Some interesting LSE working papers: prisoner voting and the EU Act 2011

A couple of the latest papers in the LSE Law Department’s Working Papers Series caught my eye. In the first, Peter Ramsay argues (contrary to the ECtHR’s decision in Hirst v UK (No 2)) that the UK’s ban on prisoner voting is necessary and proportionate in a democratic society – and should not therefore be regarded as a breach of the European Convention. The core of his argument (with which I do not agree) is apparent from the following excerpt from the paper:

The essence of my argument is that both the UK government and the Strasbourg court imagine democratic citizenship to be no more than a question of choosing between alternative political representatives. The Court’s position, in particular, implicitly discounts the right of citizens in a democracy to influence both the choices that other citizens make and the political content of the available choices, and their right to enjoy this influence independently of executive interference. This thin conception of democracy, that both sides of the argument over prisoner enfranchisement take for granted, is consistent with contemporary political life in Europe. It is, however, a counterfeit of democracy in the sense of a society in which the people collectively govern themselves because they are the authors of the laws that they obey. Retaining the ban on prisoners’ voting is the only decision that will not further institutionalize this counterfeit in the UK’s political life.

The second paper that caught my eye was Jo Murkens’s piece on the European Union Act 2011. In a thoughtful article, Murkens considers various aspects of the constitutional implications of the Act. Particularly interesting (to me, at least) is his discussion of Act’s implications for parliamentary sovereignty. He notes that one view of sovereignty holds that it is “substantively self-embracing, i.e. that today’s Parliament can successfully impose substantive limitations on tomorrow’s Parliament”, and that Vernon Bogdanor (in “Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty” (2012) 32 Oxford Journal of Legal Studies 179) argues that the EU Act introduces a substantive restriction of future parliaments’ authority. Paraphrasing (and then quoting) Bogdanor, Murkens writes:

the EUA [according to Bogdanor] transforms Parliament into a new kind of legislature, a ‘tricameral’ Parliament that includes the familiar two chambers and, in the context of significant Treaty changes, also the previously ignored electorate. The EUA inserts a new precondition that must be satisfied prior to legislation (approval by the electorate in a referendum): ‘…the referendum requirement in the European Union Act deprives the legislature of its sovereign power to legislate on certain European Union matters by requiring, for these matters, the assent of a body external to the legislature’. As a result, Parliament has i) partially but substantively limited its legislative authority; and ii) unilaterally altered the rule of recognition (i.e. the condition sine qua non for the validity of law in any legal system). ‘In seeking to restore national sovereignty, the European Union Act has, paradoxically, restricted parliamentary sovereignty’.

Murkens concludes – rightly, I think – that Bogdanor’s analysis is wide of the mark. He argues that it is

misplaced theoretically, doctrinally, and empirically. Although the EUA purports to target future Parliaments, they remain unequivocally able, according to theory, to repeal or amend the EUA with a simple majority in Parliament. Doctrinally, the EUA is directed at Treaties amending or replacing TEU or TFEU (section 2 EUA) and the amendment of TFEU under Article 48(6) TEU (sections 3 and 4 EUA). In short, the EUA does not (and cannot) unilaterally change the rule of recognition; but it does seek to condition the exercise of Ministerial power (section 5, but also ss.3, 6, 7, 8 9, 10 EUA).

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