Brexit, Article 50 and the Contested British Constitution

DOIhttp://doi.org/10.1111/1468-2230.12228
Date01 November 2016
Published date01 November 2016
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LEGISLATION
Brexit, Article 50 and the Contested British
Constitution
Sionaidh Douglas-Scott
This article discusses the early stages of the Art 50 TEU process, and those aspects that relate most
clearly to British constitutional law. Its overarching theme is that the Brexit process is rendered
highly problematic by the lack of anycoherent conception of the Br itish Constitution. Different
parties settle on interpretations of constitutional law that support their case, but often there is no
determinative answer. Three broad issues are examined in order to substantiate this claim: the
EU Referendum, the triggering of Article 50, and the Devolution aspect of Brexit. I argue that
each of these issues reveals tensions and competing constitutional interpretations that suggest
that the British Constitution is ill-equipped to deal with Brexit.
INTRODUCTION
On 23 June 2016, the UK overall voted to leave the European Union, by a
majority of 51.9% to 48.1%.1InordertoleavetheEU,however,theUKwill
have to follow the process set out in Art 50 of the Treaty of European Union
(TEU). This article discusses the early stages of the Art 50 process, and those
aspects that relate most clearly to British constitutional law. Its overarching
theme is that the Brexit process is rendered highly problematic by the lack of
any coherent conception of the British Constitution. Different parties settle on
interpretations of constitutional law that support their case, but often there is
no determinative answer.
This point may be illustrated with the example of sovereignty. There has
been much talk of sovereignty in the Referendum context, with certain parties
employing a mantra of ‘Take back control’, but there has been less clarity as
to what sovereignty actually means. However, at its most basic, there are at
least three notions of sovereignty that are relevant in the context of Brexit,
and they are often confused. The first is parliamentary sovereignty, which is said
to have particular resonance in the UK because, due to the vagaries of the
uncodified UK Constitution, the Westminster Parliament has been recognised
Anniversary Chair in Law, Queen Mary University of London. I would like to thank an anonymous
reviewer for comments and suggestions. In thinking about the issues in this article I have learned
much from discussions with Professor Sir David Edward, Professor Michael Keating and Dr Kirsty
Hughes, although they might not agree with everything I write here, and any errors are of course
completely my own.
1 See the Electoral Commission, UK Referendum results: http://www.electoralcommission.org.
uk/find-information-by-subject/elections-and-referendums/past-elections-and-referendums/
eu-referendum/electorate-and-count-information
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited. (2016) 79(6) MLR 1019–1089
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Brexit, Article 50 and the Contested British Constitution
as a body with unlimited legislative power. Yet the parliamentar y sovereignty
of a representative democracy may seem to be at odds with popular sovereignty as
exercised in a referendum. Popular sovereignty also has other implications, such
as in Scotland, where an indigenous Scottish tradition claims that sovereignty
resides in the Scottish people, in spite of the alternative claims of Diceyan par-
liamentary sovereignty. Thirdly, there is external sovereignty: whereby a country
may be sovereign and recognised as independent by the international com-
munity. But states recognise that international agreements such as NATO, or
EU treaties, curb sovereignty in practice. However, these constraints are will-
ingly accepted by states because of the benefits that pooling or ceding some
sovereignty can bring - indeed it can even enhance sovereignty in another sense
of a state’s power or ability to deal with certain issues.
These are three different concepts of sovereignty, but they have become very
confused in the context of Brexit and the UK’s relations with the EU. Part
of the problem is that not only are these conceptions at war with each other,
but that they are also sometimes internally incoherent.2Sovereignty claims are
also bound up in three broader issues that are discussed in this article: the
Referendum, the triggering of Article 50, and the Devolution aspect of Brexit.
I argue that each of these issues reveals tensions and competing constitutional
interpretations that suggest that the British Constitution is ill-equipped to deal
with Brexit.
THE EU REFERENDUM ACT 2015 AND THE ROLE
OF REFERENDUMS IN UK LAW
First, some reflections about the Referendum itself. The EU Referendum was
a creature of the EU Referendum Act 2015. There is no requirement in the
Act that the UK Government implement its results, nor does the statute set any
time limit for implementing a vote to leave the EU. It was an advisory rather
than a mandatory referendum, enabling the electorate to express its opinion
before any legislation might be introduced.3
The EU Referendum vote is an expression of popular sovereignty. But ref-
erendums have not been a highly significant feature of UK Constitutional law
and there is still uncertainty as to their place in our Constitution,4and how
they accord with a constitutional tradition based on parliamentary sovereignty.
UK-wide referendums were not used until the later 20th century, and, notably,
many important issues such as declaring war, decolonization, abolition of capital
2 For example, as Tomkins and Turpin note, the label ‘parliamentary sovereignty’ is misleading.
‘What the doctrine establishes . . . is the legal supremacy of statute, which is not quite the same
thing as the sovereignty of Parliament’. A. Tomkins and C. Turpin, British Government and the
Constitution: Text and Materials (Cambridge: CUP, 2011) 59.
3 This is in contrast to, for example,the AV referendum, instigated by the Parliamentary Voting
System and Constituencies Act 2011, s. 8 of which provided that alternative vote provisions
would come into force if there were a majority of ‘Yes’ votes cast in the referendum. In the
event, there was a ‘No’ vote and so this did not happen.
4 However, it should be noted that plebiscites were reasonably frequent in the British colonial
context, and also associated with the process of decolonization.
1020 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 1019–1089

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