Brexit and its Aftermath

Sophie Loussouarn

• Publisher: Bloomsbury Academic
• Year: 2022
• ISBN:
  9780755640805
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica europea

The British referendum on the membership of the European Union on 23 June 2016 was a cataclysmic event in British and European politics. Years later the consequences are still unknown. This collection seeks to answer the key questions relating to the consequences of Brexit and the future of Britain. Will Brexit affect the British constitution? Is Brexit likely to lead to the breakup of the UK – with Scotland and Northern Ireland seeking independence? How will Covid-19 delay lingering political questions brought on by Brexit? These key questions and more, relating to both domestic and foreign policy, are answered by a range of contributors including expert academics, policy-makers and Members of Parliament and addresses both European and British policy-making.

Part I

Brexit, Political Parties, the British Constitution and the Union

1
Brexit and the British Constitution

Andrew Blick

Departure from the European Union (EU) is more than simply a matter of policy pursued within the context of a given system. It pertains to the system itself. Brexit rests on competing views of what the constitution of the United Kingdom (UK) is and should be; it has been connected with significant strains upon it; and it entails substantial and in some cases difficult-to-anticipate strains upon it. This chapter considers these various aspects. It groups the subject matter into three main themes: the sovereignty of Parliament; the relationship between direct and representative democracy; and the dynamic interaction between Brexit and a variety of associated tendencies and occurrences. It uses the term ‘Brexit’ to apply to a broad political episode, commencing around the time of the EU referendum in mid-2016 and continuing up to the time of writing (late 2020) and presumably beyond. ¹

Parliamentary sovereignty

Brexit as a project had a significant constitutional component. Objections from within the UK to participation in European integration had – long before the UK even joined – included the idea that to do so was undesirable from the perspective of the UK system. A core feature of such reservations involved the doctrine of parliamentary sovereignty. ² According to this traditional principle, the Westminster legislature is the supreme source of legal authority within the UK. The passing of an Act of Parliament, it is held, can accomplish any outcome whatsoever. The only limitations upon Parliament are self-imposed – what people within the institution judge to be practically and politically possible, and morally appropriate. This principle sets the UK apart from most other countries. A common international norm is for the ultimate legal force within a given polity to vest in an entity often known as a ‘written’ or ‘codified’ constitution. This text purports to be an expression of the will of the people – or popular sovereignty. It sets out some of the most important principles and rules of the system, provides a basis for key institutions of governance and the relationship between them, and regulates their relationship with the people, for whose rights it might provide. Changes to these rules are likely to require adherence to some kind of heightened amendment procedure, such as supermajority votes in legislatures or approval via referendum. The contents of the ‘written’ or ‘codified’ constitution are often enforceable by the judiciary, perhaps in a Supreme or Constitutional Court. Any action or legal measure found to be in violation of the text can be struck down. ³

The UK system allows for no such arrangements. Through an Act, the UK Parliament can, in theory, make or unmake any constitutional arrangement, however fundamental its importance, through regular legislative procedures using simple majority voting. Parliament was able, for instance, to incorporate the European Convention on Human Rights into UK law in 1998 (through the Human Rights Act). The following year it removed all but ninety-two hereditary peers from the House of Lords (through the House of Lords Act, which had the effect of reducing the size of the second chamber by more than 50 per cent, changing its party balance and meaning that it was predominantly composed of life appointees). ⁴ Furthermore, there is no specific single text against which the judiciary can assess the constitutionality of legislation and actions of public authorities or – if found to be non-compliant – strike them down. Advocates of the doctrine of parliamentary sovereignty support it on a number of grounds. They argue, for instance, that it provides for a degree of systemic flexibility that the amendment procedures of a ‘written’ constitution would lack. It is – so the argument runs – able, when the need for changes arises, to respond swiftly and incrementally, avoiding the rigidity and delay that eventually ends in more abrupt and disruptive transformation when the pressure for alteration can no longer be resisted. A further component of the case in support of parliamentary sovereignty is that it entails ultimate responsibility resting with a representative institution, Parliament, the pre-eminent component of which, the House of Commons, is directly elected, rather than with the judiciary, members of which are not directly accountable to the people in this way. Exponents of the doctrine in this sense make a democratic case for it. ⁵

