietly noted, his government's "goal" was "economic and monetary union," something then being pushed by the West German government.

But from the off, it was an aspect of the British constitution less lauded than parliamentary sovereignty that proved more troublesome for such ambitions. Heath himself had at one point acknowledged that membership would require the "full-hearted consent of the British parliament and people." Given his manifesto ("our commitment is to negotiate; no more no less") though, it was a struggle for him to claim a mandate for accession from the 1970 general election. In ultimately deciding that parliamentary assent alone was sufficient to bring about EC entry, Heath committed a constitutional sin by ignoring the issue of the electorate's consent to a major constitutional change.

No law is legitimate if the people did not consent to it and it does not bind everyone equally. 

Posted by at June 9, 2021 12:00 AM