Constitutional law | Autumn 2019
Britain has developed an uncharacteristically laid-back attitude to constitutional change, with once-rare reforms to the UK’s ad hoc democratic settlement coming at a startling pace in recent years. The previous Labour administration ushered in varying degrees of devolution in Scotland and Wales, before in 2003 pulling the UK’s highest court out of the House of Lords and into the new Supreme Court (tacked on was reform of the Lord Chancellor’s historic role). The process of further EU integration under the Maastricht Treaty, not to mention Labour’s 1998 Human Rights Act, which gave domestic force to the European Convention on Human Rights, also had significant impact.
In earlier generations, the rules defining governance and the UK’s main institutions had been amended with huge gaps between them, such as the Bill of Rights (1689) and the statutes between 1832 and 1928 that extended the right to vote. No more. The off-the-cuff nature of modern reform was famously mocked in legal circles, notably by the second Supreme Court president David Neuberger, who dubbed the court’s launch as a ‘last-minute decision over a glass of whiskey’.
The next big change came with the Fixed-Term Parliaments Act 2011 – the referendum on shaking up the UK’s voting system in 2011 having been rejected. The Fixed-Term act was soon to reveal its arguably unintended significance in greatly undermining the ability of confidence votes to bring down governments. And while referenda have historically been strongly resisted in the UK, David Cameron presided over three in six years of leadership, culminating in the 2016 Brexit vote that ended his prime ministerial career.
Ushering in constitutional rights for citizens under the Human Rights Act also gave judges a greater role in policing those rights and brought the judiciary further into the field of forming public policy, an issue that has continued to simmer ever since.
There had already been grumbles from public law academics that such meddling risked unsettling the UK’s ancient but ad hoc constitutional settlements. Those following the example of celebrated theorists like AV Dicey, who popularised key notions of parliamentary sovereignty and the rule of law, despair at the lack of restraint by modern politicians and policy makers.
And then the 2016 referendum on membership of the EU happened, pitching the UK into a new order of uncertainty that has already thrown many of the assumed norms of public life and governance right out of the window. This summer saw an election within the Conservative Party of the new prime minister, Boris Johnson, to replace Theresa May, who herself broke convention to bring the same deal on exiting the EU back to Parliament despite repeated rejections. Several candidates to replace May openly floated proroguing Parliament to force through an exit this autumn without agreed exit terms, a stance that would have been unthinkable just a few years ago.
It is clear that the flurry of modern reforms is about to be stress tested, and constitutional advisers are being asked whether Brexit poses a political or constitutional crisis and, more broadly, if the two can be separated.
‘There are two views,’ says Jeff King, a professor of law at University College London. ‘The first is that Brexit presents a political crisis in which it becomes appropriate to begin looking at changes to the constitution. The second is that it’s a crisis because of a lack of a codified constitution.’
Befitting a constitution that rests upon a wide range of laws, conventions and traditions, the advisers who consider such questions are similarly disparate. Whitehall has in-house lawyers who serve as full-time employees within the Government Legal Profession, while the Attorney General’s Office provides legal advice to government. Academics also provide advice and submit evidence, such as on the House of Lords Constitutional Committee, while private practice lawyers and chambers act on public law in matters addressing the relationship between citizens and the executive. Other select committees also have clerks who, though not lawyers, frequently provide advice on constitutional matters.
While the political dramas resulting from Brexit are well documented, many are less sure such turmoil extends to a genuine constitutional crisis: ‘It’s a bit overstated. The problem is we don’t know what will happen,’ says Stephen Tierney, professor of law at the University of Edinburgh and an adviser to the House of Lords Constitution Committee. ‘There are three eventualities: we have a referendum, with remain likely on the ballot; we leave under Theresa May’s deal; or we leave in a disorderly way in October. The latter is the most constitutionally problematic.’
