Gordon on Brexit: a challenge for the UK constitution, of the UK constitution?

In October 2016, Michael Gordon, Senior Lecturer in Law at the University of Liverpool, specialized in Constitutional law, published an article entitled  “Brexit: a challenge for the UK constitution, of the UK constitution?” in the European Constitutional Law Review. As the title reveals, the article presents two main issues, namely the possible challenges for the UK constitutional system, and whether the Constitution in itself influenced the decision to leave the EU.

Brexit as a challenge for the UK Constitution

In the first part of the article, Gordon discusses the potential consequences of the UK’s departure from the EU in the light of the UK Constitution. Some of the challenges mentioned are, e.g., the transformation of the UK’s legal system that Brexit entails, the involvement of the institutions in the Brexit process and the potential negotiations of new agreements with the remaining EU member states (pp. 410-411).

Leaving aside how interesting these issues might be, they are mainly speculative since the UK’s exit from the EU is still in a very early stage. Although, in January 2017, the UK Supreme Court ruled in the Miller case that parliamentary approval was needed in order to commence the process of exiting the EU. This ruling has provided some clarity with regard to the institutional involvement, but the remaining issues are still unclarified. Therefore, this post mainly focuses on the second question of Gordon’s article.

Brexit as a challenge of the UK Constitution

Under this part of the article, Gordon raises the question as to whether the UK constitution might have contributed to the decision to leave the EU. He places great weight on the fact that the UK does not have a written constitution, but rather an uncodified constitution under which political action is given much space. Gordon further points out that due to the “unprecedented nature” of exiting the EU, any member state wanting to leave the Union would face major constitutional challenges in the process of doing so. Nevertheless, it may be particularly challenging for the UK because of the uncodified nature of its constitution (pp. 435-438).

According to Gordon, one of the decisive factors for the outcome of the referendum, which was held in order to determine whether to remain or to exit the EU, was the UK’s concern about the immigration levels caused by the free movement commitment within the EU. Furthermore, the strong eurosceptic movement, and the fact that the concept of supranational governance can, in some aspects, be considered incompatible with the UK constitution itself could also have influenced the result of the referendum. In relation to this, Gordon also mentions other pre-existing difficulties which have given rise to tensions between the UK constitution and the supranational nature of the EU. One of them is, according to the author, that the UK constitutional mechanisms controlling governmental accountability and responsibility does not correspond well with the supranational governance of the EU. He further states that the above mentioned difficulties in the UK’s constitutional system, that already existed before Brexit, might be exacerbated due to this process (pp. 439-441).

Comments

Even if some main reasons behind the result of the referendum can be pointed out, the decision to leave the EU is the consequence of many elements and cannot be reduced to just a few ones. Having said that, one cannot disregard the influence of the strong eurosceptic movement in the UK, nor the concerns regarding immigration levels in the UK, which greatly clashed with the free movement commitment of the Union.

As Gordon points out, it is probable that the specific features of the UK’s constitution in some ways have contributed to create tensions between the UK and the EU, which influenced the UK’s decision to leave the Union. However, the author fails to fully motivate how these tensions could have affected the UK’s decision. The possible tensions between the UK constitution and the EU might have had an influence on the decision to leave. Nevertheless, one can assume that the majority of UK citizens did not consider constitutional aspects when voting. Over-emphasising such tensions would be equivalent to underestimating the political influences, and by extension also the democratic process of the result of the referendum.

Since the UK, so far, is the only country that has decided to exit the EU, it is difficult to assess the impact that its constitution may, or may not, have had on the outcome of the referendum. The “pre-existing constitutional difficulties” discussed by Gordon might also exist in the written constitutions of other member states. If other countries should decide to follow the UK, such departures from the Union would allow for comparisons of potential constitutional influences of such decisions. However, the author is entirely correct in suggesting that Brexit raises “more fundamental constitutional questions about government and governance, democracy and accountability, power and sovereignty, the national and the supranational” (p. 443).

Lara Bianchet, Nathalie Holvik, and Sahel Noroozi

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About eulaworebro

Örebro Universitet (Sweden)
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3 Responses to Gordon on Brexit: a challenge for the UK constitution, of the UK constitution?

