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Indefinite article: The threats of leaving the EU to the British Constitution

Image credit: Number 10 (Flickr: Creative Commons)

It’s often said that Britain doesn’t have a constitution. While that may be true in that no supreme law codified on paper exists, clearly Britain has a constitution, in that it exists, is recognised, and maintains a system of executive, legislative and judicial government. The fundamental understanding of Britain’s constitution in the wake of the English Civil War, the Glorious Revolution and the enactment of the Bill of Rights is the concept of supremacy of parliament. The bizarre constitutional arrangements are the result of organic development over the millennium since the first sitting of the Estates of Scotland in 1235 and the Parliament of England in 1265.

With each stage of democratisation, piecemeal reforms to Parliament and the constitution have resulted in a compromise constitution. It's for this reason that there are 26 Anglican bishops sitting in the upper house—the House of Lords, and that 99 members of that house are elected from a pool of hereditary aristocrats. It's for this reason that only three of the four constituent countries of the UK have their own parliaments and that until 2009, the highest court in the land was a committee of the House of Lords.

An enormous, fundamental change to British constitution was decided upon last June through a referendum—a mechanism that is logically inconsistent with that supremacy of parliament. Since then, the norms, conventions and institutions which make up that compromise have been exposed to scrutiny and to challenges. The lack of precedent has provided an opportunity for a wide variety of political stakeholders, from the hardcore pro-Brexit UKIP to the establishment Conservative government, to instrumentalise the vagaries of the process in order to suit their own ends.

The decision of the Supreme Court of the United Kingdom that Parliament is required to consent for the Prime Minister to trigger Article 50 was of no surprise. When the entire constitution is predicated on the fact that parliament is supreme, clearly the parliament should have to be consulted on any change to the Constitution. The most recent swathe of British constitutional reform had taken place under Tony Blair’s government in the late 1990s. New legislatures were established in Wales, Scotland and Northern Ireland, with varying and increasing areas of responsibility being devolved.

However, these legislatures exist at the whim of Westminster, as the occasional suspensions of the Northern Ireland Assembly demonstrate. Furthermore, these devolved legislatures do not have responsibility for Foreign Affairs or constitutional matters. It’s unsurprising, then, that the Supreme Court decided that the devolved assemblies did not need to be consulted. The United Kingdom is not a federal state, and the Supreme Court’s decision highlights this. If anything, this process exposes the weaknesses in the British constitution.

What’s highly concerning is that the court case was necessary to force the government to consult parliament. While it’s true that the Conservatives went to the 2015 election promising a referendum on membership of the European Union, that manifesto commitment provided no detail about how they would leave were the referendum to pass and the Leave campaign provided no sense of a mandate for any particular course of action. Having not gone to an election after her ascent to power, the Prime Minister would be expected to have some level of self-consciousness about a mandate for her government’s actions. An election, or a meaningful consultation with parliament and the devolved executives would suggest a productive approach. With the result of the referendum showing that two of the four constituent countries rejected Brexit, one would expect that the first aim of the government throughout the process of leaving the EU would be to ensure the continuity of the United Kingdom, a cause which could only be aided by consulting the Northern Irish Executive, and the Welsh and Scottish Governments. The wilful ignorance of obvious constitutional expectations is an essentially worrying development.

‘The Great Repeal Bill’ is the next large-scale re-invention of the British constitution and the developments leading to this are not promising for the future of British politics. The government will decide to keep parts of EU law that it favours and abandon the rest, with no indication that this was what Brexit was ever supposed to mean. A plan to repeal the European Declaration of Human Rights and replace it with a British Bill of Rights is likely to be ushered through without any significant debate or mandate from a voting public. While the development of the party system in the 19th and 20th Centuries meant that parliament—particularly the House of Commons—grew to resemble a rubber stamp, the government’s ambition to show this against a weak opposition magnifies an enormous constitutional democratic deficit. The ambition of centralisation of power in the executive makes the trope of the referendum—‘taking back control’—seem particularly sinister. Even with the fact that Parliament is required to vote on Article 50, it has rarely seemed more powerless.

Fionn McGorry is the Europe and Eurasia Fellow for Young Australians in International Affairs.

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