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Expert comment: Brexit, Parliament and the British Constitution

As EU supporters prepare to march on Parliament this Saturday (23rd June), Politics Lecturer Dr Danny Rye argues that a People’s Vote is the only legitimate constitutional way to resolve Brexit.

The first clause of Article 50 of the Lisbon Treaty states:

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

But as has become apparent, in the case of the UK, nobody really knows what those requirements actually are and a significant amount of energy has been consumed over the last two years in disputes over what the respective roles, responsibilities and powers of Parliament and the executive are, what the precise status of the referendum is and who, if anyone, is responsible for interpreting it.  The Miller case exposed confusion and uncertainty even over who had the power to begin the process.  There is no clear constitutional guidance, either, on how or by whom it should be executed, scrutinised or concluded and, crucially, how and by whom the outcomes should be approved or legitimised.

This messiness reflects the UK’s famously uncodified constitution, which means its basic rules are not systematically laid out in a single, document which governs the relationships of key elements of the political system. This means that the UK constitution is very flexible which has served it well in some respects, not least in adapting to European Union membership.  But it means, above all, that the constitution is political.  Above all, sovereignty and power in the British constitution has not been a matter for the courts, as in many codified systems, but has rather been established and maintained by political struggle, which is why the resolution of the question of who should trigger Article 50 by the courts is somewhat problematic in the UK context.

A key principle of the British constitution is the notion of ‘parliamentary sovereignty’ – that Parliament has the sole right to make or unmake law in its territory. For many Eurosceptics, it is this that made the British system incompatible with EU membership, which (as confirmed by the Factortame Case in 1991) instituted a higher body of law over that of statute. But this was merely a qualification of Parliamentary sovereignty, and one which Parliament imposed upon itself and (as Brexit perhaps proves) can also remove.

However, even if that qualification is eventually removed, there are, unfortunately for Parliamentary Sovereignty enthusiasts, many more than that. Significant constitutional changes made under the Blair and Brown governments (including devolution and the creation of a Supreme Court), as well as Cameron’s (including fixed term parliaments, the creation of regional mayors and English Votes for English Laws), whilst by no means part of any strategic masterplan, have also de facto altered Parliamentary sovereignty. In some respects it has been strengthened – the Prime Minister no longer has the power to dissolve Parliament against its will. In other respects, it has weakened: it has lost control over key areas of domestic policy, including personal taxation, to the Scottish Parliament and the Welsh Assembly.  One of the more significant changes in recent years, it turns out, has been the use of referendums to endorse or reject many such reform proposals. It means that, as Vernon Bogdanor has pointed out that a ‘new principle … of the sovereignty of the people’ has entered into the British constitution (Bogdanor 2016, 314).

Thus, the age old struggle over sovereignty and power between the Crown (now represented by the executive) and Parliament continues, but now complicated by two other important participants: the devolved authorities and, crucially, the people. Brexit, in particular, the question of how the process should be carried out has exposed the ambiguities in the relationship between these participants and where the boundaries of authority and sovereignty lie. Ultimately, this raises profound, constitutional questions about who governs: Ministers of the Crown, Parliament, the devolved assemblies or the People?

The flexible and political nature of the constitution means that the response of politicians and political parties to the referendum was always going to be crucial in determining the ‘constitutional requirements’ necessary to withdrawal from the EU. In the immediate aftermath of the referendum, with both main parties in states of disarray, and unclear how to respond, backbench MPs had a rare opportunity to set the terms of debate, and an analysis of the first six months of debates in Parliament following the referendum, reveals that five distinct positions emerged which have shaped the debate, are still relevant and still being argued over now.

Whilst these are on the whole politically motivated positions, taken because of their perceived advantage to either a Leave / Remain or a ‘Hard’ or ‘Soft’ Brexit position, have significant constitutional implications at least as profound as the outcomes themselves, and each leave questions about the developing nature of the UK constitutional settlement.

This article originally appeared in Open Democracy UK. Read it in full here.