Brexit and the UK constitution

The flexibility of Britain’s unwritten conventions made the decision to leave the EU simple, but also explains why the process is so complex

Larry Siedentop

The Blair government’s asymmetric devolution has made it more likely that the UK will need a new constitution to survive (©WORLD EONOMIC FORUM CC BY-NC-SA 2.0)

Little attention has been paid to the ways Britain’s unwritten constitution is shaping the Brexit process. Yet the unwritten constitution explains two things about our present condition — two things that point in diametrically opposed directions. On the one hand, the constitution made the decision to leave the European Union relatively easy. On the other, it is making the process of disentangling UK government from the EU far more difficult — indeed, at times, seemingly impossible. So tracing the consequences of an unwritten constitution helps to understand why it is both easier and far more difficult for the UK to leave the EU than it would be for any other EU member state. 

Deciding to withdraw — restoring parliament’s monopoly of final legal authority — exploited a crucial difference between an unwritten constitution and codified constitutions. Where nearly all codified constitutions draw a sharp distinction between the process of constitutional change and the ordinary law-making process, that is not the case in the UK.

Codified constitutions typically raise a special barrier around the process of constitutional change. And the reason for that is clear. Changing the constituent authority — i.e., the foundation of the state and the legislative process itself — is deemed to require a higher degree of popular consent than that provided by a simple majority principle.

Yet in the UK ordinary parliamentary legislation — resting on that majority principle — authorised a referendum on UK membership which those in favour of leaving the EU interpret as a binding rather than merely advisory vote. That has led the May government to invoke Article 50 and begin the process of constitutional change on the basis of a modest referendum majority. Of course parliament might have stipulated that the outcome — given its constitutional implications — required a far higher test than a simple majority. But it did not. Our habitual reliance on the majority principle when legislating in the UK parliament prevented any serious discussion of that question. 

Even the recent legal dispute about executive powers when invoking Article 50 (in order to announce our intention to leave the EU) did not really lead to such discussion. As a result, the decision to leave EU was relatively uncomplicated.

But what about the consequences of leaving? Does our unwritten constitution also simplify the process of leaving?

Far from it. As I have already suggested, withdrawing from the European Union would probably be easier for any other EU member state than it will be for Britain — and it is the unwritten British constitution which makes that so. Why? 

There is an almost primitive simplicity about the norm underpinning the British Constitution: “the sovereignty of the Crown in Parliament”. The normative content of our constitution is minimal when compared to that of the codified constitutions of other EU member states. It is only slightly mischievous to say that the British constitution can best be described as “what happens”.

The British constitution is thus essentially historical. It consists almost entirely of established practices. In privileging established practices rather than abstract principles it is closely related to our common law tradition. As in the common law, precedent is the norm in the British constitution. Indeed, its genius has been that it tends to minimise the gap between law and public opinion — reducing the risk that the two might diverge to the point of major social conflict, if not civil war. 

The British constitution has tended to ensure government by consent. Governing by means of established practices which are modified frequently, but for the most part gradually, has created a law-abiding culture — a culture in which law is approached with an instinctive respect rather than suspicion. The case-bound character of English common law — along with its distrust of overly abstract principles — has both reflected and reinforced that instinctive respect for the law. UK courts’ concern to identify and respect the will of parliament has been integral to government here.

One consequence is that “judicial review” on the American model — when it openly shapes public policy — is distrusted. It is seen as a kind of usurpation by judges. So is it hardly mere accident that since joining the EU such review by the Luxembourg Court has aroused widespread dismay and opposition in Britain.

If creating and sustaining a culture of consent is the proper goal of any system of representative government, the British system — with a constitution consisting largely of practices rather than abstract principles — can be said to have been more successful than many continental political systems based on a Roman law tradition. Does not an important part of the opposition to EU membership springs from a sense that EU “law” is more of a diktat than the common law?

But successes generated by the common law tradition in creating a culture of consent should not blind us to the formidable scale of the challenges now facing the British political system as a result of the referendum vote to leave the European Union. The historical character of the British constitution means that by far the largest part of the constitution consists of accumulated practices rather than abstract principles. Well, a great deal has happened since the UK joined what became the European Union nearly 50 years ago. Our constitutional formula — the sovereignty of the Crown in Parliament — has been extended to “cover” thousands of EU laws and rules that have often received only limited parliamentary scrutiny, if any. For nearly half a century rules and practices resulting from membership of the EU have been introduced into the British state. What is the result? They now constitute a very large part of the identity of the British state, layer after layer of its identity.