European integration raised difficult questions about the viability of the principle of parliamentary sovereignty. It introduced a new source of law – the European institutions – into the UK system. If an Act of Parliament came into conflict with European law, then the latter prevailed. For the first time, a court could ‘disapply’ provisions of an Act of Parliament, if found to be non-compliant in this way. There was complex debate about whether parliamentary sovereignty had in fact been compromised. It was the case that the means by which European law formed part of the UK order was itself via an Act of Parliament, European Communities Act 1972, which Parliament could, if it chose, repeal – as it ultimately did through the European Union (Withdrawal) Act 2018. However, at the very least, the so-called doctrine of implied repeal was compromised. According to this traditionalist version of parliamentary sovereignty, if a later Act of Parliament conflicts with an earlier Act then it supersedes it, even if it does not expressly state that it is intended to do so. The European Communities Act, however, was protected from this kind of repeal and took priority over both earlier and later Acts of Parliament. Only by specifically stating that the 1972 Act was repealed was it possible for the European Union (Withdrawal) Act 2018 definitively to achieve this outcome. ⁶

Even for those who reject the idea that parliamentary sovereignty must encompass implied repeal, EU membership represented a practical limitation on the power of the Westminster legislature. That European integration posed a threat of some kind to the status of the UK Parliament was, then, a central component of objections to participation in this project. A concern often raised was that the UK might find itself incorporated into a European federation. Such opponents came from across the political spectrum, for instance, from the radical left of the Labour Party during the 1970s and 1980s. But from the 1990s onwards, the most significant source of Euroscepticism was the political right. Alongside their desire to uphold parliamentary sovereignty, they sought to bring to end any role for what they perceived as a foreign body, the Court of Justice of the European Union (or European Court of Justice, ECJ), in the determination of UK law. Such views linked to a zero-sum conception of ‘national’ sovereignty, according to which any formal pooling of powers in areas such as inward migration represented an unacceptable surrender of autonomy. The striking slogan employed by the Leave side in the referendum, ‘take back control’, was in part an allusion to such concerns. ⁷

For those of a populist-right inclination, exit from the EU could be part of a broader constitutional programme. An underlying theme of this project was a shift of power towards the electorate and those who were answerable directly to it, and away from supposedly unaccountable officials. It could encompass measures including restrictions of the scope of judicial human rights review under the Human Rights Act 1998, in accordance with the European Convention on Human Rights. ⁸ In theory, a constitutional reconstruction such as that envisaged by some within the Brexit camp would become more possible precisely because the UK had left the EU. The limitations that membership brought with it – and had proved objectionable for some because of their implications for parliamentary sovereignty – had to some extent provided an equivalent to the ‘written’ constitution that the UK lacked. As Vernon Bogdanor has noted, it was particularly notable that the UK removed itself from the protections provided by the European Charter of Fundamental Rights and made no attempt to copy it across directly into UK law at the time of Brexit, as it did with other provisions that arose from EU membership. ⁹ The assertion of a purer form of parliamentary sovereignty might lead to a circumstance in which the UK constitution was – from the perspective of the UK Parliament – a more malleable entity. Yet, as discussed further, in the period since the UK first joined the European Communities in 1973, other points of political authority had appeared which might make the practical exercise of this power problematic.

Direct and representative democracy

Brexit was executed partly in the name of parliamentary sovereignty. Yet, ironically, it was achieved using a device – the referendum – that presented a practical challenge to the status of the Westminster legislature and was opposed at the time of this vote by majorities in both Houses of Parliament. ¹⁰ The use of referendums for the making of major decisions in the UK dates to 1973. In the intervening period, thirteen such votes have taken place, ten of which were held at sub-UK level and three of which across the whole country. Of the three, the first (in 1975) and third (in 2016) were held on the subject of whether the UK should continue to take part in continental integration. Generally, referendums have been held on subjects of a constitutional nature – such as the possibility of establishing devolved institutions in a given part of the UK; the electoral system used for the House of Commons; or whether a particular territory should secede from the UK. They are sometimes employed in an effort to resolve issues that create divisions across the usual political lines and over which the governing party is divided. In 1975, the Labour administration of Harold Wilson held a popular vote on European Communities membership, a subject over which his Cabinet could not agree. In 2016, the Conservative Cabinet of David Cameron was similarly split. He had first committed to it in 2013, and it seemed to be for him a means of party management rather more than a means of enabling the public to make a decision. Cameron appears to have anticipated winning, and his government made only limited preparations for the advent of a Leave result. ¹¹

In both the 1975 and 2016 cases, it proved necessary to suspend a key rule of the UK system of government, collective Cabinet responsibility. According to this principle, while senior ministers can debate matters frankly in private, once a decision is reached they must retain a united public front, whatever their private views may be. In the case of the European referendums of 1975 and 2016, though the government made a formal recommendation in favour of continuing membership, government ministers were allowed to campaign on either side. This suspension had further constitutional consequences, raising complex issues regarding the relationship between dissenting ministers and their civil servants, who were by implication faced with the divergence between the individual politicians to whom they were accountable and the government for which they worked. ¹²

While it is possible to discern certain patterns in the usage of referendums in the UK, a firm and shared underst...