Parliamentary Sovereignty, the EU Free Movement of Persons and the Precedent of Fundamental Rights Provision

Abstract

Parliament’s sovereignty is effectively unsettled because EU-level fundamental rights schemes are incorporated into the UK constitution. The historical precedents of Bracton, in a medieval constitutional form, present a constitution in which governing at the helm is presented as legally distinct but politically contingent upon its capacity to determine and respect fundamental rights. Under EU membership, EU fundamental rights schemes protected by the courts become constitutionally elevated, entrenched in codes of written and legal form. As such, rights are expressed as unchallengeable instruments above politics—complete with EU legal supremacy, direct effect and ECJ jurisdiction—relative to the historically precedented and minimalist protection afforded by Parliament. This has meant the dilution of the domestic legislature as a rights-providing institution. This chapter appeals to the political constitutionalist tradition, addressing the primacy of political legitimacy and democratic parliamentary majorities over constitutional entrenchment and the contemporary narrow determination of rights by the courts.