Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also an opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.
During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.
At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.
The effects of the European Communities Act on the UK constitution
The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin.
Joining the EU created an obvious constitutional conflict between the concept of parliamentary sovereignty and the EU which was a higher legal order, whose enactments take precedence over domestic legislation.
There are two interpretations of how that conflict was resolved. The first was offered by the UK government when it passed the European Communities Act 1972 (the EC Act). This required all future legislation to be construed so that it would be in accordance with European law, so preserving the sovereignty of Parliament. Lord Hailsham, Lord Chancellor at the time, declared that it was ‘abundantly obvious, not merely that this Bill does nothing to qualify the sovereignty of Parliament but that it could not do so’. Even Dicey, however, did not hold so extreme a view. He believed that a sovereign could, if it so chose, abdicate. The fact that a monarch, for example, enjoyed sovereign power did not mean that the monarch could not, if they so chose, abdicate his powers.
Neither Parliament nor government sought to answer the question – suppose that UK legislation cannot be construed so as to be in accordance with European law. Fortunately perhaps, that issue never arose. But, in the landmark case R v Secretary of State for Transport, ex p. Factortame Ltd (No. 1), the House of Lords, acting in its judicial capacity, disapplied part of the Merchant Shipping Act of 1988 which, inadvertently, conflicted with EU law. The House of Lords, therefore, was acting as a constitutional court for the European Communities, judicially reviewing an Act of Parliament, something previously thought to be impossible. The idea of a constitutional court was itself a wholly new concept in UK law.
The second interpretation, therefore, is that parliament abrogated its sovereignty when it passed the EC Act, which made for a structural change in the British constitution. As the majority of the Supreme Court declared in R (on the application of Miller) v the Secretary of State for Exiting the European Union, the Act had ‘provided for a new constitutional process for making law in the United Kingdom’.
Image by , CC BY-SA 3.0.
The Charter of Fundamental Rights
The effect of the EC Act was strengthened following passage of the EU Charter of Fundamental Rights, incorporated into EU law in consequence of the Lisbon Treaty. This allowed the courts to do something that the Human Rights Act did not, namely disapplying UK law relating to human rights. This was a revolutionary development in British government, and it first bore fruit in Benkharbouche v Secretary of State for Foreign Affairs. Lord Sumption, speaking for a unanimous panel of the Supreme Court, declared that in the event of a conflict between EU and domestic law, precedence must be given to the former, and so the latter must be disapplied. The Charter, however, is not, unlike almost the whole of EU law, being incorporated into UK law in the European Union (Withdrawal) Act 2018. Therefore, fundamental rights such as the right not to be discriminated against or the right to healthcare, will in future depend not on the courts, but on Parliament. The remaining 27 member states of the EU will of course continue to be constrained by the Charter. This raises the obvious question – are our MPs so uniquely sensitive to human rights matters that they, unlike legislators in the 27 remaining member states, can be entrusted with this vital function? ‘Taking back control’, therefore, means not only taking back control from the EU, but also from the courts to the legislature which is usually (although not currently) controlled by the executive.
Devolution
Brexit has given rise to a constitutional conflict between the UK government in Westminster and the devolved governments in Edinburgh and Cardiff (there is of course no government in Northern Ireland at present). This reached its peak when the Supreme Court heard arguments on whether or not a Scottish Bill that purported to legislate for post-Brexit Scotland was within the powers of the Scottish Parliament. The key question in that case was whether or not powers in areas devolved to Scotland but currently subject to EU law, would return to Edinburgh or Westminster after Brexit. The UK government’s position was that if the Scottish Bill were upheld, it would fracture the internal market of the UK and make it more difficult to negotiate trade deals since it would not be able to guarantee that its terms would be respected in all four parts of the UK.
