Summary of Special Lecture “A Coach and Horses: Brexit and the British Constitution” Friday 14 February 2020 Faculty of Law, Thammasat University, Tha Phra Chan Campus
- Professor Andrew Harding, Faculty of Law, National University of Singapore
- Lecture Summary by Mr Kornranut Junwerasatien, 3rd year student, Faculty of Law, Thammasat University
- Edited by Assistant Professor Dr Korrasut Khopuangklang, Assistant Dean for Education, Faculty of Law, Thammasat University
The situation of Brexit could be considered as a very puzzling phenomenon. The United Kingdom (the UK) has been the only country that decided to leave the European Union (the EU) since the European Community was created in 1957 (which later on developed into the EU in 1993). However, 57 per cent of British voters believed that the UK should have remained in the EU.
‘A Coach and Horses’ which is the title of this lecture was inspired by the first short story that Professor Harding’s wrote in primary school. It was written at the time of the construction of the Berlin War which divided the East and the West of Berlin, Germany and Europe. In the story, an East German law professor and his daughter drove an old coach and horses through a prevailing gap in the wall which was still in the process of construction. The soldiers and the workers at the wall were astonished that the soldiers forgot to fire at the coach and horses. Thus, the professor and his daughter were able to escape from East Berlin to the freedom in West Berlin. In English, the expression of ‘to drive a coach and horses through something’ really means going through something without regard to any consequence. Therefore, the thesis of this lecture is that the British have driven a coach and horses through the British Constitution.
I. The Background of the British Constitution
The history of the British Constitution was started with the Magna Carta in 1215. It was the outcome of the royal prerogative power. The British Constitution could be considered as an unwritten constitution. In other words, it is not codified in any single document. Instead, it basically contains in statute laws, judicial presidents, and constitutional conventions including political conventions and political practices. The Magna Carta involves a number of principles. It enshrines with the rule of law, the idea of fair trials and other constitutional principles. It is not uncommon for a court in other countries such as Australia, Canada, and India to refer to Magna Carter in making decisions. It is one of the founding principles leading ultimately to parliamentary government, the rule of law, and the independent judiciary.
The important situation was the Glorious Revolution. During the seventeenth century, there was a Civil War between the King and the parliament. This resulted in the victory of the parliament and the execution of King Charles I. The monarchy was restored in 1660. Only a few years later, the King was forced to flee England and the pollical power rested entirely with the parliament in the absence of the King. Then, the parliament used its power to invite the King’s daughter and son-in-law to become joint monarch. It can be seen that the parliament was assumed as the absolute sovereign power to decide the potential king. In other words, the king was subjected to parliament. Therefore, it is a very important change. All of these constitutional principles were set in the Bill of Rights in 1689. One of the principles was no tax could be imposed without the permission of the parliament. Only the Common Law Court could decide cases. Additionally, freedom of speech was guaranteed. Therefore, the basis of the British constitution is parliamentary sovereignty and constitutional monarchy.
Since the seventeenth century, there have been various statutes that have constitutional importance. All statutes in Britain represent the principle of parliamentary sovereignty. Specifically, these statutes are equal and none of them has any special legal status. However, some of them are more equal than others and contain important constitutional principles. The recent ones are the EU Withdrawal Act 2018 and the EU Withdrawal Act 2020. These laws have the effect of preventing European laws from applying as part of the British legal system. However, the European laws may continue to apply even after January 2021, in reality. This could lead to the complex problem of legal alignment with the EU.
The principle of parliamentary sovereignty recognises the parliament as a supreme law with an unlimited capacity to make and to repeal laws. Therefore, the laws passed by the parliament cannot be considered as unconstitutional. Every law which is validly passed by the parliament is constitutionally valid, regardless of the contents of the laws. Moreover, the recent expression of parliament is always valid and binding. This situation seems to opposite to the principle of constitutional supremacy of the United States which the laws might be invalid after the constitutional review. In Britain, the Constitution is ‘what happens’. Nevertheless, in the United States, the Constitution is what ‘should’ happen.
In Britain, there is also the Constitutional conventions which are of central important uncodified practices or conducts. These conventions are not enforceable in the courts. Therefore, they are political conventions, not laws. One of the conventions is that the Queen has to act on the advice of the prime minister. For instance, the supreme court in 2019 Miller II case said that ‘political convention cannot be enforced by the court, but they can be recognised to exist by the court where necessary’. In fact, the court interpreted and enforced the convention by saying that when the prime minister acted unlawfully by giving advice to the Queen as to the prorogation of the parliament for the period of five weeks in August to September 2019. The court could not say that the prime minister acted unconstitutionally. Instead, the court said that the executive act of giving advice to the Queen was unlawful. Therefore, the prorogation was unlawful.
