You are here:   Features > Brexit and the UK constitution
 

The Blair government’s asymmetric devolution has made it more likely that the UK will need a new constitution to survive (©WORLD EONOMIC FORUM CC BY-NC-SA 2.0)


Little attention has been paid to the ways Britain’s unwritten constitution is shaping the Brexit process. Yet the unwritten constitution explains two things about our present condition — two things that point in diametrically opposed directions. On the one hand, the constitution made the decision to leave the European Union relatively easy. On the other, it is making the process of disentangling UK government from the EU far more difficult — indeed, at times, seemingly impossible. So tracing the consequences of an unwritten constitution helps to understand why it is both easier and far more difficult for the UK to leave the EU than it would be for any other EU member state. 

Deciding to withdraw — restoring parliament’s monopoly of final legal authority — exploited a crucial difference between an unwritten constitution and codified constitutions. Where nearly all codified constitutions draw a sharp distinction between the process of constitutional change and the ordinary law-making process, that is not the case in the UK.

Codified constitutions typically raise a special barrier around the process of constitutional change. And the reason for that is clear. Changing the constituent authority — i.e., the foundation of the state and the legislative process itself — is deemed to require a higher degree of popular consent than that provided by a simple majority principle.

Yet in the UK ordinary parliamentary legislation — resting on that majority principle — authorised a referendum on UK membership which those in favour of leaving the EU interpret as a binding rather than merely advisory vote. That has led the May government to invoke Article 50 and begin the process of constitutional change on the basis of a modest referendum majority. Of course parliament might have stipulated that the outcome — given its constitutional implications — required a far higher test than a simple majority. But it did not. Our habitual reliance on the majority principle when legislating in the UK parliament prevented any serious discussion of that question. 

Even the recent legal dispute about executive powers when invoking Article 50 (in order to announce our intention to leave the EU) did not really lead to such discussion. As a result, the decision to leave EU was relatively uncomplicated.

But what about the consequences of leaving? Does our unwritten constitution also simplify the process of leaving?

Far from it. As I have already suggested, withdrawing from the European Union would probably be easier for any other EU member state than it will be for Britain — and it is the unwritten British constitution which makes that so. Why? 

There is an almost primitive simplicity about the norm underpinning the British Constitution: “the sovereignty of the Crown in Parliament”. The normative content of our constitution is minimal when compared to that of the codified constitutions of other EU member states. It is only slightly mischievous to say that the British constitution can best be described as “what happens”.
View Full Article
Tags:
 
Share/Save
 
 
 
 
untenured
November 1st, 2018
12:11 PM
At the end of WWll, the UK elected to choose the delusion of socialism which doesn't require the existence of a constitution. Eventually Alastair Campbell seems to have taken on the role of Lord Protector, giving us Tony Blair as the figurehead of a clone of the U.S. political arrangement. Unlike the U.S. which is responsible for the global currency and can do as it pleases, the U.K. has one of the myriad crypto-currencies, and can do nothing to arrest its descent to oblivion. Alastair Campbell is leading the successful Resistance to Brexit. He knows what's best and can ignore the ruination of the statelets of the EU that used to be serial devaluers, but now just stuff their worthless IOUs into the ECB's balance sheet. "Yet in recent decades, especially since the Thatcher government, the UK government has itself become excessively centralised." Just another way of saying the socialists are in charge. Take a bow Mr. Serwotka and all the like-minded servants of our country.

Post your comment

CAPTCHA
This question is for testing whether you are a human visitor and to prevent automated spam submissions.