Public Law
Post 'Brexit'
Abstract
This paper will focus on the constitutional challenge that Brexit has posed and whether there is a need for the United Kingdom to adopt a written constitution.
On 23 of June 2016, a majority[1] of the UK electorate voted at a national referendum to leave the European Union. Since then, Government, Parliament, and Courts[2], have tried to deliver[3]what the majority has requested, stretching the limit of their respective powers.
“Brexit” has highlighted a lack of certainty about:
- The costitutional arrangements as we know
- The reletions with the EU
- The process of withdrawal
- The referendum role and its value
- The devolved institution's role
- The value of conventions
- The political use of conventions
- The Balance Between executive and legislative power
- Conclusion
all arguments emerged in the judicial and political debate.
1. The costitutiona arrangement as we know
First, a Constitution represents a framework that defines, legitimates and regulates a State, indicating the limit of each institution’s power and duty[4].
Three principle have inspired constitution:
- the separation of power
- the role of law
- the supremacy of parliament.
The doctrine of the separation of powers underpins how a state prevents abuse. Modern constitutions have divided the original absolute powers between the essential ‘organs of state’: the legislative, executive, judiciary[5].
The rule of law is a set of principles which governs how the legal system should operate and how the state control is powers. A.v. Dicey stated accordingly: ‘Every Official from the Prime minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.’[6].
Finally, the parliament sovereignty doctrine collocates the parliament in a prominent position among the Constitutional organs, because the citizen directly elects it.
In the UK to prevent constitutional deadlock, the parliament sovereignty has reached such extension that allows the assembly to override other power of the state[7].
2. The relations with the EU
After the U.K. joined the EU in 1973, the parliamentary supremacy has been compressed by the EU law that has constituted an independent and overriding source of domestic law[8].
Since then, the sources of the British constitution are specifically: international/European law; domestic law; non-legal sources as Constitutional Conventions and authoritative opinions.
However, the parliament and the Judiciary power contrasted the process of integration since the beginning. Both parties were determined to retain their role[9].
Not just the legislative power was overridden, but also the European Supreme Court has acquired superior status in term of the last grade of justice.
Parliament with the European Union Act 2011 has reaffirmed the dualist nature of the United Kingdom, by which any treaty ratified by the Government does not alter the laws of the state unless and until it is transposed into national law by legislation.
The vote to leave the European Union questioning again the equilibrium between the legislative power and the executive maybe has demonstrated that the ‘unwritten constitution’ has created a lack of certainty[10].
3. The process of withdrawal
The decision to trigger Article 50 by March 2017 after the referendum, using the royal prerogative was considered a rejection of the doctrine of parliamentary supremacy[11].
It is crucial to understand that the Royal Prerogative gives at the government the right to exercise power without the consent of the Parliament or Court.
Not defined in the constitutional arrangements, Dicey defined it as a residue of the discretionary authority of the crown[12]. It is impossible to create new ones and, if the parliament legislates on a matter that had previously been the prerogative of the Crown, extinguishes that prerogative[13].
On our case, the government would have had the right to trigger art. 50, by sending the formal notice to the European Parliament.
However, the case reached the Court[14]that has defined the questions: ‘whether a formal notice of withdrawal can lawfully be given by ministers without prior legislation passed in both house of Parliament and assented to by HM the Queen.’
Article 50, Lisbon treaty 2007, prescribed that a member state must give irrevocable notice to withdraw, instigating two years terms to negotiate the Exit.
In the UK, the government royal prerogative is recognised to adhere or withdraw international treaty[15] but, the Crown cannot use the prerogative to alter the common law when it affects the rights of the citizen[16].
On those principles, the court has reaffirmed that joint the EU has introduced by the fact a new constitutional process for making law in the UK, affect the right of the citizen.
The Secretary of State, evoking the dualist theory, has resisted arguing that the power to make or unmake treaties is exercisable without legislative authority and is not reviewable by the court because international law operates in independent spheres.
Lord Reed, a dissented judge, expressed the same opinion and quoted two decision as support: Court of justice in Van Gen en Loos (case C-26/62)[1963] ECR 1, 12 and Costa V Enel (case C-6/64) [1964] ECR 585, 593.
In his logic, the cases demonstrate that rules which would be incompatible with UK constitutional principles have become part of our constitution not for the 1972 Act itself, but because accepted in force of the 1972 Accession Treaty, an international agreement.
However, the Court held that the notification to withdraw from the Eu treaties required primary legislation because the unilateral decision by the executive would have affected the constitutional arrangement of the UK and ultimately on his citizen. The prerogative powers cannot be invoked to withdraw from the Eu treaties. The Secretary of State arguments rejected.
The court with this decision may have implied a new un-British legal concept of actions, instructing the government on how to proceed in this situation[17].
Court also underlines the value of the referendum itself.
For most, the result of the referendum should be treated as merely advisory, because the 2015 Act that ensured the referendum was silent on the process that would follow a vote to leave[18].
4. The referendum role and its value
The referendum is a relatively new instrument in the UK since now there have been three national referendums: On EEC membership in 1975, on the parliamentary election voting system in 2011, and EU membership in 2016.