II. The Route to Brexit
The UK joint the European Community in 1973. There was the referendum and almost two-thirds of the British nationals voted in favour of joining the European Community. The Conservative Party which was in the office later was deeply split of the membership of European Union, in spite of the fact that the conservative government contributed strongly to the creation of the European Single Market in 1984 and the uniting of Eastern and Western Europe. In the general election of 2010, only one per cent of the voters thought that Europe was the major issue. Then in 2015, it became an issue because the government has made it an issue. In 2015, the election campaign of the Conservative Party (David Cameron) promised the referendum on the EU membership. Therefore, it can be said that Brexit is an issue that was manufactured by politicians. It was not something that the British people was interested in. Consequently, the Referendum Act was passed by the parliament and the result was deeply shocked that the majority voted for leaving the EU.
In the UK, it becomes habitual to have a referendum on a constitutional question such as proportional representation, Scottish independent and Wales revolution. For the Brexit Remainers, the referendum in 2016 was supposed to be advisory, not legally binding. There was a problem due to the contradiction between parliamentary sovereignty and popular sovereignty, as expressed in the referendum result. The fact is the majority of the parliament voted for remaining in the EU. However, the result is opposite in the referendum. After the outcome of the referendum, the Conservative party shifted its position to leave and the opposition parties are in favour of remain. Then, there was the ambiguity to respond to the result of the referendum.
There is the difficulty in conceptualising that this result is binding and constitutionally valid. Professor Harding viewed that the result of the referendum was a mandate to pursue the possibility of an agreement to leave the EU and there should then be an obligation to put an agreement to the people in another referendum which answer the different question (as to accept the deal or not). In fact, many leave supporting politicians were quite frank at the beginning that there would be two different referendums for both principle and the fact. However, nobody has thought this through at the time. Therefore, the British were left with the binding, but an ambiguous outcome. There was an emergence of a far-right party called the UK Independence Party (UKIP). After UKIP collapsed, there was the Brexit Party arguing for a strong hard Brexit with the fear that the Conservative Government would moderate the result of the referendum into a ‘Brexit in name only’. They have a lot of supports. Then, the Conservative was obliged to move to the right for meaningful Brexit. Another problem is that there was no clear Brexit strategy at the beginning. Theresa May did not have a solid majority in parliament for the hard Brexit. It was problematical that she did not have a clear direction.
There were two alternatives. The first way is the hard Brexit by leaving the EU without a deal, imposing strong immigration control and giving up the participation of the single market as well as the customs union. The second way is the softer Brexit with reciprocal rights to the UK and the EU citizens and some access to the single market. In can be said that the soft Brexit is a loss of sovereignty and not a Brexit at all. On the other hand, hard Brexit could also be damaging. Boris Johnson said that there is a Canadian solution with a minimum trade deal. He also said about an Australian deal. However, there was no deal between the EU and Australia. Currently, there is no clear outcome in sight.
In order to leave the EU, the government of the UK have to give notice under Article 50 on the Treaty of the EU of its intention to withdraw which lead to two years period for negotiating the departure. In March 2017 without any clear Brexit strategy, May notified the EU with the intention to withdraw which led to the negotiation after that. Then, she called for an election, but she did not win or lose it. Instead, there was no clear result and the government lose the vote in the parliament. She reached the deal with the EU and put in the parliament which was voted down by a large majority on three occasions. Eventually, May was forced out by the Brexiteers and Johnson became the prime minister. Initially, the Brexit had been postponed to October 2019. However, it was postponed again until January 2020. Johnson was successful to earn the majority to hold an election which calculated correctly that he won. This is problematical constitutionally because the 57 per cent of the voters wished to remain or to hold the second referendum on Brexit. Due to the electoral system that gave the majority to the parties supported by only 43 per cent of the voters. However, the Brexit is not over because there are a number of difficult problems, both in terms of economic and constitutional law.
III. The Constitutional Impacts of the Brexit
The conflict between parliamentary democracy and referendum. The question is: ‘Is referendum the right way to solve the difficult question?’. In the most country where there is a referendum, a bill is passed by the legislator first and it put for the referendum for the endorsement. Therefore, the voters would know what there are voting for or against. However, in this case of the UK, the situation is the opposite. Specifically, the coach was put before the horses.
