Brexit & the UK Constitution – 2016/17 year in review


2016/17 has been a turbulent year politically. We saw a vote to leave the European Union (EU), a change of Prime Minister, a Supreme Court judgment imposing limits on the powers of the executive, the triggering of Article 50 and the call of a snap general election. The resulting implications for our UK constitution are substantial. Here we explore some of the significant events that occurred, along with key Constitution Society publications which seek to understand the implications for the UK constitution.

If 2016 teaches us anything, it will be that politics can be unpredictable. The results of the EU referendum demonstrates this. Our well-received publication, “Brexit: The Immediate Legal Consequences”, written by Richard Gordon QC and Rowena Moffatt set out in advance the ramifications of a possible vote to leave the EU. When this paper was written in May 2016, many assumed that it was unlikely to be relevant post 23rd June 2016. However, it achieved what the previous government failed to. It critically analysed the main legal and constitutional consequences of a ‘Brexit’, and the unavoidable challenges the government would face upon triggering Article 50.

Nat le Roux’s commentary on “The EU referendum and some paradoxes of democratic legitimacy” sought to analyse the tensions between the use of referendums and the concept of representative democracy. Andrew Blick and Richard Gordon’s following paper, “Using the Prerogative for Major Constitutional Change: The United Kingdom Constitution and Article 50 of the Treaty of the European Union further analysed the deployment of prerogative powers, the appropriateness of their use for the implementing substantial systemic alterations, and the implications for the then-proposed triggering of Article 50. It held that a new constitutional norm was emerging, in which the prerogative cannot be used as a power source for important governmental activities. This includes the implementation of significant constitutional changes, such as triggering the United Kingdom’s departure from the European Union, without first consulting Parliament.

This paper anticipated the EU court case R (Miller) v Secretary of State for Exiting the European Union, in which Gina Miller argued that the executive needed parliamentary approval before triggering Article 50, and that enacting the result of the advisory referendum did not fall within the prerogative powers of the executive. The Supreme Court finally ruled that the government needed an Act of Parliament to trigger Article 50, dismissing the government’s appeal from the previous Court of Appeal judgment.

Sir Malcolm Jack and Richard Reid’s paper on “Financial Privilege: The Undoubted and Sole Right of the Commons focused on the powers of the second chamber in relation to financial matters. This particular subject matter is connected to a wider debate about the role of the House of Lords and the extent to which it is proper for it to exert its legal powers, which could become live again as Brexit progresses.

The impact of the vote of June 23 2016 has demonstrated how important referendums have become within the context of the UK political system. This realisation prompted our paper on “Referendums and the Constitution”, by Lucy Atkinson and Andrew Blick. It considered from an historic perspective how referendums became an established part of UK political decision-making, and what this development meant for the UK constitution.

Preparing for Brexit: The Legislative Options” by Richard Gordon QC and Tom Pascoe assesses the legal options for ‘Brexit’ and the Great Repeal Bill, following on from the hypothetical paper Richard Gordon co-authored. Many of the technical and legal issues surrounding Brexit have been overlooked in the run up to the snap general election. However, once the new government is announced on June 9th, assuming it is determined to press ahead with Brexit, it will need to set about disentangling EU law from UK law immediately. 21 months is a short time in which to complete this considerable task.

This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.