Brexit and the new British Constitution

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15th March 2017

The set out of a textbook on the ‘British Constitution’ used to be straightforward.

(And yes, the British do have a constitution, it just is not codified.  There is a descriptive answer to the question: how is Britain constituted?)

After the various chapters on the executive, legislature, judiciary, local government, nationalised industries, the police, and so on, there would perhaps be a short chapter on Scotland and Northern Ireland.

Wales would have an index entry which said ‘for Wales, see Scotland and Northern Ireland‘.

In other words: the three other component states of the United Kingdom were not taken seriously in constitutional terms. They were, at least for many in England, an afterthought.

This did not stop English politicians invoking ‘British’ as it suited them.  English conservative politicians were fond in particular of calling for a ‘British Bill of Rights’ without a second thought as to the word ‘British’ (or indeed to the word ‘rights’).

This was always misconceived.  Even in the times of old textbooks, the constitution of the United Kingdom was not just that of a greater England, notwithstanding the unifying constitutional doctrines of the powers of the Crown and the sovereignty of parliament.  Scotland, for example, has its own legal system and jurisidiction.  As does Northern Ireland.

(There is no such thing as ‘British law’.  Some laws cover all the jurisdictions of the United Kingdom, but ultimately there are the laws of England and Wales, of Scotland, and of Northern Ireland.  The United Kingdom has always been a form of federation.)

The effect of modern devolution has made the old textbook approach redundant compeletely.

Chapters on Scotland, on Northern Ireland, and even on Wales, need to be towards the start of any constitutional textbook, and not towards the end.

The fact there was never a ‘British Bill of Rights’ (despite ten years of Tory trying) was in large part because it was impossible to repeal the Human Rights Act and enact a replacement in the face of opposition of the devolved powers.  (And because in Northern Ireland, the enforceabilty of the ECHR was written into the Good Friday Agreement.)

A fogey may contend that the sovereignty of parliament still prevails, and that the Westminster parliament may legislate as it wishes.  But that is constitutional theory and not practice.  Such an approach now would not only be arrogant but (as with the aborted ‘British Bill of Rights’) also futile.

Brexit takes place in the constitutional context of modern devolution.  This means that there will be checks and balances in effect even if not in neat constitutional principle.  I have set out over at the Financial Times how the Scottish First Minister has crafted a check and balance out of constitutional thin air: and it has had areal effect in causing a postponement of the Article 50 announcement which was supposed to have been made yesterday.

A constitution regulates what any government can get away with.

In this way, whether the cause of the disappointment is the legislature, the judiciary, or the devolved administrations, the noise of a ‘disappointed’ minister is the sound of a working constitution.


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9 thoughts on “Brexit and the new British Constitution”

  1. I would hold off on rewriting books on the British constitution. It might be more relevant to drop all mentions of Scotland

  2. I wonder if “A constitution regulates what any government can get away with,” is quite right. In some cases this may be true, but in Britain it is closer to conditioning what a government can get away with, without much regularity in application and only patchy enforcement.

    The parts of the state don’t move exactly freely. But the practical frictions between (and within) them are not all readily identified. The interactions are not always resolved predictably, as “regulated” suggests.

    1. Imagine a state where the executive can do as it wishes. That state would still have a constitution, but it lets the executive do as it wants. That is how light – non-existent – the regulation is.

      My proposition is still true for such states.

      1. David, do we really need to “imagine” it? Isn’t this what Britain is becoming?

        I agree with the logic of your reply to @GuyHerbert.
        I just think that what’s going on is more than what your excellent post describes.

        Shona Jolly wrote in LRB back in the autumn about Henry VIII clauses. We’ve now had it confirmed that both Houses lack the mettle to properly exercise the judgement necessary to lead independently of an overweening Executive.