More importantly, there is the question of the UK itself. The UK contains five territories which are the Republic of Ireland, England, Wales, Scotland and Northern Ireland. The question is about the survival of the UK. While England voted for Brexit, Scotland and Northern Ireland voted in favour for remaining with the EU. However, Scotland and Northern Ireland have to bound with the Brexit, even though the majority of their nationals votes for the different direction. There is no federation system in the UK. This could be considered as another constitutional problem.
Wales, Scotland and Northern Ireland have the benefit of devolved government. They have different powers, terms and relationship with the Westminster Parliament. The government of England promised to include the devolved government in the negotiation process. Essentially, they did not fulfil the promise. Thus, the governments of Wales, Scotland and Northern Ireland were excluded from the process. There was no direct representation from these three governments in negotiation with the EU. The government of England took all power in the process.
With regards to Northern Ireland, it is more problematic. In 1997, there was the Good Friday Agreement by Prime Minister Tony Blair. This agreement brought peace to Northern Ireland ever since 1997. It has been so effective to prevent violent conflicts. However, it is under threat under this Brexit. The Republic of Ireland is part of the EU and still remain. If Northern Ireland with the UK leaves the EU, there will be a border between the Republic of Ireland and Northern Ireland. There has not been a border there since 1997. If there is a border there, it will be a cause of violence. The Irish backstop became a matter of negotiation. In order to avoid violence, Northern Ireland should remain in the single market and the customs union which meant that no border necessary. The parliament of England found this unacceptable because Northern Ireland should leave with the UK. Currently, the agreement now by Johnson also create a border but not between Republic of Ireland and Northern Ireland. Instead, the border will be between Northern Ireland and the rest of the UK. This is very problematical. The border should not be there because Northern Ireland and the UK are the Union. There is a lot of uncertainty of Northern Ireland, due to Brexit.
There is the Civil Convention. When there is the possibility of legislation in the Westminster Parliament contradicts with the power of the devolved government, there has to be a consultation in advance. There will not be a constitutional conflict. This convention has been effective. With regard to Scotland, the Civil Convention was enacted in the Scotland Act 2016. This Convention went from political convention to statute law.
In the case Miller I in 2017, the supreme court has to confront two questions. The first question is: In invoking Article 50 of Treaty of the European Union (TEU), could the government just notify the EU? or Did they have to get the permission from the parliament to do it? This is the question regarding prerogative power that the government have over international relations. The supreme court decided that there is the need to have permission from the parliament because the rights of citizens are affected by the act of the government. The second question is: In invoking Article 50 of TEU, is it necessary to get permission from the devolved legislators. The supreme court decided that there is no need to obtain permission from the devolved legislators. The British parliament is sovereign. However, the Civil Convention is a part of the Scottish Act and the Wales Act. Therefore, it is necessary to consult with those legislators before taking legislators actions in the British parliament. Professor Harding found that this is a persuasive argument. Although the constitutional convention is not legally binding, this convention is contained in an act and it should be legal. This is problematic because the Scottish government voted against Brexit and Article 50 of TEU. Therefore, there is a constitutional contradiction. It can be said that The Miller I case showed the victory of parliamentary sovereignty because the British government is accountable to parliament in invoking Article 50 of the TEU. On the other hand, it worked against the independent power of devolved legislators.
The Miller II case in 2019 was related to the fact that the Prime Minister advice the Queen to suspend the parliament for the period of five weeks to draw up the government legislative programme. The opposition said that this would prevent parliamentary scrutiny of Brexit plans. The supreme court decided that the Prime minister offered unlawful advice to the Queen. In history, if the parliament told lie to the Queen like this, they would have to resign. In this case, Johnson was not forced to resign, the Convention was broken, in the view of Professor Harding.
According to Professor Harding, the impacts of the Brexit is not over, as far as the constitution is concerned. It is quite conceivable that Scotland becomes independent. The Federal structure requires more than a conventional constitution. In other words, a federation is an international treaty. The question now is whether the UK should have a written constitution. It would take a long time for the UK to reform its constitutional system. However, more constitution in the UK should be written down. It is not necessary to be in a single document. At least, it is necessary to codify the concept of ministerial responsibility. It can be done because, in the Commonwealth constitution, the conventions regarding this issue enshrine in the constitutional document itself in countries such as Canada, Malaysia, Australia and New Zealand.