  1. Peralta David says:

    I don’t think that having an unwritten constitution is an essential element to the decision of the UK to leave the European Union. Certainly the wave of immigration that has known the United Kingdom is certainly impressive, it’s probably even the trigger for the referendum. However, I think that if the United Kingdom voted ‘Brexit’ it’s partly the fault of pollsters. Publish a survey the night before the referendum with as a result 51% (Bremain) against 49% (Brexit) has pushed the population to Brexit but not wishing to not necessarily move to go to vote, to move and to tip the balance.
    Don’t underestimate the scope of to referendum that will have consequences not only in relations between the UK and the EU, but also in other countries. Indeed, as a result of this referendum, Scotland will request a vote of independence since when we look at the map of the referendum, Scotland voted to stay in the EU, it would be logical for the Scottish people to ask again a referendum for the independence of Scotland to be able to stay in the EU. About the UK – EU relationship, it will be difficult for the EU to negotiate with other countries members of the Union, to agree on one single text to present to the United Kingdom.
    It is important that the other Union member countries, is aware of the consequences of an exit from the Union, this is the position that the Germany and the France highlight, they advocate strict measures in order to actually show the consequences of the Brexit. On the other hand, avoids a Eurosceptic movement within their own country, have the Member States. Marine Le Pen (President of the political party Front National in France), took the result of Brexit to feed his policy of exclusion from the European Union. However, the France has avoided the worst, because she did not win the presidential election.

  2. Nora Shoki says:

    Gordon’s article was written in October 2016, which means that he did not take into consideration case Miller, judgement given 24 January 2017 and the letter written by Prime Minister Theresa May, published 28 March 2017. Case Miller established that parliamentary approval was needed to trigger Article 50 TEU, thus allowing the United Kingdom to withdraw from the Union. As stated in the post above, the judgement provided clarification concerning the institutional involvement.

    According to Article 50 (2) TEU, there is an obligation for the Member State who wants to leave the Union to notify the European Council. The notification of withdrawal shall include arrangement of the withdrawal and the Member State’s thought regarding the forthcoming relationship with the Union. When the letter written by Theresa May was given to the European Council President Donald Tusk, Article 50 TEU was triggered and the process of the United Kingdom leaving the Union began. Theresa May included the process of withdrawal in the United Kingdom, negotiations between the United Kingdom and the Union and a couple of principles to take into account during the whole process, for example “we should engage with one another constructively and respectfully, in a spirit of sincere cooperation.”

    The question of what will happen next remains even though Case Miller and the letter written by Theresa May gives us a lot of clarity regarding the process of Brexit. However, it is still unclear whether the tension between the United Kingdom and the Union concerning the constitution have had an impact on the United Kingdom leaving the Union. I do agree with the authors of the post that Gordon does not fully explain his argument for this.

  3. Shérimane says:

    The article explains clearly the difference between the two notions that Brexit implies for the constitution of the UK. On one hand, we have a challenge for the UK constitution that will have to find a way to review its legal system in order to adapt to changes imposed by this new challenge but also interested in the situation of the remaining members of the European Union. Even though very little can be said at this stage because the Brexit is a relatively recent event, it is interesting to see that there are already, at this stage, a judgment that can already shed some light on the process of the exit of the United Kingdom from the European Union. On the other hand, we have the difficulty raised by the Brexit is the impact that it implies on its constitution, although this problem is currently unique to the United Kingdom, the post raised the question that, in case of another departure from the EU from another member state, this country would encounter the same problems from a constitutional point of view.

    It is interesting to see the way in which the issue has been addressed. It is said that although many elements entered into account, it seems to be impossible to discern one among others which reject the fault. This article shows that the reasons that led to the Brexit remain relatively unclear but they have brought their share of new challenges. It is interesting to note also that, although the choice was based on them, the citizens did not assess the situation as a whole and seen all the notions that the Brexit would imply, for instance the constitutional issue. It is also interesting to see that it was noted that the Brexit was not only based on legal values, but also on political values.

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