        (Posted 1 Nov before the Miller et al Judgement but after High Court cases were argued)

        Am I justified in calling HMG “overweening”? Well, the Prepare to Leave letters are coming thick and fast. 2.6k of us retweeted the grown son of Dutch man served once such letter. The recipient is a widower, his wife was British, his grown children are British, he has lost the ability to walk. He suffers with Alzheimers, aged 82. And he is told to Prepare to Leave. Where to? Where is this man supposed to go?

        Presumably the 53-year-old Singapore woman who was deported last week has a better chance of faring. It’s her British husband, who lives on Disability Allowance we have to worry about. (

        I appreciate that you’d like this matter to be all about structures, and abstractions you can flow chart. With the layer of human comedy you render so beautifully.

        But lives are at stake. There is no neutral fence upon which to sit. History will judge us each and everyone.

        Just how far do things have to go before you’ll agree when others say: Britain (snort) Banana Republic?

        I’ve been in the “Brexit documentary” game for 9 months, same length as a full-term pregnancy.

        During Art 50 Lobbying, I’ve found myself held captive by the Leader in Lords of one of the major parties for 2.5 hours, no water, no fresh air, thin threads of fresh thinking. Lord _____________ was bubbling with excitement by the time I and fellow lobbyists finally reached the Peers Entrance with the revolving door. I was bored and exhausted.

        I’m ready and able to be Court Jester in the Shakespearean sense. Are you ready to dismantle the fictitious fence upon which you sit?

        Maybe this 16-min movie I started on Monday and finished on Tuesday will help you see what I think is at stake. It’s original footage from my independent project wrapped around a European Commission movie I “found” on the t’internet. It’s constructed so that the call to action at the end can be easily updated.

  3. Right at the top of my worry list given I’m English and have an English child living and working in Scotland is a definition of who is English, who is Scottish, etc. It is understood that if you are in Scotland you fall under Scottish law in your daily life, but if the UK begins to fracture then to name but one very big issue which state pays your pension? How does my child avoid being stripped of entitlement to an English state pension and access to the English NHS if they move back down to England, and conversely how does England avoid a situation where Scotland becomes an independent state but all Scottish pensions are being paid out from England?

    I don’t personally see how we can have a referendum on Scotland without the issue of who is a citizen of which state and what inherited rights or entitlements they are entitled to being sorted out first.

  4. Fascinating as ever. Another angle on the unfathomable depths of chaos and confusion engendered by the EU Referendum.

    One pedantic point – the email version of this post gave ‘Tory’ (as in ‘ten years of Tory trying’ to enact a British Bill of Rights) as ‘Tort’. I assumed that my confusion showed my ignorance of how dispute resolution impacted on human rights so centrally. Auto-correct has such a lot to answer for.

  5. I think the last 8 months has also established, beyond doubt, that an integral part of our unwritten constitution is the convention that building or otherwise procuring the lawful sovereign of these united kingdoms, a large boat or ship, will assist in both foreign relations and the cheering up of national morale.

    Do note that this is only for declaratory purposes, in so far as any substantial constitutional issue in the public eye will inevitably result in a collection of MPs and cabinet minister declaring that the acquisition of the aforementioned boat will be of assistance.

  6. The British constitutional arrangement is a joke.

    No self-respecting citizen should accept devolution, which is basically playing “Let’s pretend we have a democratic federation.”

    All the heart-warming talk about “a country of countries”, “the four nations” etc is a pisstake. They’re not equals. Westminster can retract devolved rights and dissolve the pseudo-parliaments of Scotland, Wales and Northern Ireland at any time.

    As an alternative to Scottish independence it should be considered to elaborate a proper, written constitution for the UK as a federal kingdom (or republic).

    For example, one could orient oneself toward Germany’s basic law (grundgesetz). The grundgesetz has an “eternity clause” for certain constitutional determinations, the federal structure of the state being among them. These principles cannot be changed by parliament, however large the majority.

    And of course FPTP *must* be thrown out.

  7. David, you mention the laws of “England and Wales” but the Welsh Assembly has the power to pass its own primary legislation for some time. There is now and in a very real way Welsh law, separate from English law.

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