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).
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