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.
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.
Joining the EU created an obvious constitutional conflict between the concept of parliamentary sovereignty and the EU which was a higher legal order, whose enactments take precedence over domestic legislation.
There are two interpretations of how that conflict was resolved. The first was offered by the UK government when it passed the European Communities Act 1972 (the EC Act). This required all future legislation to be construed so that it would be in accordance with European law, so preserving the sovereignty of Parliament. Lord Hailsham, Lord Chancellor at the time, declared that it was ‘abundantly obvious, not merely that this Bill does nothing to qualify the sovereignty of Parliament but that it could not do so’. Even Dicey, however, did not hold so extreme a view. He believed that a sovereign could, if it so chose, abdicate. The fact that a monarch, for example, enjoyed sovereign power did not mean that the monarch could not, if they so chose, abdicate his/her powers.
Neither Parliament nor government sought to answer the question – suppose that UK legislation cannot be construed so as to be in accordance with European law. Fortunately perhaps, that issue never arose. But, in the landmark case R v Secretary of State for Transport, ex p. Factortame Ltd (No. 1), the House of Lords, acting in its judicial capacity, disapplied part of the Merchant Shipping Act of 1988 which, inadvertently, conflicted with EU law. The House of Lords, therefore, was acting as a constitutional court for the European Communities, judicially reviewing an Act of Parliament, something previously thought to be impossible. The idea of a constitutional court was itself a wholly new concept in UK law.
The second interpretation, therefore, is that parliament abrogated its sovereignty when it passed the EC Act, which made for a structural change in the British constitution. As the majority of the Supreme Court declared in R (on the application of Miller) v the Secretary of State for Exiting the European Union, the Act had ‘provided for a new constitutional process for making law in the United Kingdom’.
The Charter of Fundamental Rights
The effect of the EC Act was strengthened following passage of the EU Charter of Fundamental Rights, incorporated into EU law in consequence of the Lisbon Treaty. This allowed the courts to do something that the Human Rights Act did not, namely disapplying UK law relating to human rights. This was a revolutionary development in British government, and it first bore fruit in Benkharbouche v Secretary of State for Foreign Affairs. Lord Sumption, speaking for a unanimous panel of the Supreme Court, declared that in the event of a conflict between EU and domestic law, precedence must be given to the former, and so the latter must be disapplied.
The Charter, however, is not, unlike almost the whole of EU law, being incorporated into UK law in the European Union (Withdrawal) Act 2018. Therefore, fundamental rights such as the right not to be discriminated against or the right to healthcare, will in future depend not on the courts, but on Parliament. The remaining 27 member states of the EU will of course continue to be constrained by the Charter. This raises the obvious question – are our MPs so uniquely sensitive to human rights matters that they, unlike legislators in the 27 remaining member states, can be entrusted with this vital function? ‘Taking back control’, therefore, means not only taking back control from the EU, but also from the courts to the legislature which is usually (although not currently) controlled by the executive.
Brexit has given rise to a constitutional conflict between the UK government in Westminster and the devolved governments in Edinburgh and Cardiff (there is of course no government in Northern Ireland at present). This reached its peak when the Supreme Court heard arguments on whether or not a Scottish Bill that purported to legislate for post-Brexit Scotland was within the powers of the Scottish Parliament. The key question in that case was whether or not powers in areas devolved to Scotland but currently subject to EU law, would return to Edinburgh or Westminster after Brexit. The UK government’s position was that if the Scottish Bill were upheld, it would fracture the internal market of the UK and make it more difficult to negotiate trade deals since it would not be able to guarantee that its terms would be respected in all four parts of the UK.
The Scottish Parliament argued that the Withdrawal Act violates the Sewel Convention. But, although this has been embodied in statute, the Supreme Court decided in the Miller case that this convention was not justiciable, though it declared that it was an ‘entrenched convention’, a phrase whose meaning is not entirely clear.
The Welsh government has proposed that a Council of the British Isles be established, on which the British government and the devolved bodies would be represented. Laws altering the devolution settlement would then, so the Welsh argue, require the consent of at least one of the devolved bodies. This would mean that the three devolved bodies, acting together, could veto proposed UK legislation in this sphere. It is, however, not clear who would represent England in this arrangement, since England has no devolved body parallel to that in the non-English parts of the United Kingdom. And of course, such an arrangement would not be compatible with the sovereignty of Parliament.
The conflict over devolution demonstrates the need for clear and perhaps enforceable guidelines on how the devolution settlement should operate in practice. In 2015, the Bingham Centre in a report on the constitution advocated a Charter on devolution as a prelude to a codified constitution.
Joining the EU had a profound impact on the British constitution. Brexit could prove just as revolutionary. For it has created a state of uncertainty in three key areas of the UK constitution: the use and effect of referendums; the protection of fundamental rights; and devolution.
Perhaps, therefore, Brexit might prove a constitutional moment for the UK, leading to the creation and adoption of a codified constitution so aligning Britain with almost every other democracy.
The arguments presented in this blog are a summary of those made during an event co-sponsored by the Constitution Unit and the UCL European Institute, entitled Brexit and the Constitution. For a fuller argument and exploration of these issues, see Professor Bogdanor’s new book Beyond Brexit: Towards a British Constitution.
First published by The Constitution Unit at UCL