Brexit and the British constitution

“Through a failure of statecraft on a scale unmatched since Lord North lost the American colonies, David Cameron has managed to convert a problem of party management into a constitutional crisis,” London School of Economics Professor of Public Law Martin Loughlin wrote in the London Review of Books shortly after the 2016 referendum in which Britain voted to leave the European Union.

Law School

Eighteen months later, with the Brexit process in full swing, Loughlin was at Victoria University of Wellington to deliver the Faculty of Law’s annual end-of-year Robin Cooke Lecture in honour of Victoria alumnus Lord Cooke of Thorndon and his contribution to New Zealand legal history.

In ‘The British Constitution: Thoughts on the Cause of the Present Discontents’, Loughlin unpicked the crisis he wrote about in the LRB, telling a capacity audience that included New Zealand constitutional reformist Sir Geoffrey Palmer: “The [British] Government today has found itself incapable of maintaining a stable constitution. It is caught between a constitutional tradition that is effectively dead and a modern constitutional form that remains powerless to be born.”

The British constitution has been a growing source of discontent since the mid-twentieth century, said Loughlin.

“The anxieties begin to be expressed in the immediate post-Second World War period. In his Thoughts on the Constitution written in 1947, the Conservative MP Leo Amery explained that the arteries of the constitutional system were already suffering from acute high blood pressure at a time when the brain and the body which they serve are being summoned to ever greater exertions. They may have proved their adaptability in the past but he doubted they could for much longer sustain the intense strains of the near future. And he felt that the future prospect was either a complete breakdown ending in violent revolutionary change or progressive paralysis.”

Despite the widely held view that “the traditional arrangements have reached the end of their useful life”, Britain has lacked the necessary conditions for a “constitutive moment”, said Loughlin.

“The basic problem is that it’s only at critical moments of a nation’s development that the conditions are in place for engaging in some fundamental reconstruction of its constitutional arrangements. Those moments might be triggered by independence from an imperial power, or the utter collapse of authority of a system of government as a consequence of collapse or defeat in war, or revolutionary overthrow of the old regime.”

He suggested that “lacking the conditions for revolutionary change, we have avoided progressive paralysis by pursuing an incremental and largely surreptitious project of constitutional modernisation. The project, which has gathered pace over the last four decades, has been driven by Britain’s participation in the venture of continuing European integration”.

That participation “has empowered our judiciary to review legislation, to ensure compatibility with European Union law, to adopt teleological methods of reasoning that are quite contrary to the traditional methods of the common law, to make a categorical distinction between public law and private law.

“It has led us to adopt what is in effect a bill of rights without the need for extensive public deliberation of what that might contain, and it has led to the replacement of the judicial committee of the House of Lords, of which Lord Cooke was such a distinguished member, with an independently constituted Supreme Court.

“But that is not all. The existence of a common European governing framework has also helped the United Kingdom to set in place a dynamic scheme for devolving governmental powers to its several constituent nations. And crucially it provides the supporting structure for the unique cross-border arrangements that have brought about a peace settlement in Northern Ireland.”

European integration through incremental change “enabled the British to hold on to the shibboleth of parliamentary sovereignty while reconfiguring its governing arrangements and reordering its constitutional fundamentals to bring it into closer alignment with those of the modern democratic state. Participation in the project of European integration became the method of rescuing the British constitution from institutional sclerosis”.

One of the many fault lines exposed by Brexit is that between constitutional traditionalists and modernisers, said Loughlin.

But traditionalists “taking back control” are wrong to think Brexit will restore parliamentary sovereignty, he said.

Sovereignty “will be reasserted but it will only be as an empty shell”.

Parliament’s right to do things derives from power, not law, said Loughlin, and its power “has been qualified by recent social, economic and political developments”.

Its authority has been eroded by declining electoral turnout, party membership and trust in MPs, and by the delegation of its secondary law-making powers to the executive, he said.

Other factors include “a growing disaggregation in the cultural and political notion of the British people, manifested in the demands for devolution to the non-English regions” and “a dissipation of authority away from central political institutions” (e.g. the growing impact of post-parliamentary politics).

“Parliament can no longer claim to present itself as the mirror of the nation,” said Loughlin.

“Those who think that the main threat to parliamentary sovereignty comes from the principle of the supremacy of European Union law and that after exit the status of the doctrine will be restored are mistaken.”