Brexit, the EU and the UK constitution — a beginners guide

A simple introduction to the European Union and the UK’s constitution

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What is the European Union?

The EU began life in the aftermath of World War 2. European leaders, fatigued from two global conflicts centred on Europe in the space of 25 years and from a long history of bloody conflict between European nations, resolved to create a brighter future for the continent.

The referendum

Throughout the 1990s and 2000s, a perception emerged that the EU was bad for the UK. It was believed that we gave more to the EU than we got back and yet were subjugated by EU law. It is impossible to determine how widespread these beliefs were. Before the 2015 general election the incumbent Prime Minister, David Cameron, campaigned with a promise of holding a referendum on membership should his party win the election. Win they did and the referendum was arranged for 23rd June 2016 with the question ‘should the United Kingdom remain a member of the European Union or leave the European Union?’ Campaigning for the referendum began and the seeds for the debacle which was to follow were sown.

The UK constitution

The UK’s constitution is unwritten. There is no single document describing the structure, aims and limits of the nation or its government. Instead, the constitution is comprised of several elements. This structure may appear unusual, or even haphazard, to readers from the US, Canada or other nations with a written constitution. Having developed over a thousand years it has proven to be remarkably resilient.

The rule of law

The most basic tenet of the constitution holds that no-one is above the law. It also holds that laws should be accessible — we cannot be expected to adhere to rules which we cannot be aware of.

The separation of powers

Laws are passed by the legislature (parliament), put into practice by the executive (the Prime Minister and their cabinet ministers) and interpreted and adjudicated on by the judiciary. Like any healthy democracy, no one person or body gets to have their cake and eat it.

Parliamentary sovereignty

The doctrine of parliamentary sovereignty holds that Parliament is the ultimate source of UK law. It can make and unmake any law and it cannot bind any future parliament. This is a sound democratic principle as the primary source of legislation is the directly elected House of Commons. The doctrine was historically uncontroversial but was thrown into doubt when the UK entered the European Community in 1973. Because EU law is considered supreme it can be argued that Parliament is not in fact sovereign, as it cannot unmake laws which were enacted by the EU. This is true but it can also be argued that it was Parliament that enacted the European Communities Act 1972 which subsumed EU law into domestic law; the doctrine holds that future Parliaments would be free to unmake that law, thus upholding parliamentary sovereignty.

Constitutional statutes

The closest thing the UK has to a written element of its constitution. Although there is no definitive list of constitutional statutes (this is ultimately for the judiciary to determine) they can be defined as those laws enacted by Parliament which affect the very fabric of the nation. Examples include:

  • The Petition of Right 1628 which further set out limits of royal power.
  • The Acts of Union which bound England, Scotland and Wales together as a single nation.
  • The Habeas Corpus Act 1679 which codified the ancient right for a court to examine the lawfulness of a subject’s detention.
  • The Bill of Rights 1689 which further limited the power of the monarch and empowered Parliament.
  • The Act of Settlement 1701 which limited accession to the throne to Protestants.
  • The Parliament Acts of 1911 and 1949 which limited the ability of the unelected House of Lords to undermine legislation passed by the elected House of Commons.
  • The European Communities Act of 1972 which formalised the UK’s membership of the EU and recognised EU law as part of UK law.

Constitutional conventions

Here’s where things get a little more complicated. Conventions are rules which are observed by the various branches of government but which are not formalised. They are little more than an agreed and accepted way of doing things. In the UK the Prime Minister is, almost always, the leader of the party which holds the most seats in Parliament. This is, perhaps surprisingly, not a formal rule but a convention. That the monarch will act on the advice of government ministers is an informal convention. Conventions can come and go and do so through the collective will of Parliament and the executive. For example, the mobilisation of the armed forces is, via the royal prerogative (more on that to come), in the hands of the Prime Minister however in 2003 the decision to intervene militarily in Iraq was put to Parliament. Such action has thus come to be viewed by some as a constitutional convention in the making. Conventions allow accepted practices to be recognised and relied upon but they also allow changes to those practices as societal mores change.

The Royal Prerogative

The royal prerogative is best described as a hangover from the time when the monarch enjoyed absolute power. Over centuries these powers were wrestled from the monarch into the hands of the government. Thus, the prerogative powers are those powers which the Prime Minister may exercise without the support of Parliament or legislation. The appointment of Prime Ministers is a prerogative power which, in theory, the monarch could use to appoint anyone of their choosing; by convention however, the leader of the party with a majority of the House of Commons will be appointed. The mobilisation of the armed forces is a prerogative power which is exercised not by the monarch but by the Prime Minister. The prerogative power to enter into, and exit, international treaties came to prominence following the Brexit referendum. The government argued that notifying the EU of the UK’s intention to leave came within the remit of the royal prerogative and could, therefore, be done without involving Parliament. A legal challenge argued that, as the EU Treaties were of constitutional significance in that they directly affected the rights of UK citizens, Parliament must approve any action. The Supreme Court of the United Kingdom agreed, leading to parliamentary involvement in Brexit proceedings.

Copywriter, photographer, husband, father, soon to be dog owner.

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