Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also 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. Continue reading

The EU’s negotiating strategy has worked so far, but it’s playing a risky game

patel.profile_imageIn a report published last week, Oliver Patel assesses the EU’s institutional and strategic approach to the Brexit negotiations, and considers what the EU wants from the process. Here, he summarises the core points of the paper and outlines how the UK has been outflanked by the EU’s negotiating tactics thus far.

October’s European Council summit represented ‘more of the same’ for the Brexit process. Although EU leaders were more cordial than in Salzburg, their fundamental position hasn’t changed: there must be some form of backstop which ties Northern Ireland to the Customs Union and Internal Market for goods, and it can’t be time-limited. Without this, there will be no withdrawal agreement. The ball is now in the UK’s court, they say.

The EU’s strategic approach to the Brexit negotiations resembles its usual approach to international negotiations: rigidity and inflexibility in the knowledge that it is probably the stronger party. Trade negotiators from third countries report that EU negotiators take a ‘relentless, dominant and uncompromising approach’. The Brexit negotiations have been no different.

The EU’s bargaining power was greater than the UK’s from the outset. The relative size of the two economies, their varying levels of economic dependence upon one another, and the likely negative impact of ‘no deal’ on the UK all indicate this. Continue reading