Drawing on first hand participation in the legal and parliamentary constitutional developments caused by the Brexit crisis in the United Kingdom, this talk will explore what the experience tells us about certain fundamental concepts in constitutional theory. In particular, it will explore what light the experience sheds on the ideas of popular constitutionalism and constituent power, on the nature of legal interpretation, on the role of courts, legislatures and civil society in a constitutional crisis, and reflections on the distinction between so-called legal and political constitutionalism. It will also reflect on whether the existence of a codified constitution would have made much of a difference.
This Article argues that the forces affecting Brexit are rooted in nineteenth century Britain. It deconstructs the familiar narrative that casts the US as the archetype of a constitutional model, with a formal supreme Constitution, judicial review, and popular sovereignty. In that narrative, the UK is cast as the antithesis. This Article reveals that, even as this narrative was becoming orthodoxy during the nineteenth century, the UK was already operating under a model similar to the US, demonstrating a continued commitment to popular, rather than parliamentary, sovereignty. The challenges encountering popular sovereignty have remained the same over the past two centuries though gaining new dimensions: enfranchisement, protectionism, territorial divisions, and allocation of legislative power. The common Anglo-American model sheds new light on the meaning of the government’s mandate at elections, the rise of party power, and the conditions that would legitimize packing the courts.
The Supreme Court’s Miller II decision, quashing Boris Johnson’s prorogation of Parliament, was a muscular judicial response to a piece of ‘constitutional hardball’ from the Executive, an example of what Alison Young terms ‘constitutional counter-balancing’: action by one arm of government to prevent another exceeding constitutional limits on its powers. The prorogation in turn was a failed attempt to counter what the Executive saw as Parliament’s ‘unconstitutional’ seizure of the parliamentary timetable, which enabled it to legislatively direct the Government’s Brexit negotiations with the EU, forcing it to seek extensions to the Article 50 deadline. Brexit revealed the ancient royal bones of the constitution – the Crown’s reserve prerogative powers – poking through its democratic veneer. Miller II was a vigorous reassertion of the political-democratic constitution as against ‘New Crown Fundamentalism’ – the aggressive use of Crown power to control Brexit and side-line Parliament.