Brexit and the Constitution - February 2017
Even before she was crowned as Leader of the Conservative Party and Prime Minister (but after she had won a commanding majority in the Parliamentary stage of the Conservative leadership contest) Theresa May coined the single most quoted verdict on the 23 June referendum: ‘Brexit means Brexit’. There continues to be argument and uncertainty over the meaning of this pithy formula, but most of the argument concerns the economic terms of exit. Yet there is another area of great uncertainty which should interest us as observers of the system of government in the United Kingdom: what Brexit means for the constitution. Some of the detailed arguments in this area are arcane (any reader wishing to pursue this arcana can do so via the excellent publications of the Constitution Unit at: https://www.ucl.ac.uk/constitution-unit/research/europe). But there is nothing arcane about the constitutional problems that Brexit raises: they go to the very heart of the future of the governing system in the United Kingdom.
The best way to consider the constitutional question is by a simple comparison: between the United Kingdom when we entered the (then) European Economic Community; and the United Kingdom when we decided to leave. In 1973 the UK was a centralised, unitary state. Indeed, the previous year it had actually become more centralised when the government at Westminster lost patience with the politicians in Northern Ireland and imposed direct rule from Whitehall on the only part of the UK that had ever practised significant devolution. There was, true, the beginning of nationalist challenges in Wales and Scotland, but the Royal Commission on the Constitution (Kilbrandon 1973) could not even produce a unanimous report on proposals for even limited devolution. In the 1975 referendum on continuing membership the Scots, though they voted to remain, were markedly less enthusiastic than the English, but hardly anybody thought that had constitutional implications: the ‘unitary state’ mind-set dominated constitutional thinking and constitutional practice. Britain entered the ‘Common Market’ as a single state with a single sovereign Parliament in Westminster.
We voted to leave the EU in 2016 with a very different constitution, something that is a central theme of Politics and Governance in the UK. We now have, in practice, a federal system in which the devolved territories have significant and growing autonomy, and where the traditionally understood notion of Westminster and Whitehall sovereign supremacy simply no longer makes sense. The most publicly discussed symptom of this is the Scottish question. Scotland, of course, voted by a significant majority (62 per cent to 38 per cent) in favour of ‘remain’ in 2016, and the problem of how to reconcile the Scots to ‘Brexit’ without precipitating a second independence referendum is an acute one. But the Scottish problem is indeed only a symptom, albeit a serious one. It is a symptom of the fact that, whereas in the 1970s it made sense to speak of the UK making a ‘unitary’ decision, and made sense to speak of Westminster Parliamentary sovereignty, that language now makes little sense.
It is in this light that we should view the arguments mounted in the Supreme Court and Court of Appeal about whether the Government needed the authority of Parliamentary legislation to trigger Article 50, the Article which starts the Brexit process. On 24 January the Supreme Court confirmed the Appeal Court judgement that the government could not bypass Parliamentary approval. The most remarkable feature of this judgement, however, was not what it allowed but what it prohibited. It judged that the devolved institutions, and notably the Scottish Parliament, could not intervene; only the Westminster legislature could do so. The view of the constitution reflected in the judgements of the two courts is strikingly traditional. It focuses, in a manner that the great 19th century jurist Dicey would have recognised, on the prerogatives of the Westminster Parliament. The mindset of the judges has hardly been affected by the great changes that have turned the UK into a state with a federal constitution.