The anxiety of leaving without a deal stems from the ability of Parliament to perform its traditional role in holding the executive to account. In contrast to legislatures in other countries, Parliament in the UK enjoys absolute law-making authority, proving a legal bedrock for how the rule of law is upheld. The EU by contrast is a protected constitutional system, where judicial review of primary legislation is conducted by the European Court of Justice, which can declare legislation incompatible with EU law.
However, leaving without a deal could hinder Parliament’s ability to effectively scrutinise the immediate aftermath of Brexit. It would bring to a head a problem that has been building for years: that Parliament is increasingly given outline legislation to review, with the government filling in the gaps later with little oversight.
‘A disorderly Brexit will cause issues with the outward-facing international side of the UK’s constitution with the drawing up of new international agreements,’ Tierney continued. ‘It would mean Parliament having to scrutinise a lot of government activity in a very short amount of time. Primary legislation is becoming thinner and less defined and Parliament has not responded.’
Moreover, there is debate as to how well Parliament has performed this scrutinising function to date. In 2017, The Supreme Court ruled that the 1972 European Communities Act had become fundamentally involved in the rights of UK citizens, becoming part of Britain’s nebulous constitution and therefore not merely an international treaty that could be withdrawn by government. The prominent case saw business owner Gina Miller engage Mishcon de Reya to successfully challenge the authority of the British government to invoke article 50 of the treaty of the EU, which hands in notice to withdraw.
Other high-profile government defeats – as seen with May’s attempts to pass her deal – have followed in the Commons. Many see this as Parliament enacting its constitutional role of holding government to account, though others are more sceptical, believing Brexit has laid bare the inadequacies of the British constitution.
‘Parliament has been perceived as to have performed well in holding government to account on these issues,’ continues King. ‘But if government had a stronger hold on Parliament, it could have done as it wished. It’s been an accident of numbers – just 20 more MPs for the governing party could have seen things unfold very differently and the degree of accountability would have been slim.’
Another area where the ability of Parliament to scrutinise government will be tested is when the UK moves to replace a whole pillar of its legal framework, derived from EU law. While common law and human rights will be untouched, existing EU legislation is planned to be frozen into UK law, without EU bodies to enforce it. The consequence will be Parliament wrestling with how much power to grant government to create new legal arrangements to enforce existing EU legislation. Though a potential headache for Parliament, the problem is expected to see a rise of public law litigation.
‘There will likely be litigation arising out of EU law being frozen,’ says Herbert Smith Freehills disputes partner Andrew Lidbetter. ‘For example, if there’s a case where the European Commission would have once enforced a certain law, the [UK] Government will now have to muster a separate legal arrangement post-Brexit. There could be a lack of clarity over what mechanisms will be in place to enforce frozen EU law, and in those ambiguous zones there will likely be litigation.’
Fieldfisher public and regulatory partner Matthew Lohn echoes the point: ‘The law of the UK has either indirectly or directly for 30 years derived some of its law from the EU, so lawmakers will have to carry over those laws if and when we leave, but there won’t be much time to write up new ones.’
Yet few lawyers see such unprecedented challenges as tantamount to a constitutional crisis. The notable footnote is the future of devolution, according to associate professor of law at the University of Oxford and head of Policy Exchange’s Judicial Power Project Richard Ekins: ‘Withdrawal from the EU seems to me to be constitutional restoration rather than collapse, subject to the caveat that the consequences for the devolutionary settlements are uncertain: arguably, EU membership encouraged Scottish secession and so Brexit will discourage it; but there are obviously challenges in relation to Northern Ireland in particular.’
Brexit has certainly politicised the constitution in novel ways, raising questions around the role of the House of Commons, the Lords and referenda and fuelling debates around the basic foundations of Britain’s democracy. Such concerns have only been intensified by the recent struggles of the two main political parties to form stable governments, further unsettling the balance of UK governance. As things stand the UK faces political deadlock and uncertainty, rather than acute constitutional crisis.
‘Some people lament the current constitution and some will hold Brexit as the height of its pathology,’ concludes Tierney. ‘But I think our constitution is a credit and it allows Parliament to act. Brexit has been a political rather than constitutional failure.’