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

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

For anyone with a passing interest in the current affairs of the United Kingdom, one word has come to dominate news headlines — Brexit. The latest gambit in this ongoing drama has been United Kingdom (UK) Prime Minister Boris Johnson’s decision to prorogue — or suspend — Parliament. This has been decried as undemocratic, an affront to democracy and a coup. What has become clear to me since the referendum on the UK’s membership of the European Union (EU) was announced in 2015 is that the entire process has been driven by emotional reporting and reaction rather than logical analysis and debate. This applies across the modern reporting spectrum from social media to agenda-driven news organisations to established media outlets. There have been many articles published seeking to explain various aspects of the situation however these are usually buried somewhere away from the headlines. Against this backdrop it can be difficult to understand exactly what is going on.

I decided to put together an explainer so that you, dear reader, may have an understanding of the framework within which the UK operates and how that applies to the current state of affairs. The reporting of Brexit hinders, rather than facilitates such learning. This is not an opinion piece; I will not discuss the merits or otherwise of leaving or remaining in the EU. I will provide a brief overview of the EU and how it came to be. I will do the same for the UK’s constitution. If you seek an in-depth debate or analysis you have, unfortunately, come to the wrong place. If you seek a basic understanding of the background to current events then read on.

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.

In 1951 West Germany, France, Italy, Belgium, The Netherlands and Luxembourg formed the European Coal and Steel Community (ECSC). The logic of the ECSC was simple; to wage war, nations need a lot of coal and steel. Creating a single market for those commodities with oversight from all members would prevent any nation embarking on a program of armament and reduce the risk of war. The ECSC was soon joined by the European Economic Community (EEC) and the European Atomic Energy Community (EAEC) to create the European Communities (EC) which further enhanced integration, transparency and cooperation between members. The UK joined in 1973 and further expansions throughout the ’80s, ’90s and 2000s brought membership to the 28 nations which today comprise the EU. The EU itself was formerly incorporated in 1992 creating a single, unified community.

Joining the EU is, in simple terms, a two-stage process. Prospective member states must agree to accept the body of European law — both past and future — which is derived from the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) commonly referred to as the Treaties. Existing member states must all agree to the prospective member joining. The Treaties themselves are unique; they are international treaties however unlike most international treaties they are a direct source of law which applies to all member states. Indeed, the Treaties are the supreme source of law for member states and cannot be overridden or disregarded by domestic legislation. This ‘setting of our laws by foreigners’ is a bone of contention for many, yet it is often overlooked that the EU may only legislate within its areas of competence, such as the customs union, agricultural and fishing policies. These areas are laid out in the Treaties and the Treaties themselves may only be amended by agreement between all member states. Secondary legislation is enacted by the three administrative and legislative bodies of the EU. The European Council comprises the heads of state or government of members states and represents national political objectives. The European Commission, which has sole competence to instigate legislation, represents the objectives of the European Union. Finally, the directly elected European Parliament represents the citizens of the EU. Legislation instigated by the Commission and agreed to by the Parliament and Council must be in keeping with the competencies bestowed by the Treaties.

A key component of the EU is the single market. This essentially means that all goods can be produced and sold in any part of the EU without restriction. Imports and exports enjoy equal treatment wherever within the EU they occur. The single market includes the right of every EU citizen to work or establish a business in any part of the EU. This freedom of movement has become an issue in some member states with a perception that domestic economies are being undermined by cheap foreign labour at the expense of local workers.

In summary, the EU began as a project between six nations to ensure a peaceful future for Europe. It has expanded into a 28 nation behemoth with its own courts and currency. It encompasses some 500 million citizens and has an increasing influence on the day to day workings of its member states. It is not inherently bad, it is not inherently good. So how did the UK come to decide to leave this club of nations?

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.

Both campaigns were devoid of rational debate or consideration of the possible consequences of either outcome. The leave campaign focussed on ‘taking back control’ and spurious promises of hundreds of millions of pounds per week being freed up for spending on public services. The remain side promised economic armageddon and the erosion of human rights should vote leave prevail. It was a circus, and the most shameful political display I have seen. Students of politics, law, business or economics may have enjoyed exercising an informed opinion. The remainder of the population was subjected to the emotional barrage of both campaigns. In any event, by a margin of 52% to 48%, the UK decided to exit the EU. In geographic terms, London, Scotland and Northern Ireland voted to remain in the EU while most other regions of the UK voted to leave. What happened next requires a basic understanding of the UK’s constitution.

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:

• Magna Carta, which set the UK on the long road to representative democracy is perhaps the best known such statute.
• 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.

The United Kingdom’s constitution is complex and not easily understood. It contains a number of apparent contradictions and can appear confusing to people used to a definitive written document. In practice it is fluid and allows the constitution to develop organically through the interplay between its various elements. It is not perfect but it has proven to be remarkably successful; it is perhaps because of the flexibility and interplay between the elements that it has been able to survive for so long.

So, there we have a potted history of the European Union and a summary of the constitution of the United Kingdom. It is by no means comprehensive but I hope it has furnished you with a little knowledge of the institutions which are currently in conflict. Is there anything Brexit, EU or UK related that you would like explaining? I’d love to hear your views.