The EU Referendum of 23 June 2016 has precipitated nothing short of a constitutional crisis. This has largely been overlooked. Most politicians are still trying to figure out – and replay – what has occurred. But when they have recovered from the trauma of the event, they might wake up to the political opportunities Brexit now makes possible. The mantra of “taking back control” only gets us to first base. The challenge is to seize this constitutional moment to revive the democratic foundations of the British state.

 

The increasing use of referenda – widely supported by parliamentarians – is an obvious symptom of a loss of faith in our traditions of parliamentary government. And the disarray in parliamentary politics following the unexpected result of the Brexit vote is a further manifestation. Having transferred to the electorate responsibility for the decision to break with the EU, the great majority of MPs – evidently committed Remainers – have ever since been struggling to reconcile their personal convictions with popular sentiment. This marks a major failure of political representation, with 95 percent of MPs voting Remain while a majority of voters backed Leave. Since the Remain-Leave divide cuts right across party lines, it has resulted in the inability of parliamentary government, which depends on a clear division between the Government and Opposition, to deliver effective outcomes.

 

Of even greater significance has been the Referendum’s impact on the territorial constitution. Border difficulties in Northern Ireland have been prominently flagged, but from a constitutional perspective the consequences for Scotland are more profound. The SNP may have lost the 2014 Independence Referendum but that fact that 44.7 percent of Scots voted for independence on a turnout of 85 percent indicates that the union is not working at all well. Given that a substantial majority (62 percent) in Scotland voted Remain in the EU Referendum, it seems obvious that Scottish dissatisfaction will not go away and is likely to further undermine the authority of the current constitutional settlement.

 

So how do we respond to these serious symptoms of discontent?

​

Bruce Ackerman, the leading US constitutional law scholar, recently argued that Brexit marks a “great historical turning point” and presents the UK with a unique opportunity for constitutional renewal.  He suggests the best way forward is to establish a specially elected Constitutional Convention which could make proposals for a modern written constitution.[1] But how might we motivate MPs to establish such a Convention? As Ferdinand Mount elegantly put it, constitutional reform remains “the poetry of the politically impotent”. In its formal Agreement of 2010, the Coalition Government had stated dramatically that “the Government believes that our political system is broken”, but the resulting reforms either failed, were minor or were simply unintended.[3] Whatever idealistic position parties take in opposition, no party in government wants to establish a process that might lead to their loss of power.

 

This is a serious drawback. But let’s consider what gains constitutional reform might bring.

 

“Taking back control” cannot mean restoring the old orthodox doctrine of parliamentary sovereignty, which in any case is not an expression of the unlimited authority of Commons’ majorities. The doctrine is formal, abstract and legal: it simply expresses the rule that an Act of the Crown-in-Parliament is the highest expression of law. It therefore identifies the ultimate law-making authority in the state, but has little to say about the relative power of either the main political actors – Commons, Lords, Crown – or of Parliament vis-a-vis Government. What it makes crystal clear, however, is that the source of all political power comes through Westminster and Whitehall.

​

EU membership put major strains on the coherence of that doctrine but is not the only institutional development that does so. The devolution settlement has seriously qualified parliamentary sovereignty. Scottish and Welsh governmental arrangements are now “a permanent part of the UK’s constitutional arrangements” which cannot be altered by Act of the Westminster Parliament but only by the will of the Scots or Welsh expressed in a referendum.[4] The orthodox doctrine has been compromised, with direct consequences for the UK’s governing arrangements. This is the basic political fact from which any discussion about constitutional renewal must begin.

 

Any Constitutional Convention would have to recognize that the United Kingdom is no longer a unitary state. It has become a union state and is now on the verge of becoming a federation of “states”. The current situation is often characterized as asymmetric federalism in which devolutionary schemes exist in NI, Scotland and Wales but not in England. The asymmetry comes from the fact that the Westminster Parliament acts both as an English and UK Parliament, leading to the claim that federalism cannot work in the UK because, with one of the units containing 80-85% of the population, the federation would be distorted.

 

But there is another view. This alternative begins with the argument that the time has come for us to recognize that the Westminster Parliament is in reality an English Parliament. Arguably this has always been so, with Welsh, Scottish and Irish representatives at various historical stages being invited to attend. The advantage of looking at the situation in this way is that there is no longer any need to devolve from Westminster. Establishing a federation entails not devolution from Westminster but rather the evolution of a new layer of the federation that is the UK.

 

The solution is to effect home rule all round based on already-established Parliaments. Scotland, Wales and Northern Ireland have their own distinctive Parliaments and Governments, and so too should England in Westminster and Whitehall. This has many potential gains.

 

First, having struggled for too long – since 1911 at least – with various unsuccessful attempts to reform the House of Lords, the problem just evaporates: England can follow the rest of the UK in adopting a unicameral Parliament. The Commons – suitably reduced in size – can act as the legislature and institution of scrutiny. The Lords can simply be abolished. This will reduce some of the astronomical refurbishment costs of the Palace of Westminster, much of which could be converted into a heritage centre devoted to the remarkable history of the English-speaking peoples.

 

Secondly, more proportionate electoral arrangements might be introduced in England, bringing it into closer alignment with electoral arrangements in other parts of the UK.

 

Thirdly, the system of English government can be simplified. At present the UK Government comprises Ministers, some of whom – Justice, Education, Health, Transport, Culture, Communities and Local Government – perform English-only governmental roles while others – Defence, Foreign Affairs, International Trade and International Development – have a UK-wide remit. With home rule, all matters of internal government can be dealt with by an English government formed by general elections of English constituencies.

 

Finally, one major innovation is required: the establishment of an entirely new federal structure of government to deal with external affairs such as defence, foreign affairs, international trade and international development together with certain common UK issues such tax, social security and the reassignment of revenues to meet the needs of equal citizenship.

 

This is a new and original scheme. Most federal proposals were devised to bring together otherwise autonomous units into a common venture, whereas this is a proposal to delegate power from a formerly centralized state into a new federation. The opportunities for rejuvenating democratic politics are considerable. The greatest challenge is to establish a layer of UK government that could break with tradition by locating itself closer to the geographical centre of the UK, such as Manchester, Leeds or Birmingham.

 

There are undoubtedly many obstacles in trying to get this onto the political agenda, but the stakes should not be underestimated. The essential point is that Brexit is potentially a constitutional moment and the issue is whether we continue on a course that is leading to the progressive paralysis of our governing institutions and the gradual disintegration of the British state or whether we are prepared to grasp the challenge that constitutional renewal presents.

 

​

References

[1] Bruce Ackerman, “Why Britain needs a written constitution – and can’t wait for Parliament to write one” Political Quarterly early online, 7 June 2018.

[2] Ferdinand Mount, The British Constitution Now (London: Heinemann, 1992), p.2.

[3] “The Coalition: Our Programme for Government”, Cabinet Office, 20 May 2010, s.24. See Martin Loughlin and Cal Viney, “the Coalition and the Constitution” in Anthony Seldon and Mike Finn (eds.) The Coalition Effect 2010-2015 (Cambridge: Cambridge University Press, 2015), ch.2.

[4] Scotland Act 2016, s.1; Wales Act 2017, s.1.

 

About the author

Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science.