Adopting a morbid image, it might be argued that there is nothing like a complete skeleton which can now be extracted from the flesh of accumulated EU directives as we seek to leave the EU.  At the same time, the law-abiding culture which centuries of self-government have created in the UK has led the British civil service to apply Brussels directives in the strictest possible way — something giving rise to charges that the UK’s literalism (“gold-plating”) contrasts markedly with other member states’ looser application (which at times can mean ignoring them). The recent unabashed refusal of Eastern European member states to accept EU refugee quotas offers a sharp contrast to British attitudes and practice as a member of the EU.

An important difference between an unwritten constitution and the codified constitutions of EU member states emerges at this point. When national courts operate within the framework of a written constitution, they may more easily feel empowered to challenge EU claims of final legal authority. The German Constitutional Court, drawing on its federal constitution, has sometimes strongly asserted limits on the EU’s jurisdiction — whereas the UK Supreme Court has evidently felt less able to do so.

The simplicity of the UK’s underlying constitutional norm has thus allowed deeper penetration of the EU into British government — both its rules and its practices — than has been the case in other member states. Its traditional flexibility has, in a sense, been its undoing.

It is not absurd to say that after more than four decades of British membership in Europe the British state is more fully part of Europe than any other member state. Indirect evidence for that emerges in the fact that the UK has been taken to court by the EU Commission less often than most other member states. The habits created by a culture of consent have seen to that.

But does Brexit itself now threaten the survival of that culture? For in the disputes about leaving the EU Brexiteers often make their case by appealing to “the will of the people”. But that appeal, if made too simply, endangers the culture of consent created by parliamentary sovereignty.

A representative form of government turns on introducing subtlety into the governing process. It involves a recognition that public opinion is complex, often incoherent, with majorities constantly shifting — so that the duty of legislators is to introduce as much coherence as possible into legislation, while respecting the diversity of opinion. It treats “the majority” as important but not conclusive (the abolition of the death penalty provides an obvious example). It avoids a simple binary outlook whenever possible. Indeed, that is the heart of “liberal” democracy as opposed to “populist” democracy.

So we should not delude ourselves by thinking that Brexit merely raises difficult questions about our future relations with the European continent. It threatens the very coherence and identity of the British state. For that reason I suspect that it will lead sooner rather than later to new constitutional settlement in the UK. That is the final paradox. Withdrawing from the European Union out of anxiety about its moves towards a European federation may very well lead to a federal UK.

Ever since the Blair government introduced asymmetric devolution in the UK, it has been likely that the process of comparison — e.g., different degrees of devolution between Scotland and Wales — would generate discontents requiring a new constitutional foundation if the UK is to survive as a state. Those discontents are now being revealed and will be reinforced by the process of leaving the EU. Already Westminster is reduced to “negotiating” with devolved regional powers over the political future.

If we are to prepare for a future outside the EU, then the whole country — and not least the political class itself — needs a constitutional education. Today that education is sorely deficient. For a country with a constitution essentially historical in character, decline in the teaching of history is a disaster. For it means that the younger generation has little grasp of the difficulty of creating and maintaining representative institutions. That lack of historical knowledge joined to the growing impact of the internet means that the young often seem to prefer a direct democracy — something that corresponds to their experience of expressing opinions online and getting immediate reactions to those opinions. Constitutional literacy has suffered as a result.

One example should make that clear. In discussions on both sides of the EU debate two words — “centralisation” and “federalism” — are often used as if they were synonymous. But that is a dangerous confusion. For the chief object of a federal system is to limit centralisation — that is, to disperse authority and power within a single political system. Federal systems do, of course, differ over what is the correct balance between central authority and regional authorities. But what they have in common is an attempt to achieve a balance. That, I think, will now rapidly — and rightly — become the UK’s predominant constitutional concern.

Here we meet a final irony. Britain has consistently worked against centralising moves within the EU, moves sponsored frequently by France. Yet in recent decades, especially since the Thatcher government, the UK government has itself become excessively centralised — more so, perhaps, than any other European government. The virtual demise of local government’s autonomy and a concentration of power in the Treasury have changed the face of the British state. Some of the complaints that led to the Brexit vote may in fact have been complaints about these changes in the form of the British state.

Relying on the informal “manners” of the political class to preserve local and regional autonomy in the UK will no longer suffice. In that respect, the unwritten constitution has already failed. 

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