The Scottish Parliament argued that the Withdrawal Act violates the Sewel Convention. But, although this has been embodied in statute, the Supreme Court decided in the Miller case that this convention was not justiciable, though it declared that it was an ‘entrenched convention’, a phrase whose meaning is not entirely clear. The Welsh government has proposed that a Council of the British Isles be established, on which the British government and the devolved bodies would be represented. Laws altering the devolution settlement would then, so the Welsh argue, require the consent of at least one of the devolved bodies. This would mean that the three devolved bodies, acting together, could veto proposed UK legislation in this sphere. It is, however, not clear who would represent England in this arrangement, since England has no devolved body parallel to that in the non-English parts of the United Kingdom. And of course, such an arrangement would not be compatible with the sovereignty of Parliament.
The conflict over devolution demonstrates the need for clear and perhaps enforceable guidelines on how the devolution settlement should operate in practice. In 2015, the Bingham Centre in a report on the constitution advocated a Charter on devolution as a prelude to a codified constitution.
Conclusion
Joining the EU had a profound impact on the British constitution. Brexit could prove just as revolutionary. For it has created a state of uncertainty in three key areas of the UK constitution: the use and effect of referendums; the protection of fundamental rights; and devolution.
Perhaps, therefore, Brexit might prove a constitutional moment for the UK, leading to the creation and adoption of a codified constitution so aligning Britain with almost every other democracy.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. It first appeared on the Constitution Unit blog. For a fuller argument and exploration of these issues, see Professor Bogdanor’s new book Beyond Brexit: Towards a British Constitution.
Professor Vernon Bogdanor is Research Professor at the Centre for British Politics and Government
Constitutional matters are always of considerable importance, being the basis from which all else is legally assumed to flow. As a matter of course, partisan politics is rarely excluded from having a say in constitutional issues. The wish for a written Constitution for the UK is something dear to the hearts of would-be reformers of certain partisan political persuasions. Whereas some would emphasise Common Law, the Magna Carta and the 1699/89 Bill of Rights, others would seek to paper over the past so as to endeavour to force a new frame of legal reference to suit partisan political interests. The EU, in its wisdom, has sought to override precedent by setting its own precedent in concrete, by means of its Acquis Communautaire. By this means and like ways, a new precedent has been created which clashes with hundreds of years of consensus seeking and the finding of solutions which were,if not always acceptable, were at least tolerable. The UK has long been a law unto itself, in fact going back a few thousand years. William the Conquerer did not extinguish Common Law. He might be said to have put his seal on it, in fact to have had a hand in allowing it to be what it has become. Common Law in Britain cannot easily be overturned or ignored, however much those wishing for a written Constitution to be introduced in Britain would like it to be done away with. Napoleonic Law has never held sway in the UK until the latter years of EU dominance. It does not fit the mould of the British system, nor does Britain and the British people fit into the Napoleonic/EU mould of Acquis Communautaire wherever it seek to obliterate a millennium or two of legal precedent. One may say that national sovereignty is relative and that a monarch or a sovereign Parliament may abrogate its sovereignty, but thereby one asserts that national sovereignty does not derive from the people who make the nation-state whose sovereignty is one to be made relative, and one asserts that a Parliament which has a right to abrogate its sovereignty, partly or wholly, does not derive its sovereignty from the people and the nation it represents. As for a monarch who would abrogate his/her sovereignty, in such a case it would be a meaningless sovereignty if it did not then refer back to the nation.
The entire argument for a written Constitution in Britain, it appears, sofar, is an argument against two thousand years of legal history.
I think your comment would be better with ‘Britain’ and ‘UK’ replaced with ‘England’.
The Scottish legal system is entirely different and there certainly hasn’t been 2,000 years of legal history of the UK. Indeed the UK under its present borders is less than 100 years old.
I do think your comment is valuable in showing why we do need a written constitution: Scotland and the other countries in the Union are regularly ignored. If the UK is going to continue that needs to change.