Generally, the effect of the referendum must depend on the terms add in the statute which authorises it. Moreover, the statute provides also for the consequences on the result.
It was not the case with the 2016 referendum. However, the Constitution committee[19]since 2011 specifies that based on the UK constitutional arrangement it is unlikely to define what a constitutional referendum is, expressing concern on the use of the referendums stated:
‘In particular, we regret the ad hoc manner in which referendums have been used, often as a tactical device, by the government of the day. Referendums may become a part of the UK's political and constitutional practice’.
The Parliament has now surpassed the argument, opting to confirm the result of the referendum, but once again it is symptomatic of the fibrillation that Brexit caused.
5. The devolved institution's role
The third argument considered by the court; it is what effect the withdrawal from the EU will have on the competence of the devolved institutions. At the moment, the devolved institutions have to comply with EU law, unless a new law will introduce a different mandate[20].
Properly, this raises a foreseeable concern about the use of Westminster supremacy power in case the devolved countries keep legislating conforming with EU principles, to amend it.
As reinsurance, the Sewel convention states that the consent of the regions will be requested before passing legislation that will have an impact on them. This mechanism, if respected, should prevent any conflicts[21].
6. The value of conventions
However, the Sewel Convention is just a convention, and also if embodied in the Memorandum of Understanding between the UK Government and the devolved executives, it is not intended to be legally binding.
Constitutional conventions are customs or historical practices which determine what will happen in certain circumstances. The empowered authorities recognise them, but they are not legally binding in courts, also if they may represent a moral obligation[22].
Once again, the absence of a written constitution leave uncertainty on the matter and, devolved countries have to trust their capacity to coordinate and ensure a high level of protection against possible abuse.
7. The political use of conventions
The main issue in here it is the absence of a higher hierarchy for the constitutional legislation and the fact that it is nothing written to prevent these various rules from coming to conflict[23].
Before arguing, if a written constitution would have a better outcome, it is appropriate to report the improper use of conventions by the suppose impartial speaker of the chamber during those days.
John Bercow quoted a convention dates back to 1604 to hold another vote on the Brexit bill[24]. The convention has prevented the reintroduction of measure that was “the same in substance” to one had already voted in the same parliamentary session.
The Speaker, chief officer and highest authority of the House of Commons in this situation has not respected his role, taking a political decision[25].
This episode has shown, once again, how in a non-written constitution some unexpected outcomes can be materialised from nowhere. What peculiar in this occasion, is the fact that once again a convention has played a fundamental role, if not constitutional, without any doubt political[26].
8. The balance between executive and legislative power
Nevertheless, the UK as maintained is a peculiar balance between parliament and the crown not by a written constitution but by a combination of legal and non-legal source written as statement and not-written as conventions.
Instead, most of the Country to solve a conflict between an established power and his citizen[27]have adopted a written constitution, leading many authors to attribute at the constitution a transcendent role, till embrace the nation’s values[28].
Constitutions can be classified in many different ways, but what matter is the purpose, the content, and operation of each one of them[29]. In this sense, the constitutions prevent the state from abusing its powers and safeguards the rights of the individual.
Constitutions have to be rigid, otherwise, the government will change it, but if it is too strong, then it cannot be amended to reflect changes in society. Between those poles oscillated the written and unwritten constitutions.
From one hand, a written constitution is a single document, provides a clear statement of how the state operates and, has section dedicated to the protection of the individual rights.
To the other hand, a non-written constitution has the advantage to be flexible and responsive to the changing circumstances, leave the state free to develop the law and encourage the evolution of the constitution[30].
Nowadays, States that have adopted a written constitution are trapped in It. The new era that is changing the way we communicate has raised lots of questions on the adequacy of the mechanism created to guarantee democracy in another century.
In the UK, a soft shift from a powerful monarch to representative democracy has influenced the constitutional arrangement, and recent History let us affirm that this process is still going:
- The proposal for an elected House of Lords, replacing appointment by the Prime Minister with one elected by the people 2011[31]
- the fact that the Queen still a formal member of all three organs of the State
- the recent establishment of the Supreme Court in 2009 which replace the House of Lords[32].
Under this perspective, Brexit as shown that an unwritten constitution maybe caused a political crisis but has worked[33].
A constitutional crisis occurs when there is a contradiction between elements of the state, which is not capable of easy resolution because it cannot be predicted or managed[34].
However, the constitutional arrangement has reinstated the parliament supremacy, protected the vote of the citizen, absorbed the European System and legislation and now is showing the ability to make the changes to adjust itself for the future horizon.
9 Conclusion
In conclusion, the UK does not need a written constitution to pass and survive at Brexit.
The constitutional arrangement has shown its capacity to fulfil the scope and protect the parliament supremacy, quoting a famous commentator “Curiously, Brexit has resulted in the country’s supreme parliament “taking back control.”[35]
References
[1] The Uk has voted to leave the EU by 51.9% to 48.1%. Leave won the majority of votes in England and Wales, while every council in Scotland saw Remain majorities.
