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PART I
BREXIT: PROGRESS, PROCESS AND ISSUES
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1
BREXIT AND THE QUESTION OF THE UK CONSTITUTION
A. C. Grayling
These words are being written in the summer of 2018, two years after the referendum on membership of the European Union (EU) which precipitated a ‘Brexit’ process, and more than a year since notification was given to the EU of the United Kingdom government’s intention to take the UK out of the EU.
These words are written within weeks of the UK government submitting proposals to the EU for arrangements to follow the UK’s departure, proposals known as ‘the Chequers Plan’ following a weekend meeting at the Prime Minister’s country residence, where agreement among senior members of the government was temporarily reached on what those proposals should be. Within days that consensus ended, along with resignations by cabinet members who objected to it.
The main points of the proposals had been aired on a number of occasions before they were formally presented to the EU, and the EU had already made it plain that they were unacceptable, since they required the EU to compromise central and constitutive features of its structure as a single market within a customs union, with common standards, a number of shared institutions and recourse to a common court of justice for adjudication of disputes and questions about treaty obligations.
Therefore as these words are written, so long after the two events mentioned, there is no agreed plan for what follows departure of the UK from the EU. Complete uncertainty prevails. Serious questions relate to Ireland and Gibraltar. Business is in an anxious state; many companies have already begun to move all or part of their operations to EU countries. The transport industry, and all those industries reliant on just-in-time supply chains, face major questions about their immediate future. Large numbers of skilled EU nationals employed in the National Health Service have departed from the UK, leaving thousands of NHS posts unfilled. Farmers are concerned about the availability of migrant seasonal labour. Evidence, much of it provided by the UK government itself in very belated ‘impact studies’, of a Brexit’s deleterious effects on the UK economy has continued to mount throughout the period in question, showing that warnings given before the 2016 referendum about such effects underestimated the potential harm.1
Correlatively, public opinion has moved increasingly against Brexit, as YouGov and other polling results show.2
Such is a sketch of the situation as these words are written. To the author of them only one thing has emerged with stark clarity from the EU referendum of 2016 and subsequent events, and only one clear prediction about what will inevitably follow whatever the outcome of the Brexit endeavour. The point of clarity is that the constitutional order of the UK is in disarray, and its frailties exposed. The prediction is that this will have to be fully addressed and remedied once circumstances permit. The claim is this: had the relevant features of the UK’s constitution functioned in accordance with established understandings, a Brexit process would not have begun, and the confused and disorganised self-harming situation in which the UK found itself as these words were being written would have been avoided. The fact that this situation arose is evidence that the constitutional order of the state is dysfunctional. The following sets out the considerations in support of this claim.3
Certain preliminaries must be noted. One is that, familiarly, the UK has an uncodified constitution, consisting partly in statute and some written conventions (e.g. the Statute of Westminster of 1931 granting Dominion Parliaments a say in matters relating to succession to the crown) and partly in unwritten conventions and understandings. These latter were described by Mill as forming the ‘morality’ of the constitution, whose force is such that it prevents the use of those powers which, though constitutional, such as the monarch’s veto in relation to legislation by Parliament, are inconsistent with what is regarded as acceptable in the political and governmental life of the nation. All authorities on the constitution from Bagehot and Dicey to Jenner and Bogdanor agree on the principal that Parliament is the sovereign body in the state, though since accession to the European Economic Community (EEC) in 1973 and subsequent treaties among party states, in which the exercise of some aspects of the UK Parliament’s sovereignty are shared with those states; since devolution of various functions of government to Northern Ireland, Scotland and Wales, in which the exercise of some aspects of the UK Parliament’s sovereignty in respect of those territories are devolved to the authorities constituted for them; and since the taking effect in 2000 of the Human Rights Act 1998; aspects of sovereignty have been voluntarily self-limited by Parliament, but not forfeited, since Parliament has the power to resume its competence in any or all those cases by repealing any or all of those provisions. It therefore remains the supreme sovereign body.4
In light of this fundamental principle – Dicey wrote, ‘The constitution is the sovereignty of Parliament’ – it is understood that a referendum does not override the will of Parliament. Referenda are and can only be tests of public opinion, and cannot be binding on Parliament. Members of Parliament (MPs) were reminded of this principle in House of Commons Briefing Paper 07212 §§ 5 and 6 in June 2015, shortly before debate on the EU Referendum Bill began in the House of Commons that month. The principle was reiterated by the Bill’s introducer, the Minister for Europe Mr David Lidington, on the floor of the House of Commons on 16 June 2015; he stated, ‘the legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory’.5 Accordingly it was clearly understood that the referendum was a consultative exercise, and neither could nor should – in constitutional terms – be regarded as overriding the competence of Parliament as to what action it should take in light of whatever its result was. In the event, the government chose to regard the outcome as politically mandating, because the Prime Minister in office at the time of the referendum had issued a leaflet to all households saying that the government would abide by the outcome.
We note in passing at this juncture that because, in the current state of the UK constitutional order, the executive is drawn from the majority in the dominant part of the legislature, viz. the House of Commons, it is able to act as if it (i.e. the executive) is the sovereign body in the state, because it has a high degree of confidence that it can whip the support of the majority from which it is drawn.6 However, the conjunction of the referendum’s apparent outcome (see below) and the political decision to treat it as mandating action in accordance with that outcome independently of and irrespective of Parliament, raises the question to be discussed below.
Let us first note certain features of the 2016 referendum itself. The franchise for participation in the 2016 EU referendum excluded – after discussion of the matter prior to introduction of the EU Referendum Bill in Parliament – 16 and 17-year olds, expatriate British citizens who had lived abroad for more than a certain number of years, and EU citizens resident in the UK and paying their taxes there. It would seem obvious that all three groups merited inclusion as having a very material interest in the outcome of the vote. In the franchise for the Scottish independence referendum of 2014, 16–17-year-olds had the vote and so did EU citizens resident in Scotland, for precisely this reason.
No threshold was specified for the outcome of the referendum, unlike the 1979 Scottish devolution referendum which required that 40% of the entire electorate should be in favour for any change to take place. The reason given for there being no threshold requirement in the EU referendum, as House of Commons Library Briefing Paper 07212 and the Minister for Europe, on the floor of the House, both explicitly stated, was that the referendum was advisory only, and would not be binding on Parliament or government.
It can be taken for granted that two principal features of an uncodified constitution in which understandings govern the ‘morality of the constitution’, to use Mill’s phrase, are consistency and clarity. The inconsistency in the formulation of referenda, as exemplified by the differing franchises and the presence in some but not others of threshold requirements, immediately raises questions about their propriety. If the franchise, conditions and consequences of referenda vary from one to the next, there cannot be said to be a clear ‘understanding’ governing their use in the constitution.
Inconsistency and unclarity is pervasive in the UK constitution. A Trades Union must secure a vote of at least 40% of its entire membership if it wishes to call a strike, otherwise the strike is illegal. A general election cannot be called outside the fixed term of a Parliament unless 66% of the total body of MPs agree. This high bar is set because an election might result in a change of government and therefore a change in the course of the country’s affairs. A decision about EU membership has far greater implications for the future of the country’s affairs, and yet no threshold or supermajority requirement was put in place. The inconsistency here is stark.
In the case of the 2016 EU referendum, although it was inconsistent both with previous referenda and with the reasoning lying behind threshold and supermajority requirements in respect of other constitutional activities, there was at least (temporary) clarity as to its outcome: MPs were ex...
