The UK Constitution and Brexit

by George Hatjoullis

The UK constitution is not codified, which is to say, written down in one document. However, the House of Commons Political and Constitutional Reform Committee has produced a document which draws together and summarises current constitutional arrangements and juxtaposes them to suggestions for codification and reform. It is an interesting read.

Unlike codified constitutions the UK constitutional laws and rules have no special legal status. This is explains the common perception that the UK does not have a constitution. A proposed reform is to give the constitution the highest legal status and require all laws to be consistent. The proposed reform explains what is missing now in clear terms.

Constitutional laws may be enacted, repealed and amended by parliament through normal legislative procedures. A simple majority in parliament will suffice to amend, repeal, or enact UK constitutional laws unlike many examples of codified constitutions in which prescribed majorities are required (e.g 2/3 of both houses in the USA) for amendment. This creates the odd situation that the Fixed-term parliament act of 2011 legislates for 5 year parliaments (a constitutional law) and the Fixed-term can only be circumvented by a motion supported by 2/3 of the house (or the absence of any simple majority supporting any proposed government) but the act itself can be amended by a simple majority in parliament. The proposed reform also speaks volumes. It is proposed that constitutional change should require a 2/3 majority in both houses and the majority of people voting in a referendum. It does not say ‘or’  the majority of people voting in a referendum. In the present context this is quite telling.

The executive (the government of the day) exercises power by virtue of acts of parliament, common law or convention. The common law power of the executive includes signing treaties and international agreements. Invoking article 50 is an action under the Treaty of Lisbon so, prima facie, is within the power of the executive. The recent high court ruling focuses on the intended irrevocability of the invocation of article 50. Once invoked the UK leaves the EU, come what may. Hence, invoking article 50 de facto repeals the legislation binding the UK to the EU via the Treaty of Lisbon. Legislation is the exclusive right of parliament and cannot be so usurped by the executive even indirectly. It must be asked.

Much has been made about the people versus unelected judges. This is crass and dangerous. The judiciary is independent and merely interprets and rules on the law. They have stated that under their interpretation parliament needs to be asked. This is an objective statement based on their understanding of the constitution. If they do not understand it then who does? They have not told parliament how it should respond. That would be political interference. The appeal will ask a wider selection of judges. This is normal legal process.

The shrill tone of the Leave camp reflects a lack of confidence in the validity of their case. The majority in favour of leaving is unusually small for a constitutional change. Leaving the EU is a constitutional change, which is the whole point according to the Leave camp. Restoring absolute sovereignty to the UK parliament implies it does not have it under the EU. Restoring it is a constitutional act. Under present constitutional arrangements, only a simple majority in parliament is required to amend the constitution. The proposed reform envisages 2/3 majority in both houses and a majority in a referendum. It does not envisage a simple majority in a referendum alone. A 2/3 majority in parliament is required to change the date of a general election. Surely any constitutional change should require the same test?

The function of the House of Commons is to represent the people in all matters. The House approved an advisory referendum on membership of the EU. It did not approve a binding referendum based on a simple majority and no quorum. Had the referendum been binding on parliament it would quite possibly have added further restrictions such as needing a 2/3 majority for change and/or a minimum number of the electorate to have voted. The total number of the people eligible to vote in the referendum was 46,501,441. The number that voted to leave was 37.44%. How does less than half of the electorate constitute the ‘will of the people’. We cannot attribute views to those that failed to vote but if we were to do so maintaining the status quo would be the logical attribution. In a pluralist representative democracy (which is the UK) parliament represents all the people, even those that fail to vote. It represents the will of the people. It should pay attention to the result of the referendum but it must be asked about whether the UK should leave the EU and precisely what leaving ought to constitute. It is parliament, and only parliament, that represents all the people.