Some implications of Brexit for the Constitution

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. The Public Administration and Constitutional Affairs Committee offered its assessment of the lessons that needed to be learned in a 2017 inquiry.

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 also raised numerous questions as to what the result meant in terms of the process of responding to the result. Although a rather hopeless petition was put together to annul the referendum, few people questioned the legitimacy of the result or argued that the narrow result in favour of leaving (52%-48%) renders its impact questionable. But there was 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 was the notification to the EU of the UK’s decision to withdraw under Article 50 of the Treaty on the European Union. This eventually occured on 29 March 2017. 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). This led to one of the most high profile cases for many years, Miller, in which the court ruled that the triggering of Article 50 required an Act of Parliament, which was subsequently passed.

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. Early claims that the process would be relatively straightforward, soon were overtaken by events (Green identified 19 legal matters to be resolved). Perhaps the main stumbling block was the lack of clear understanding as either the correct procedural way forward or the policy to adopt.

One option to add legitimacy to the exact form of Brexit to be adopted was for the new Government to call a fresh General Election, complete with competing mandates on the Brexit terms to be aimed for in negotiations. An initial barrier to this option was the Fixed term Parliaments Act 2011 (see Norton), which required Parliament to agree to its early dissolution. In the event it did, with the PM widely seen to be using the election to obtain a strong mandate in favour of her approach to Brexit. In June 2016, however, the result was a hung Parliament. This led to a further Parliamentary problem, in that in order to establish a stable government PM May was required to come to a 'Confidence and Supply' agreement with the DUP. This agreement differed from the 2010 coalition agreement between the Conservatives and the Liberal democrats in that the DUP did not become a formal part of governemnt, but in return for various undertakings agreed to vote with the Conservative Party in Parliament. The agreement, however, was enough to allow the Government to secure a majority on Parliamentary Public Bill Committees, and so facilitate the flow of legislation.

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. The negotiations between the UK and the EU as to the exit process are underway (see the Department for Exiting the EU). As this post is written, the first of the many Bills throguh which the new legal arrangement will be established is being debated in Parliament. The European Withdrawal Bill has caused widespread concern and debate. It is now largely accepted that the only practical way that the process can be managed is for the Government to be granted extraordinary powers of law-making under so-called Henry VIII clauses. However, this still leaves the question of how wide ranging those powers should be, and the extent there should be in-built safeguards to prevent these powers being abused by the Executive (see Elliott and Tierney and the House of Lords Constitution Committee for an introduction to this topic).

Long-term constitutional questions: 

The decision on brexit has thrown into stark relief a number of undercurrents of 'constitutional' disagreement that were probably already in play well before June 2016. As one author has recently described the situation:

the current crisis is one of ‘constitutional myopia’, resulting from decades of incoherent reforms and a failure to adequately address democratic disengagement; and that Brexit has merely exposed the extent to which the foundations of the constitution have been eviscerated. As such, Brexit provides a critical opportunity to return to first principles, not only to assess the extent to which constitutional ‘form ’ adequately reflects constitutional ‘practice’, but also to ask whether the extant institutions of the British state provide a vision of democracy that energises the citizenry. As bodies such as the Hansard Society and the House of Lords Select Committee on the Constitution have made clear, the moment is now upon us to have such a ‘national conversation’.

Some of the battlegrounds for this 'myopia' are reflected upon here.

(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 17^th 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 (eg see 'Democracy after Brexit, by Roger Scruton) 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.

(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)

(iii) Has the legal constitution has been diminished

Infamously, trust in the authority of professional expertise was derided during the Brexit campaign. The Brexit vote 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, and the replacement of the Human Rights Act has been regularly touted by many on the right of politics. 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. 

(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.