[2] R (Miller) v Secretary of State for exiting the European Union [2017]UKSC 5(24 January 2017)
[3] James Blitz, Jim Brunsden and Laura Hughes,’Brexit timeline: key dates in the UK’s divorce from EU’[2019] Finantial Time online April 24 2019.
[4] D.Feldman, ‘None, one or several? Perspectives on the Uk’s constitution(s)’ (2005) 64(2) Cambridge Law Journal 329, 335-6.
[5] E.G. Henderson, ‘Foundations of English Administative Law: Certiorari and Mandamus in the Seventeenth Century’ (Cambridge, Ma:Harvard University press, 1962), p.5
[6] A.V. Dicey, the Law of the Constitution (9thedn, London: Maxmillian, 1959), 194.
[7] A. Tomkins, Public Law (oxford: Oxford University Press, 2003), p.105
[8] M. Elliot,’reflections on the HS2 case: a hieracy of domestic constitutional norms and the qualified primacy of EU Law’ UK Constitutional Law Blog (23 January 2014), available at http://ukconstitutionallaw.org/2014/01/23/mark-elliot-reflections-on-the-hs2-case-a-hierarchy-of-domestic-constitutional-norms-and-the-qulified-primacy-of-eu-law/
[9] Blackburn V Attorney-general [1971] 1 all ER 567, CA; C-26/62 NV algemene Transport- en Expedite Onderneming van Gen En Loos); C-6/64 Flaminio Costa V Enel [1964] ECR 585, 593-4; C-11/70 internationale Handelsgesellshaft mbh v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel [1970] ECR 1125, 1134; Factortame Ltd and others v Secretary of State for Transport [1990] 2AC 85, HL,
[10] Gregory Shenkman,‘Brexit lands a heavy blow on Britain’s constitution’ Financial Times, on line edition, 18 April, 2019.
[11] Michael Skapinker, ‘The rule of law: into battle over executive power’, Financial Times online edition, 5 October 2017.
[12] A.V. Dicey, The law of the Constitution (10thEdn, London: MacMillian, 1959), pp. 424-5
[13] BBC v Johns (inspector of Texas) 1965 Ch 32 (CA)
[14] R (Miller) v Secretary of State for exiting the European Union [2017]UKSC 5(24 January 2017)
[15] D. Feldman,’None, one or several? Prespectives on the UK’s constitution(s)’ (2005) 64(2) Cambridge Law Journal 329, 331-3.
[16] JH Rayner (mincing Lane) Ltd & others v Department of trade and industry [1990]
[17] David allen Green, ‘Brexit, Speaker John Bercow and the UK constitution How Britain has avoided a crisis, not been gripped by one’, Finantial Time, 19 March 2019 first page.
[18] Henry Mance,’who govern Britain?, Financial Times online edition, March 15 2019
[19] Referendums in the United Kingdom – Constitution Committee
Contents https://publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/9909.htm
[20] House of Commons Exiting the European Union Committee European Union (Withdrawal) Bill First Report of Session 2017-19, HC 373 Published on 17 November 2017 by authority of the House of Commons
[21] The swell convention, Standard note SN/PC/2084 25 November 2005, Paul Bowers, Parliament and constitution centre, Library house of commons
[22] P.A. Morton, ‘Conventions of the British constitution’ (1991-92) 15 Holdsworth Law Review 114, 125-7
[23] F.F. Ridley, ‘there is no British constitution: a dangerous case of the Emperor’s clothes’ (1988) 41 (3) Parliamentary Affairs 340, 343-4
[24] Gregory Shenkman,’ Brecow is abusing the office speaker’, Finantial Times March 20, 2019 first page.
[25] The speaker definition on www.parliament.uk
[26] Henry Mance and George Parker,’ May’s Brexit hits block as Bercow rules out third vote on same deal’, Financial Times Thursday 19 March 2019,First page.
[27] A. Tomkins, Public Law (Oxford University Press, 2003), p. 7
[28] D. Armitage (ed.) Bolingbroke’s Political Writing (Cambridge Unversity press, 1997), p. 88
[29] Lisa Weblet & Harriet Samuels Complete public law p. 53
[30] W. Bagehot, ‘Introduction to the second edition’, in the English Constitution (2ndedn, 1873; New York: Cosimo Classics, 2007), p.5
[31] Comprehensive proposals for a smaller, reformed House of Lords, to which members are elected, are published today by the government, published on Published 17 May 2011 This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government as reported on https://www.gov.uk/government/news/proposals-for-a-reformed-house-of-lords-published--2
[32] In 2005 Parliament passed the Constitutional Reform Act which, for the first time in constitutional history, provided for the separation of the Appellate Committee (supreme court) from the legislature (Parliament) and the executive (Government)
[33] Bronwen Maddox,’Brexit has broken UK politics, not the constitution’ Financial Times, online edition, April 15, 2019.
[34] David Allan Green,’Brexit tests the British constitution’ Financial Time online edition, 1 April 2019.
[35] David Allen Green,’ Brexit, Speaker John Bercow and the UK Constitution’, Financial Time online edition, March 19, 2019.
April 2020
by Daniele Lupi