Conference: France-United Kingdom – Two Constitutions After Brexit

By: The Constitution Society

On Friday 13 May, The Constitution Society held a conference at the French Senate in Paris looking at a range of topical constitutional issues – from the Northern Ireland Protocol to retained EU law. Recordings from the various panels and talks given at the event, which was organised in collaboration with Dr Sophie Loussouarn from Amiens University, can be found below.

Panel one: Northern Ireland’s constitutional past and contested present

In this panel, Professor Katy Hayward, Dr Sean Newman and Dr Lisa Whitten discuss Northern Ireland’s constitutional past and present in the context of the Northern Ireland Assembly elections on 5 May 2022, in which Sinn Féin won the most seats for the first time. The Democratic Unionist Party subsequently refused to return to power-sharing government, citing a lack of change to the Northern Ireland Protocol.

First, Dr Newman looks back at Northern Ireland’s history, identifying a number of themes that continue to define and influence contemporary politics. He explores the way in which history defines community relations and political allegiances in Northern Ireland – which has led to exceptional and precarious constitutional arrangements and an uneasy and ever-changing relationship with the uncodified constitution of the UK.

Second, Dr Whitten looks specifically at the impact of the UK’s withdrawal from the European Union on Northern Ireland, arguing that the process has changed Northern Ireland from being a ‘frontier place’ to a ‘fulcrum place’. She proposes that the tensions over Northern Ireland’s post-Brexit arrangements can be understood as a consequence of tensions between two different traditions of constitutional development – the typical British constitutional model, with its emphasis on political decision-making, and the more legal constitutional orientation of the European integration project.

Third, Professor Katy Hayward addresses the question of whether there should be a poll on Irish unification. She looks to the text of the Belfast/Good Friday Agreement, highlighting the conditions regarding a border poll which are made clear in the Agreement and those that are left ambiguous – including, crucially, the grounds on which the Secretary of State for Northern Ireland would determine that it is likely there is a majority in favour of a united Ireland.

Speaker 1: Dr Seán Bernard Newman was a Research Fellow at The Constitution Society between September 2021 and January 2022.

Speaker 2: Dr Lisa Claire Whitten is a Research Fellow on the ESRC-funded project ‘Governance for a ‘place between’: the Multi-Level Dynamics of Implementing the Protocol on Ireland/Northern Ireland’ based at Queen’s University Belfast.

Speaker 3: Katy Hayward is Professor of Political Sociology at Queen’s University Belfast and a Senior Fellow of the UK in a Changing Europe think tank.

Panel two: Scotland and the future of the Union after Brexit

In this panel, Professor Sir John Curtice, Reuben Duffy, Professor Nicola McEwan and Professor Aileen McHarg look at the state of Scottish devolution, exploring the impact of Brexit and the prospect of a second referendum on independence.

First, Professor McEwen explores the impact of Brexit on intergovernmental relations, highlighting the deterioration of relations between the UK and Scottish governments during the withdrawal process and in the context of the controversial UK Internal Market Act. She concludes that while new machinery to support intergovernmental relations is positive, this needs to be accompanied by a change in political culture to be made effective.

Second, Professor McHarg examines the legal issues around the prospect of a second referendum on Scottish independence, showing how the process has become stuck despite the Scottish National Party’s commitment to legislating for a second referendum. She concludes that the solution to the legal problem of whether the Scottish government can call such a referendum is essentially political.

Third, Professor Curtice sets out how public attitudes towards Scottish independence have shifted between 2014 and the present day. He shows that Brexit has had a significant impact on attitudes, shifting those who voted remain towards independence and those who voted for Brexit towards staying in the UK. He concludes that Scotland is now highly politically polarised along unionist-nationalist lines.

Finally, Reuben Duffy talks about Scotland’s place in the world. He observes that Scotland has long had a distinct international role and that this has only developed further since devolution. He argues that Scotland should be formally accorded an autonomous foreign policy role, in line with sub-state actors in other union states, and that this should be accompanied by an improved framework of cooperation with the UK government.

Speaker 1: Nicola McEwen is Professor of Territorial Politics at Edinburgh University.

Speaker 2: Aileen McHarg is Professor of Public Law and Human Rights at Durham Law School.

Speaker 3: Sir John Curtice is Professor of Politics at Strathclyde University and a Senior Fellow at the National Centre for Social Research.

Speaker 4: Reuben Duffy was a Research Fellow at The Constitution Society between September 2021 and January 2022.

Keynote: Professor Alan Sked

In this talk, Professor Alan Sked provides a global historical perspective on the UK’s place in Europe and exit from the European Union. He describes what historians have called the ‘European miracle’ of economic, political and cultural advancement between 1000 and 2000AD, which he argues was caused by Europe’s disunity and diversity.

Professor Sked also provides his views on why the UK joined the European Economic Community in 1973 and the combination of factors that led to Brexit under Boris Johnson. He proposes that Brexit has allowed Britain to regain its sovereignty and assume its historical role in European affairs.

Alan Sked is Emeritus Professor of International History at the London School of Economics and Political Science and a world expert on the Habsburg Monarchy. Outside of academia, he stood as a parliamentary candidate on several occasions, for the first time in 1970 as a candidate for the Liberal Party. In 1991, he founded the Anti-Federalist League (AFL), a Eurosceptic, anti-European Community party which contested seats at the 1992 general election. In 1993, the AFL changed its name to the UK Independence Party (UKIP). Alan was leader until 1997, when he resigned citing the growing influence of far-right elements in the party and the decision to take up seats in the European Parliament, should they be won. Thereafter, he became a leading critic of the party. Indeed, Nigel Farage would call him his ‘biggest enemy’.

Panel three: EU law and governance in the UK after Brexit

In this panel, Professor Catherine Barnard and Professor Alison Young discuss the government’s plans for retained European Union law, announced in the Queen’s Speech on 10 May 2022.

Professor Barnard first outlines what retained EU law is, explaining what is meant by supremacy and the difference between retained EU law, retained EU case law and retained general principles. She highlights that despite the implication of the government’s announcement on retained EU law, there is nothing that means it can’t already be amended, repealed or replaced.

Next up, Professor Young explores the government’s recent promise to introduce a ‘Brexit Freedoms Bill’ to ensure ‘that retained EU law can be amended, repealed or replaced’ and get rid of its supremacy. She argues for a policy-specific approach that protects legal certainty and doesn’t side-step parliamentary scrutiny and over-empower the executive.

Speaker 1: Catherine Barnard is Professor of European and Employment Law at the University of Cambridge and Deputy Director of the UK in a Changing Europe think tank.

Speaker 2: Alison Young is Sir David Williams Professor of Public Law at Cambridge, a Fellow of Robinson College and Director of the Centre for Public Law.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed at the conference are the personal views of the speaker and not those of The Constitution Society.