Yes Andrew, Scotland is still part of Britain and the UK. Scotland voted as part of the UK in the Brexit referendum. If Scotland were to vote for independence, you would be right at once. In matters of UK sovereignty, however much the law in Scotland is different from England, the longer tradition and history will, if there is no break with that long tradition and history, prevail. The English Magna Carta and Bill of Rights are part of a written Constitution which in times like these have a bearing on the UK, or if NI gets hived off, Great Britain. Though May’s government has pointedly ignored constitutional issues, she has negotiated, if that is the word-maybe we should say capitulated- on behalf of the UK. Indeed, she has made a point to keep the DUP on side by including NI and asserting that NI will not be carved out of the UK. On that latter score, or any, I would not trust May for a second, but still, the point remains, if it weren’t for Brexit, constitutional matters would be kept buried as much as possible by the globalist-EU federalist political operatives in charge now. For the EU philes, which appears to cover pretty much the entire Parliament, the UK(English) Constitution is an embarrassment. Let us assume Brexit happens, properly. As far as citizens rights is concerned, any confirmation or re-enstatement of ancient citizens rights in the UK based on the Magna Carta, the Bill of Rights, Statute Law, Common Law and precedent generally is not going to exclude the Scottish UK citizens, as far as I can see. Inter alia, I was and am much in favour of Scottish independence, if it helps. But, point taken, I should have made mention of the long and turbulent history of the Britiah Isles constitutionally speaking.
@Jacob, I think perhaps you prove Andrew’s point. If you are English I suppose you are entitled to regard Magna Carta as being a fundamental part of an ancient English constitution. People are entitled to their national legends, even if Wikipedia attributes this particular one to Sir Edward Coke in the 17th century. ( https://en.wikipedia.org/wiki/Magna_Carta ) . But the Scots are also entitled to their national legends and they would probably prefer to cite the Declaration of Arbroath as the fundamental part of their ancient constitution.
I am English and not at all Scottish, but I think of my British identity as being more important. An important part of that is the recognition that other parts of the UK also have their history and traditions which are as valuable as England’s. If English people were better at this, perhaps there would not be so much need for a UK written constitution which protects the smaller nations.
Alias, in a general sense I agree with you, but I answered Andrew correctly, imo. We are getting at cross purposes if we don’t keep the now separate issues in different perspectives. The author here in question did not mention the Declaration of Arbroath, that I can see( but I will read it again). If that Declaration, or any part of the Scottish Constitution at all, is in anyway pertinent to the issue at hand, the Brexit negotiations with the EU, by all means, that must be included in this here debate. Someone may enlighten us on that. If I have got it wrong, so be it, but for the moment I am not aware that Scotland on its own is party to the Brexit negotiations and the issue of a proper Brexit versus Brino.
@Alias. Right. I can see where You and Andrew jumped the gun, in a way, which I didn’t pick up on, whereas I automatically took the position that devolution is a matter to be decided post-Brexit. All along I have taken the position that the UK voted on this as one country, since the UK is an EU member, not the more or less devolved member-countries and other entities in the UK. Does the Scottish Constitution, as far as it goes, in any way influence the other entities in the UK, and if it does, to what extent? Do the Magna Carta, the Bill of Rights, Common Law and Statute Law only hold sway in England? That would surprise me. Answers on the back of a penny black, please. More research needed.
“Do the Magna Carta, the Bill of Rights, Common Law and Statute Law only hold sway in England? That would surprise me.” I think you might well be surprised about how rich a tradition of its own Scots Law has! My understanding is that common law and statute law exist in Scots law too, but have different traditions, many dating back to before the Act of Union which assures the continuance of Scots Law to the present day.
I suppose a lot of nations think their glorious tradition is better than anyone else. We can probably all agree on finding it rather irritating when Americans seem to think the USA have the exclusive patent on freedom of religion or democracy. (Not least because they do their own forefathers in the colonies an injustice, who helped to evolved many of these things before George Washington was born.) The Scots have their own glorious tradition, the English too, and so do the Americans. Perhaps we can leave it at that.