The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period of major political and constitutional upheaval following the EU referendum result on 23 June. Unsurprisingly Brexit and its implications feature prominently. The front page article is reproduced here. You can read the full issue at this link.
The months since the previous issue of Monitor was published on 9 June have been the most dramatic in post-war UK political history. The unexpected victory for Leave in the referendum on the UK’s EU membership sent shockwaves throughout the political system.
Within three weeks of that vote, David Cameron had left Downing Street and been replaced as Prime Minister by Theresa May. Three quarters of Labour MPs had voted no confidence in their leader, Jeremy Corbyn – and yet he sat tight, in open defiance of the traditional norms of parliamentary democracy. UKIP and the Green Party had both also entered leadership contests. Nicola Sturgeon had declared that a second referendum on Scottish independence was now ‘highly likely’.
Much of this issue of Monitor deals with the aftermath of the Brexit vote, including its implications for Westminster (see pages 2–3), Whitehall (page 6), the devolved administrations (page 10–11) and the EU (page 13). We also explore ongoing debates regarding the conduct of the referendum itself (pages 7–8). This introduction draws out five major constitutional themes.
First, the referendum and its aftermath demonstrate that popular sovereignty, not parliamentary sovereignty, is now the central principle of the UK constitution. The doctrine that parliament is the ultimate sovereign power in the UK (or, at least, in England – Scottish nationalists discern a different heritage north of the border) was asserted by the nineteenth-century constitutional theorist A. V. Dicey. The emergence of referendums since the 1970s had eroded that principle. The referendum in June, however, was the first in which the popular vote went against the clear will of the majority in the House of Commons. That most MPs feel bound to accept that decision shows where ultimate power in UK politics actually lies. There has been great debate over the summer as to whether parliamentary approval is needed to trigger Article 50 of the Lisbon Treaty and begin formal talks on Brexit (see page 12). But this has been something of a sideshow: even if the courts deem that parliament’s consent is needed, it is all but certain to be granted.
Second, the real debate now focuses on who should exercise power where the popular sovereign has not spoken. The electorate voted on whether to remain in or to leave the EU, but they were not asked, and therefore did not decide, what form Brexit should take. The degree to which that should be determined by parliament or by government, or perhaps returned to the people in the form of a second referendum, is now hotly contested. Ministers have repeatedly insisted that they are in charge of the Brexit negotiations and that to reveal their hand to parliament in advance would weaken their negotiating position. Many MPs, however – mostly, but not exclusively, Remainers – argue that, on an issue of such fundamental importance to the country’s future, parliament’s role should be pivotal. As the UK is a parliamentary democracy, it is reasonable to interpret the people’s message as having been sent to their elected representatives in parliament, whose duty in turn is – as usual – to instruct and hold the executive to account for the detailed implementation of policy.
How these arguments will be resolved remains unclear. Parliament’s constitutional position is strong: the treaties that will define the terms of Brexit and the UK’s future relationship with the EU, as well as the legislation to give those changes domestic legal effect, will all require parliamentary approval, and government will not want to antagonise parliamentarians in advance of those votes. Normal procedures for scrutinising European business are not expected to apply to the Brexit negotiations, so mechanisms for decisive parliamentary intervention during the course of those negotiations may be lacking. Nonetheless, a great deal can be achieved by other means. Parliament’s role as a public, representative arena where ministers are required to explain themselves (via questions, debates and statements) has potential to expose both splits and unclear thinking. Ultimately, how hard parliament pushes is likely to depend on the mood of the popular sovereign. The same applies to calls for a second referendum on the Brexit deal, made by prominent figures such as Labour leadership candidate Owen Smith and Liberal Democrat leader Tim Farron: parliament will agree to such a referendum only if there is evidence of a clear shift in the public mood on Brexit.
Third, any effects that Brexit might have on the future unity of the UK are on hold. Nicola Sturgeon has offered fighting talk on the possibility of a second independence referendum – both in the early days following the Brexit vote and again at the SNP’s October conference. Yet her actions suggest greater caution: she has published a draft bill for such a referendum, but has offered no timetable on further progress. Polls have shown no lasting shift in Scottish opinion on independence since the EU vote. Sturgeon will not call another referendum unless this changes, and – as we pointed out in May – post-Brexit Scottish independence may be a tough sell. Indeed, it could be in Northern Ireland rather than in Scotland that Brexit has the most destabilising consequences.
Fourth, if popular sovereignty is now the founding principle of our constitution, much greater thought is needed as to how that is best exercised when referendums are held. Research by the Electoral Commission finds widespread dissatisfaction on both sides of the Brexit debate with conduct of the EU referendum (see page 7). Constitution Unit researchers have argued that work is urgently needed to explore how that situation might be improved, and what the proper role for referendums should be (see page 15). Thought should also be given to how the public can be enabled to participate more deliberatively in politics.
Finally, the referendum result was driven more than anything else by the perception across large parts of society that the Westminster ‘establishment’ is deaf to their needs and concerns. The challenges posed by Brexit are acknowledged by almost everyone as very large. But the challenge of closing this deep political and social divide may be greater still.
Contributors to Monitor 64 include Andrew Cook, Justin Fisher, Jim Gallagher, Oonagh Gay, Daniel Gover, Robert Hazell, Michael Kenny, Jac Larner, Colm O’Cinneide, Alan Renwick, Meg Russell, Mark Sandford, Alan Whysall, Ben Worthy and Nick Wright. The issue was edited by Jack Sheldon.