Even if Britain stays in Europe, we need a new constitutional settlement

Imagine that Britain Remains in the European Union. Admittedly this does not look so likely at present, but who knows in these uncertain times? If Brexit is called off, we must not simply return to the constitutional status quo. We surely need a new settlement.

Brexit has revealed many flaws in Britain’s aged constitution. Too many of its uncodified rules and conventions are unclear or ambiguous, including many of serious national importance. There is so much that is uncertain: what is the status of an “advisory” referendum; what exactly are the powers of the executive, given that it took litigation (the Miller case) to establish that the government could not trigger Art 50 without parliament’s consent; and what about the Monarch—could her Majesty refuse royal assent to a Bill (eg a backbencher Bill extending Art 50) for the first time in over 300 years? Who has control over parliamentary business and should the Speaker’s word be final? Surely the answers to such questions should be easier to ascertain. Is it not now time to codify the British constitution?

But even if it is desirable to codify the constitution, there is no easy way to bring that about. Options include some sort of constitutional convention, or possibly a “People’s Assembly.” Then there is the question of whether people are sufficiently motivated, and whether they want a written constitution.

It seems doubtful that Britain could reach a consensus on a codified constitution that eluded it in less disturbed times. For, only a few years ago, the Commons Political and Constitutional Reform Committee published its report (“A New Magna Carta?”) on the prospect of a UK written constitution. That report was the culmination of four years’ effort. But no codified constitution came of all that work. Indeed, it is very possible that the Brexit crisis, far from being a “constitutional moment,” has deepened existing divisions in society. For a lack of concern to resolve things in common, along with very distinct political identities, militate against the calm, mature reflection necessary to address these issues of contested authority. Our present turbulent circumstances foster passion not reason.

So, instead, I make a more modest suggestion. Everyone knows that “Taking back Control” was a major feature of the EU referendum. Indeed, achieving legal autonomy from the EU has been a government red line in the Brexit negotiations. But the issue arises of how to protect UK legal autonomy if it were to remain an EU member, for a common perception has been that the UK’s sovereignty has diminished while in the EU. As a solution, how about introducing a UK Sovereignty Act, given that sovereignty has been at the heart of Brexit? Such a statute could require the UK parliament to approve the application of any EU law which infringed the UK’s fundamental constitutional principles, such as those in Magna Carta, or the Human Rights Act.

Would this be compatible with EU law? Some will scoff at a Sovereignty Act. They will say sovereignty legislation has been tried and is pointless. For example parliament adopted the EU Act 2011, which not only required a referendum before any further major transfer of power to the EU could take place, but also stated that EU law had force in the UK only by virtue of parliamentary statute. Eurosceptics have, perhaps predictably, for many years demanded a greater strengthening of UK sovereignty, to make it clear that no EU law could undermine parliament’s ultimate authority. The EU Act 2011 was seen by many as highly unsatisfactory, merely restating the existing position of parliamentary sovereignty, without addressing its interaction with the conflicting supremacy of EU law.

Is there a better way? Interestingly, in 2014, David Neuberger, former President of the UK Supreme Court, in an extra-judicial lecture, suggested the “German constitution enables a German court to say that German law sometimes trumps EU law. This is an option which is much more rarely, if at all, open to a UK court as we have no constitution to invoke.” This statement appeared to suggest national legal sovereignty could override EU law in a way other than the trivial (or the tautologous) way of the 2011 EU Act, but that it would take a different kind of constitution, a written one, like that in Germany, for this to work.

Perhaps Neuberger spoke too soon, and the unwritten British constitution proves capable of handling this issue. For the UK Supreme Court, and Neuberger himself, in two very important recent cases (HS2 in 2014 and Pham in 2015) held there exist fundamental constitutional principles, which may take priority over other laws, including sometimes even fundamental laws such as the European Communities Act 1972 itself. This suggests that, in assessing the relationship between UK and EU law, UK courts may invoke (implicit) constitutional norms, and in so doing restrict the capacity of EU law to take priority over domestic law. In this way, British courts could already protect UK constitutional sovereignty in a way compatible with remaining in the EU. Indeed, as Art 4(2) EU Lisbon treaty already requires that the national identities of EU member states be respected, this would not be completely out of line with EU law.

But enshrining this in legislation such as a Sovereignty Act would add something to the existing caselaw. For it could make these judicial holdings more explicit and public if their essence were set out in legislation. It could also make them more democratic, by extending the remit to parliament, as well as the courts. Such legislation could enable citizens to bring an action in UK courts on the basis that EU law undermined UK constitutional rights. UK courts could refer the matter to the European Court of Justice, but the UK parliament could have the final say in determining if UK or EU law should be applied, thus counterbalancing any claims of an unelected judiciary having too much power.

No doubt objections could be made to this proposal, and there is no space here to consider and rebut them. Objections notwithstanding, I’d argue this suggestion is definitely preferable to the current pursuit of unicorns.