The constitutional problems Brexit throws up

There’s been a lot of talk about the nature of democracy of late in Britain. It has been shaped by the idea that to oppose the referendum result is inherently undemocratic – it’s the will of the people, goddamnit, is heard a lot now, particularly from the Conservative side of the House. What it has made me consider is the nature of the British form of democracy and how it actually functions; as well as how the EU referendum was essentially a perversion of it that has led us all into a place where the entire unwritten constitution is in its greatest crisis perhaps since the Restoration.

Consider for a moment referenda of the past. The 1975 one on Europe was based around the idea that Britain had been taken into the EEC by the government of the time and the referendum was simply about ratifying that agreement. The Wilson Labour government ran the referendum on the basis of wanting to rubber stamp a recent change and if a No vote had occurred, reversing such a trajectory would have still been somewhat reasonably painlessly possible. Next comes the AV referendum. This was strange as you had a coalition government that was split down the middle on what result was desired. But ether way, we were constitutionally covered: if the Lib Dems got AV via the referendum, the Lib Dems would have had to vote for the boundary changes. It was all tied together as a piece (even though the Tories complained about it at the time, the Lib Dems actually gave the Tories an out in the whole Lords debacle that they refused to take). The Scottish 2014 referendum saw a nationalist party whose whole raison d’etre is Scottish independence, who had recently gained a majority and thus were in a place to enact their historic mission. Making Scotland an independent country off the back of that mandate was a step too far (even the SNP would agree on that), so we had a referendum. Lose (as happened) and the SNP has to accept that Scotland wants an SNP government but not be an independent country, at least for the time being; win and it ratifies the government’s position.

That brings us to the central problem with the EU referendum. It was done unwillingly by the then Tory prime minister, not as a way of ratifying something he wanted to do but for the exact opposite reason: he wanted the referendum to reject once and for all something he never wanted to do in the first place. As a result, when the vote went the opposite way to the one he desired, he departed as prime minister – and it has been left to those who have picked up the pieces in his wake to interpret the referendum result as best they can. The fact that it has come to this, where Brexiteers are trying to bypass the parliament they so desperately wanted to make supreme, is inevitable in retrospect.

Britain is a representative democracy. We should only have referenda as a way of the government of the time asking to do something it feels supersedes its mandate as a government and needs ratifying directly from the people. It should never be used, as has been done in the EU referendum, as an attempt to reject something the government of the day does not want to do. That way lies anarchy – a new government, trying to interpret the motives of the electorate, not based on a manifesto that has been voted on but rather what a simple yes or no question might mean for the future of the entire country, the old government having had no plan to implement the implications of the referendum vote since it never planned on the result going the way it did.

I think one of the questions of our age is: do you want to live in a representative democracy or a direct democracy? I have no doubt whatsoever which one I prefer.

So does the Brexit process pose an unavoidable constitutional crisis?

The answer is probably. There are ways in which Brexit avoids extreme constitutional difficulties, but they are becoming trickier to spot.

First there is the nations problem. This has been overplayed in the media, but is still a real issue. Putting aside Scottish independence concerns, it appears that it’s already nailed on that Northern Ireland is going to have to get some sort of a special deal in order to avoid real problems there. And when you give the Northern Irish a special deal, it begs the question of why the Scots and Welsh can’t get one as well. That brings you full circle to the English and why everyone else gets a special deal and they don’t.

But much more constitutionally troublesome is how the final deal of what emerges from Brexit comes about – and the role of both the House of Commons and the House of Lords In that process. If Number 10 ends up needing approval from parliament in order to trigger Article 50, the passage through the House of Commons is basic enough,  constitutionally speaking. It’s the Lords that raises the possibility of real issues. If the Lords wants to slow it down for a while or slow it down and make major changes to the government’s negotiating position, what will people say about an unelected house thwarting the will of the people? It’s a referendum result versus the whole concept of the Lords existence as a legislative body in that case. After all, one could argue that the way the Lords is set up is just perfect for something like Brexit – when the government of the day gets everyone into a pickle it can’t solve itself. The revising chamber to the fore, no?

Will we see Brexiteer Tory MPs, the very same ones who argued so vociferously to retain an unelected second chamber, now arguing the exact reverse? Perhaps abolition of the House of Lords even?

Even if the government can trigger article 50 by itself, it’s been anounced that parliament will get a vote on the final deal. What happens if parliament votes against it? Better still, what if the House of Lords rejects it? Does the government wait it out and use the Parliament Act? That takes a long time – what happens during this period? Would Britain be out of the EU with no deal at all?

Brexit poses a massive amount of constitutional problems that have barely begun to be talked about. They could all be got round possibly, but there needs to be a debate about it now, right now, one that goes beyond “you can’t stifle the will of the people, sir!” polemics.

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Radix is the radical centre think tank. We welcome all contributions which promote system change, challenge established notions and re-imagine our societies. The views expressed here are those of the individual contributor and not necessarily shared by Radix.


  1. Stephen Gwynne says

    I like the fact we have an evolving unwritten constitution and the eu referendum as an example of popular sovereignty was a part of that evolving constitution. In effect, with regards the referendum result, popular sovereignty is being enacted through the royal pregorative. In my opinion, the politically motivated case being brought against the government (knowing that a greater majority of MPs oppose Brexit) is an attempt to dismiss popular sovereignty and so constitutionally is a very important case.
    I dont see this as a crisis but an opportunity for popular sovereignty to win out against a group of people marauding as parliamentaries but in reality just want to usurp a referendum result they dislike.

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