Constitutional Brexit: Why we need courts to determine the constitutional arrangements of the UK

Posted On: 
26th January 2017

We have moved on from the vague concept of 'hard' or 'soft' Brexit to a much clearer goal: a constitutional Brexit, says Dr Sue Prince and Dr Kubo Mačák of the University of Exeter Law School.

A 'constitutional Brexit' makes parliament stronger by reinforcing its ability to provide a check on Government says Dr Sue Prince and Dr Kubo Mačák.
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The process of the UK’s withdrawal from the EU has been given many epithets thus far. The initial cryptic phrase ‘Brexit means Brexit’ was soon dropped for ‘a red, white and blue Brexit’. More recently, the Prime Minister was said to have resolved the supposed dilemma between a ‘hard Brexit’ and a ‘soft Brexit’ in favour of a ‘clean Brexit’. Happily, after this week’s Supreme Court’s ruling in the Miller case, the country has moved considerably closer away from vague sobriquets and towards a much clearer goal: a constitutional Brexit.

The UK is almost unique in not having a codified constitution we can look to when difficult or complex questions arise. Our constitutional arrangements can therefore sometimes be opaque. In addition, we have complicated residual powers in the form of the royal prerogatives which date back to a time in the Middle Ages when the King had all of the power and only summoned Parliament when he wished to raise more taxes.

Following the Glorious Revolution the Bill of Rights 1688 sought to redistribute the powers of the Monarch and moved us towards a constitutional or more symbolic monarchy and the prerogative powers that the King has once used so freely were now vested in the government of the day. These powers are still in the hands of the government. They give wide powers over war and peace, the armed forces, the conclusion of treaties and many more.

However, the courts have always classified these powers as “residual” so where they conflict with an Act of Parliament then the statute takes precedence. In this way, over time the prerogative is shrinking and this is very much in line with more modern interpretations of governance which tend to focus on accountability, certainty and the rule of law.

When the EU Referendum Act 2015 was enacted, it was silent as to the effect of either outcome: either staying in or leaving the EU. In this latest judgement the Supreme Court said under our constitutional requirements it is for Parliament to ‘pull the trigger’ to leave the EU. The principle of parliamentary sovereignty is paramount in the UK constitution and if a statute operates to guide the state then it is not for the government acting alone to use prerogative powers to change the nature of things.

Other countries could just look to the pages of their constitution but in the UK sometimes we just don’t know what the ‘constitutional requirements’ might be until they are pronounced by the courts.

In making their decision the Supreme Court is not just indicating the way of proceeding in the current circumstances on Brexit but they are also looking to situations yet to come by laying down guidance as to how prerogative powers might operate in other circumstances in the future: for example, if the government wishes to leave the European Convention on Human Rights. Judicial case-law is therefore not only about the facts at hand but it is also meant to operate as a strong precedent.

In addition to ensuring a constitutional Brexit, this case makes parliament stronger by reinforcing its role as a vital check on government power under the UK constitution. The judgement enshrines that principle. What happened in the Supreme Court this Tuesday thus cements the very values that those seeking to leave the EU desire.