Michael Gordon

The United Kingdom and the Fiscal Compact: Past and Future

United Kingdom perspective on the Fiscal Compact - December 2011 Brussels summit veto - European Union Act 2011 - Legal obstacles to accession to Fiscal Compact - Legal obstacles to incorporation into EU Treaties - Relevance of legal conditions and political motivations - Legal obstacles to implementation of balanced budget rule - Interpretation of Article 3(2) - Parliamentary Sovereignty - Challenges to United Kingdoms political constitution

The UK's Fundamental Constitutional Principle: Why the UK Parliament Is Still Sovereign and Why It Still Matters

It has become almost trite to observe that the position of the doctrine of parliamentary sovereignty as the fundamental principle of the UK constitution is increasingly subject to challenge. Yet even if the doctrine of parliamentary sovereignty can, in one form or another, withstand the contemporary challenges to its enduring constitutional status—and, as will be explained, the argument developed in this paper is based on exactly such a position—such challenges nevertheless appear to proliferate. This paper addresses a number of recent constitutional developments which might appear to extend the narrative that parliamentary sovereignty is a much challenged doctrine, which broadly fall into two categories: (i) recent judicial decisions which provide an insight into the courts’ present view of the scope and consequences of parliamentary sovereignty, in particular Moohan and Evans; and (ii) proposed legislative change to the existing UK devolution settlement, and the potential consequences of that change, particularly that responding to the result of the September 2014 Scottish independence referendum. In exploring the compatibility of these developments (or where applicable, potential developments) with the doctrine of parliamentary sovereignty, this paper will explain

Democratic tensions in decentralised planning – Rhetoric, legislation and reality in England

The shifting of power from the central state to local and sub-local arenas of governance (labelled as localism or decentralisation) is a common feature of many 21st-century democracies, popular with both the “left” and “right” in political terms. A common justification for this is that it is assumed to be “more democratic” than the alternative. The superficiality of this assumption, however, conceals much tension and complexity, not least potential tensions between different variants of “democracy”. This paper explores this tension and complexity using the example of the new neighbourhood planning powers in England, introduced through the 2011 Localism Act, which combine representative and direct forms of democracy, and promote public participation. We will argue that whilst opening up new channels for democratic participation by citizens, the reforms introduced in 2011, and similar moves towards decentralisation of (planning) powers elsewhere, may be insufficiently cognisant of power dynamics at the local and community scales, leading to various sets of tensions between the actors involved. We conclude that how the actors respond to these tensions will have a strong influence on the success or otherwise of this experiment with planning and democracy.

The UK's Sovereignty Situation: Brexit, Bewilderment and Beyond …

Debate about ‘sovereignty’ has become impossible to avoid in the UKs current, post-referendum but pre-Brexit, constitutional environment. Perhaps this is nothing new, and UK constitutionalism has always been shaped, quite explicitly and to a significant extent, by a captivation with the concept of sovereignty. Yet at the very least, the 2016 UK referendum on European Union (EU) membership has served as the centrepiece around which public and elite exchanges about legal and political dimensions of sovereignty have visibly intensified. In this context, this paper aims to reflect briefly and critically on the UKs present sovereignty situation, considering the use (and abuse) of the concept in debate about national membership of the EU, its relevance (and irrelevance) to the process through which we move to exit from the Union, and also the potential implications of Brexit for our often confused national understanding(s) of this idea.

A Basis for Positivist and Political Public Law: Reconciling Loughlin's Public Law with (Normative) Legal Positivism

This article analyses the work of Martin Loughlin on the nature of public law, and in particular, his ostensibly strident anti-positivism. It is argued that despite this, Loughlins work can be reconciled with a normative account of legal positivism, based on the work of Jeremy Waldron. The article maintains that Loughlins account of public law as political jurisprudence is methodologically compatible with, and potentially even substantively complementary to, normative legal positivism. It is ultimately suggested that this reconciliation provides a methodology for public law scholarship which is both positivist and political, and which may offer insight into the subject beyond that which either approach might generate alone.

Brexit: a challenge for the UK constitution, of the UK constitution?

The United Kingdom 2016 referendum on membership of the European Union – challenges of pursuing the decision to withdraw – challenges for the UK constitution in commencing, executing, concluding, and legitimising EU withdrawal – domestic constitutional requirements for triggering Article 50 TEU – roles of UK government, UK Parliament, and devolved institutions in Brexit – a second referendum or a national general election on withdrawal terms – exiting the EU as a challenge of the UK’s political constitution – Brexit as exposing limitations of the UK’s current constitutional arrangements and architecture – Brexit as an unprecedented event and the centrality of politics – constitutional factors contributing to the outcome of the referendum – concerns about sovereignty and the (im)possibility of a national response – potential implications of the referendum for the UK and for the EU