Brexit and the UK Constitution

On Thursday 21st July, Brick Court Chambers hosted a panel discussion to consider the implications of Brexit for the UK constitution. Chaired by Clive Coleman, key issues under consideration included whether the referendum result was legally binding, the operation of Article 50 and the implications of Brexit for the UK and its devolved parliaments.

Lord Falconer of Thornton opened by observing that although the referendum result was only advisory as a matter of law, it was an effective instruction to the Government to start negotiating a British withdrawal from the EU. When the terms on which the UK would leave the EU become clear, the Government must decide whether further democratic endorsement of the UK’s position is required. The similarity between the terms obtained and the key aspects of the referendum debate (principally access to the single market, controlling immigration and ending EU budget contributions) should inform the Government’s decision in this regard.

Dominic Grieve QC MP commented that the referendum result is a manifestation of a very severe breakdown in trust between the electorate and the political institutions. It will be a huge domestic challenge for the new Prime Minister to heal this division. On the European level, Mr Grieve QC suggested that the smooth running of Article 50 envisaged by its drafters is unlikely to happen in practice. He did, however, consider that the EU would not want the UK to leave in chaotic conditions on the expiry of the specified two year negotiating period.

Professor Derrick Wyatt QC discussed the UK’s withdrawal negotiations with the EU. Suggesting that accountability and transparency must be ensured, he proposed oversight by both the House of Commons and House of Lords. He also stressed that wide consultation is necessary to shape the UK’s position in the negotiations. Such steps would help to gain important cross-party support for the position reached.

Professor Jo Shaw raised some of the issues faced by Scotland and Northern Ireland on the UK’s exit from the EU. In respect of Northern Ireland, she suggested that the real issue may not be secession but rather the reunification of Ireland. Northern Ireland trades a great deal with the Republic of Ireland, and also has concerns about cross-border policing and the European Arrest Warrant. Turning to Scotland, Professor Shaw noted the discussion of a ‘reverse Greenland’ situation, in which the UK would remain an EU Member State but the territorial scope of the EU treaties would be restricted. She also suggested that the situation in Cyprus could prove instructive.

Finally, Richard Gordon QC considered what the UK’s next steps might and should be. Separating prediction from principle, he suggested that political and constitutional considerations will trump legal arguments. Further, the ultimate political need for the referendum result to be implemented will take precedence over any strict constitutional requirement for Parliament to trigger the Article 50 procedure. In his view, Parliament cannot guarantee what politics must deliver.

A lively Q&A session followed the presentations. Topics raised included the revocability of an Article 50 notice, the extent to which the Sewell Convention and Good Friday Agreement are obstacles to Brexit, the practical problems faced by the UK in negotiating a new relationship with Europe and the extent to which the UK can rely on EU trade agreements that it has independently ratified.

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