The Brexit-related machinations of recent weeks have certainly made for excellent political theatre. But they hardly reflect well on the British constitutional system, which is now audibly creaking under the weight of Brexit as different institutions vie for control of the process.
The writing began to appear on the wall almost immediately after the referendum, when controversy arose about who had the power to trigger Article 50. When the Supreme Court weighed in in the Miller case, it came down firmly in favour of parliament, ruling that the government would be able to initiate Brexit only if parliament empowered it to do so, albeit that the UK parliament could lawfully go ahead and authorise the triggering of Article 50 whether the devolved legislatures liked it or not.
At the time, Miller appeared to be of immense political significance because it put parliament so firmly in the Brexit driving seat. However, 18 months on, the picture looks rather different, and the judgment has proven to be far from the final word on the underlying controversies.
For one thing, the devolved and UK governments have remained at loggerheads, in particular over where “repatriated” powers should lie post-Brexit. Indeed, the European Union (Withdrawal) Act 2018 was enacted without Holyrood’s consent, notwithstanding a well-established convention that UK legislation concerning devolved matters and powers should normally be enacted only with devolved legislatures’ blessing. Thus, just as Miller was animated by disagreement about the relative constitutional powers of UK and devolved institutions when it came to triggering Brexit, so the Withdrawal Act is mired in controversy about their respective roles when it comes to shaping the post-Brexit legal landscape.
The Supreme Court has once again been called upon to settle the matter—judgment is expected later this year—following a challenge by the UK government to the constitutionality of Holyrood legislation enacted in the light of its opposition to Westminster’s Withdrawal Act.
While the territorial-constitutional aftershocks of the referendum continue to reverberate in the courts, the tussle between parliament and government also continues. Parliament attempted to assert some degree of control over the Brexit negotiations by adding provisions to the Withdrawal Act requiring a so-called meaningful vote. But whether those provisions really deliver is very far from certain. While the Act prohibits the ratification of any Withdrawal Agreement in the absence of parliamentary approval, a refusal by parliament to sign off would most likely precipitate a chaotic, “no deal” Brexit, thus rendering the “meaningful vote” little more than a fait accompli. Attempts to win something more concrete were scuppered.
“This episode highlights the inadvisability of blithely attempting to resolve a complex issue by referendum”All of this is very far from the excitement with which the Supreme Court’s judgment was greeted back in January 2017. Notwithstanding outlandish newspaper claims that some of the judges involved in Miller were “enemies of the people,” it was never realistic to suggest that the case was about blocking Brexit. The real significance—or, more accurately, the true potential—of the case concerned not whether Brexit happened, but by what process, and by whom, the meaning of Brexit would be determined.
By deciding Miller as it did, the Court handed parliament a golden opportunity to shape Brexit. But the opportunity was squandered almost immediately, for fear of parliamentarians, like the judges, being cast as enemies of the people. Legislation was enacted hot on the heels of the judgment, handing the prime minister the broadest of powers to trigger Article 50 at the time of her choosing.
What might parliament have done instead? It could have allowed the government to trigger Article 50 only once it had obtained parliamentary approval of its negotiating objectives. This would have ensured that such objectives actually existed prior to the two-year countdown commencing and that they commanded the support of a majority of parliamentarians. None of this would have thwarted “the will of the people”—who were asked only whether the UK should leave the European Union, not what its future relationship with the EU should be—and would have avoided the current situation. Less than a year from exit day, it is unclear whether the UK’s negotiating position (to the extent that it can be discerned at all) commands the support of the majority of the governing party, let alone parliament.
The UK’s famously “unwritten” constitution is a tapestry of legal rules, fundamental principles and political understandings, the delicate fabric of which has been placed under considerable strain. The referendum made it nigh on politically impossible for parliament to capitalise on the opportunity that the Miller judgment afforded. It was also used to justify overriding established convention governing the relationship between the UK’s constituent nations. And “the will of the people” is played as a trump card that distorts and closes down political debate even though, given the rudimentary nature of the referendum question, it more accurately resembles a blank canvas upon which politicians can, and do, paint at will.
It has become fashionable to argue that the constitutional problems brought to light by Brexit show the need for a codified constitution. In fact, whether such a constitution would have helped is unclear, not least because much would depend upon what it said, as opposed to the simple fact of its being codified.
But what this episode does highlight is the inadvisability of blithely attempting to resolve a complex and multifaceted issue by recourse to the device of a referendum that is necessarily binary in nature, and that clumsily attempts to graft a direct-democratic device onto a constitutional system rooted in the representative-democratic tradition.
None of this is an argument against governing in line with the will of the people; rather, it is an argument in favour of discerning popular will in a way that is both suited to the nature of the issue in question, and that can be accommodated by, rather than distorting, the fabric of the constitution itself.
Mark Elliott is Professor of Public Law at Cambridge. Along with Jack Williams and Alison L Young, he is the co-editor of a newly published collection of essays examining the constitutional implications of the Miller case and of Brexit more generally. The UK Constitution After Miller: Brexit and Beyond is published by Hart Publishing.
