Brexit and the Unsettled Constitution of the United Kingdom

The UK’s 2016 Referendum on continued EU membership may well become a defining moment in the constitutional law and politics of the UK. Undoubtedly, untangling and re-establishing a relationship with the EU and the wider world will have legal, economic and social effects within the UK, as well as in remaining member states. But Brexit is as much about the British Constitution as it is about economics and relations with continental Europe. Brexit challenges a constitution that is already ‘unsettled’ (Walker) and provokes a range of constitutional problems, which include: confusion over constitutional requirements for commencing the withdrawal process; the respective roles of the UK Parliament and Government in Britain’s EU withdrawal; the position of the devolved nations and the future of the territorial state; and the domestic legislative changes necessary The paper will locate Brexit in the broader context of historically significant British acts of union or disunion.

Brexit, EU international agreements and the UK

This section examines the external relations implications of the UK’s withdrawal from the EU. Understanding the impact of Brexit on the EU’s international agreements and the UK’s legal status in relation to these agreements, once it leaves the EU, is of particular salience as any final arrangement made with the UK will act as a precedent and will thus have significant implications for any future Member State withdrawal from the EU. From the EU’s perspective, the main concern is the impact of Brexit on the EU’s relationship with third countries that are parties to its international agreements. From the UK’s perspective, the UK is bound by all of them even though it is not a party to all of the EU’s international agreements, as they form an integral part of EU law. The paper intends to examine what the possible scenarios might be in a post-Brexit scenario.

Brexit and the shifting future of the subjects and objects of EU law

The paper purports to observe the consequences of Brexit developing the recent book project framework, 'Framing the subjects and objects of EU law', looking beyond the traditional understanding of legal subjectivity. The paper observes the Member State as – on the one hand – the par excellence subject of EU law, and – on the other hand – as the object of EU law, the target of its regulation. Given the expansion of the circle of objects of EU law thanks to its global reach, what is the difference between an object-MS and object-Third Country? What is the correlation between the subjectivity of an MS and its capability to enter into commitments on the international stage? We examine the transitional arrangements for Brexit and the limbo status for the UK, EU MS, IOs and envisaged therein.  What is legal subjectivity going forward? What are the remnants of political subjectivity of nations in the globalised world?

United We Fall: Taking back control in an interdependent world

The paper traces illiberal nationalist challenges to a liberal international order to a (neo)liberal legalism that subjects us to the imperium of managerialist states, international law/institutions and asymmetrical markets that wield privileged, discretionary and unilateral power over still nationally-configured political communities. In subjecting us to the forces of law and reason, they trample over particularistic concerns, precious to the identities of those without mastery of the tools/vernaculars of this empire. Revealing how power shifts beyond constitutional orders that connect to self-governing political communities–a managerialist embedding of markets in the deemed interests of society–shows how to re-establish connections: managing the factual interdependence of legally independent states through multi-level regimes whose institutions are both legal and political, without aspiring to subsume them into hierarchically-configured (state-like) supranational orders. 

Brexit and Misconceptions of Governance

Brexit has been understood as a triumph of populism and nationalism, in conflict with the ethos of the Union. But Brexit should not be understood as a mere aberration, but instead indicative of exhausted thinking about EU and (transnational) law in general. From the perspective of “pure” legal theory, Brexit is self-referential. The discussion thereof reduces an order to its character and the potential benefits of the internal market. However, governance, and indeed the legal structure should be understood as chaotic and hierarchical. A retreat to sovereign power, like desire for a full participation in a system, can prove to be an illusion. The theory of integration is misleading in the context of a country joining or leaving a legal system like the EU. The discussion about inclusion, participation and control risks portraying a distorted picture of the benefits and perils of joining or leaving the Union that ignores the hierarchical structure of society and the power relationships.