Brexit is a landmark, and dramatic,
event in British constitutional history. Countless words have already been
penned on the subject, but much more will follow over the weeks, months and
years to come because whatever happens next the long term impact of the 2016
referendum is profound for our understandings of how the UK Constitution
operates. Without touching too much on the merits of Brexit, this post
introduces some of the key constitutional issues that have been thrown up in
light of Brexit, using hyperlinks to direct students to some of the leading
contributions over the Summer of 2016.
The Future of Referendums
The conduct
and form of the referendum has raised a number of questions as to the role
of referendums (or referenda) in the future.
It was alleged that the Remain side overplayed ProjectFear,
with for instance the Chancellor
suggesting that a punitive budget would follow a leave vote. The Government
were also criticised for orchestrating a round of international voices to speak
against a vote to leave. On the other hand, a peculiar, and perhaps
unavoidable, feature of referendums is that, unlike a General Election, often at
least one side of the debate knows that it is unaccountable for the delivery of
its promises as they cannot form a Government. Both of the Leave campaigns were
accused of abusing this position by making unfeasible
claims about the likely settlement post-Brexit. For many, the UKIP based
campaign was also considered shocking
in the manner in which it took on certain issues. Tensions were highlighted
when one week before the referendum, Jo Cox MP was murdered.
The form of the referendum has also raised numerous
questions as to what the result means in terms of the process of responding to
the result. Although a rather hopeless petition was put
together to annul the referendum, few people have questioned the legitimacy
of the result or argued that the narrow result in favour of leaving (52%-48%)
renders its impact questionable. But there has been a vigorous debate about the
process by which the vote should be implemented, a debate encouraged by the
silence of the European Referendum Act on the issue.
The first formal stage of the process will be the notification
to the EU of the UK’s decision to withdraw under Article 50 of the Treaty on
the European Union. Prior to the vote, PM Cameron had declared that he would
trigger Article 50 immediately, if the vote was to leave. In the event, however,
he did not take this step and instead resigned at
8.30am on June 24 ie almost immediately after the vote was announced. This left open the question as to whether the PM had the
power under the Royal Prerogative to trigger Article 50 (see Elliott)
or whether the PM would be required to
consult Parliament before taking such a step (eg see Barber
et al). During the Autumn of 2016 three
(conjoined) legal cases will be heard on the issue, with reportedly the
Supreme Court already planning to hear the case in front of a nine-strong bench
in December. Very unusually, the skeleton argument has been made public.
Meanwhile, an additional debate has been raging about what
the referendum tells us about the meaning of the political constitution and its
overlap with Parliamentary
sovereignty (eg Ekins
v O’Brien).
The short-term
constitutional hiatus post-Brexit
For many Brexit triggered a temporary constitutional crisis.
It is not unusual for a PM to
resign mid-term, but the political turmoil that followed during the weeks
after was unprecedented in the post-war period, as the Leader of the Opposition
lost the support of his Parliamentary colleagues, the leader of UKIP resigned,
the Scottish First Minister threatened a new referendum on Scottish
independence, the Deputy Northern Ireland First Minister called for a
referendum in Northern Ireland and both the value of the Pound and the Stock
Market plummeted.
One option might have been to see the referendum as a de
facto mandate for a ‘Brexiteer’ to become PM. But the official Leave campaign
dissolved immediately after the vote and, in the subsequent Conservative leadership
campaign, one by one the likely ‘Brexiteer’ candidates failed to obtain the support
of the Party to become PM. The outcome was that within one month of the
referendum a new Government had been formed under the former Home Secretary,
Theresa May, a ‘reluctant’ member of the Remain camp. Three of the
Ministerial posts of Government most important to t he implementation of Brexit,
however, were given to prominent advocates of leaving the EU.
Attention could now move onto implementing Brexit, with it argued
in some quarters that the major constitutional question-mark that flowed from
the vote to leave was the failure of the Civil
Service to put in place a contingency
plan as to how to leave the EU pre-June 23.
Short to mid-term
Constitutional challenges
By September 2016, the economy and the markets had recovered
much of its pre-Brexit strength but the various steps in implementing Brexit
had crystallised. There is still a hope that the process could be relatively
straightforward, but there are numerous papers that have analysed the
various constitutional
challenges (Green lists 19 legal matters to be resolved) that need to be overcome, with the devolution
arrangements one of the most challenging (see also Joseph). As of September 2016 the formal
Government position was that ‘Brexit means Brexit’ and even issues where it
might seem that there is agreement, such as recognising the legal
rights of EU
citizens post leaving the UK, remain subject to the negotiation with the EU
and are mired
in complexity. The role of Parliament in the implementation process is a
cause of some debate
but Parliament has launched a number of inquiries
to interrogate the work of the Government.
