Implementing the decision to exit the European Union represents a near unprecedented constitutional challenge for the UK. Michael Gordon, University of Liverpool, takes a close look at the solutions that the UK constitution might offer for tackling the Brexit and the way the constitution itself might change throughout the process.
Implementing the decision to exit the European Union represents a near unprecedented constitutional challenge for the UK. We have already dealt with difficult questions associated with commencing Brexit, primarily through the Miller litigation, but also the ongoing political manoeuvring as the key institutional actors seek to engage with and interpret the 2016 referendum result. We are starting to get a sense of the challenge of executing Brexit, most obviously in the spectre of the ‘Great Repeal’ Bill to go before Parliament, the looming (and time pressured) withdrawal negotiations for the government, and the quickly mounting parliamentary select committee reports mapping the potential shape of a post-EU UK. And we can glimpse the likely issues associated with concluding the Brexit process, far off though they may appear for now: in particular, the prospect of a further domestic referendum, or ‘meaningful’ parliamentary votes on the terms of the final deal (if one can be agreed).
How we confront these many and varied challenges raises interesting and important questions of constitutionalism. The distinction between legal and political constitutionalism may be controversial, but understood appropriately - as marking a difference in emphasis between the conditioning of public power through law or politics, rather than the (impossible) exclusion of either - it can be a useful organising tool for understanding what lies ahead. This is potentially significant in two ways, and this paper will try to reflect on both: first, the way in which the challenges of Brexit might (most effectively?) be tackled, and, second, what we might learn about the changing shape and nature of the UK constitution along the way. For if Brexit is indeed a constitutional challenge of the first order, it is crucial that we ask questions both about the possibilities for the future constitutional relationship between the UK and EU, and what the UK constitution which will accommodate that relationship may come to look like. For just as the UK constitution will shape the delivery of the decision to exit the EU, the constitution’s legal and political components will also inevitably be shaped by the completion of this monumental task.
Dr Michael Gordon is a Senior Lecturer in Law at the Liverpool Law School, School of Law and Social Justice, University of Liverpool. His research is in the field of constitutional law and theory, with a focus on the UK and its relationship with the EU.
Mike is the author of Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart Publishing, 2015), co-author of Cases and Materials on Constitutional and Administrative Law (Oxford University Press, 11th ed, 2014, and 12th ed, forthcoming 2017), and has also published on EU referendums (in particular, issues presented by the European Union Act 2011) and European fiscal governance (in particular, issues presented by the Fiscal Compact), as well as the challenges posed by Brexit (in particular, the constitutional process, sovereignty, the Great Repeal Bill, and the impact on the relationship between the UK Parliament and Government).