One option to add legitimacy to the exact form of Brexit to
be adopted would be for the new Government to call a fresh General Election (although here's a post on why this might be a bad idea). A
reason why this might be deemed appropriate is that the Conservative’s 2015
manifesto made a commitment to retain access to the Common Market of the EU,
which may not be possible to guarantee once negotiations get going. However,
the ability of the PM to call an election is restricted by the Fixed term
Parliaments Act 2011 (see Norton)
meaning that Parliament would have to agree to this step.
In the meantime, until Brexit is completed and afterwards,
there will be some interesting
legal issues to resolve about how EU law should continue to be applied in
the UK. Various dates have been put forward for the completion of the process, possibly as late as 2025.
Long-term
constitutional questions: (i) The culture of communities
A key rationale behind a constitution is its capacity to
secure a stable system of governance. It can achieve this because a
constitution both ‘organises’ and ‘controls’ the exercise of public power. The
organising function involves the creation and maintenance of an acceptable and
legitimate distribution of public power for an agreed geographical terrain. The
controlling function involves the creation and maintenance of appropriate
channels, processes and institutions through which trust can be maintained in
the exercise of power. Both functions are vital to the stability of what
liberal philosophers used to refer to as the Social
Contract of a nation.
It is often claimed that one of the successes of the UK
Constitution has been its ability to retain a constitutional settlement with
remarkable longevity which has tended to evolve incrementally, subtly and
without the experience of violent rupture and social upheaval. This
understanding is possibly too complacent given the Civil Wars of the 17th
Century and the expansion and contractions of the Geographical coverage of the Kingdom
over the centuries, but most UK constitutional literature has tended to take
for granted the homogeneity of the UK demos – and indeed its sense of identity.
Brexit, however, has possibly shaken apart that understanding. Most obviously the
three devolution settlements that exist in the UK might have to be reconsidered,
with post-Brexit renewed debates about the adequacy of respect that the UK
constitution pays to Scottish and Northern Irish interests. Pre-Brexit some
in England also hankered for more power, and this pressure may be accelerated
by Brexit. More fundamentally the correlation of the split in the remain/leave
vote with identifiable patterns of geography, social
class, job opportunity, age, education, wealth, and above all, moral/social attitudes might
say something very powerful about the challenges that the country faces in
reimagining the UK constitutional settlement post Brexit (eg Thomas).
Further, identity
politics and patriotism has become an issue which is unlikely to go away
whatever the end result of Brexit.
These issues may deserve more attention in the writings of constitutional
lawyers in the future than they have done in recent years.
Long-term
constitutional questions: (ii) The Health of British Democracy
The traditional response to the dilemmas referred to above
is democracy, and its exercise through politics. The UK constitution has often
been understood as a political constitution based firmly upon the doctrine of Parliamentary Supremacy . A core and contentious feature of the settlement has been the
manner in which the voting system has converted the individual preferences of
the electorate into political power. On whether this solution creates fertile
ground for elective dictatorship or strong and accountable government views
differ. But for most of the last 200 years the settlement has operated through
a strong 2-party model of politics, which has had the benefit (a) of allowing
for the maintenance of a powerful and organised government and opposition and (b) mapping political power reasonably
accurately onto dominant layers of public opinion. One narrative that comes out
of Brexit is that it has revealed very serious cracks in this political
settlement, insofar as politicians have been accused of developing and
implementing law and policy at variance to electorate demand. Even before
Brexit trust in public
life was said to be an issue, and through the Brexit process Remainers have
been labelled as representing the ‘establishment’. Does Parliament,
Parliamentary
democracy or the electoral process need to be rethought? (see also this post)
Long-term
constitutional questions: (iii) Has the legal constitution has been diminished
Infamously, trust in the authority of professional expertise
was derided during the Brexit campaign. Although the Brexit vote means nothing
by itself, it has been interpreted by many as an opportunity to reassert the
primacy of the political constitution. This process was already under way
before Brexit, but the reduction in the power of the strongly legal elements of
the current constitutional settlement has been made more likely by Brexit. Problems
remain in operationalising this shift away from a legalised constitution but
the removal of the oversight of the Court
of Justice of the European Union is a concrete goal of current Government
policy, as is the replacement of the Human
Rights Act. These measures map
onto a broader vision held by some of the need to rebalance the relationship between
the judiciary
and political branch in public law.
Long-term
constitutional questions: (iv) How strong are the Constitution’s checks and
balances?
A claim in favour of the political constitution forces us to
reconsider what this means in practice. The secret to the ‘genius’ of UK
constitution has sometimes been claimed to be its various processes of
accountability and its checks and balances, structures and institutions which
go well beyond democracy and the rule of law. But the strength of these systems
and institutions, and the introduction of new ones, will be tested by the
disruption to ‘ordinary’ politics caused by Brexit. In this respect, the
following represent a selection of aspects to the constitution about which
concern has been expressed in recent times: the reduction of autonomy of constitutional
watchdogs; changing governance arrangements at the BBC; constituency boundary
changes; the powers of the House of Lords; the cut backs in legal aid and the
rise in litigants-in-person; pressures on the administrative justice system, including the shift to online dispute resolution; an
overstretched civil service.
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