Brexit Needs a Constitutional Convention

By Matthew Eric Bassett

Politicians are adept to managing short-term crises. Throw some media attention on a city’s failing water supply or a town destroyed by a flood and political leaders will respond with a photo op, some emergency funding, and maybe a new piece of legislation. Trends that last a couple of years, such as online distribution of music and films, might result in a new piece of legislation, like the Digital Millennium Copyright Act 1 in the US. This is a good thing; life changes quickly, new technologies come and go, natural disasters happen, and laws and policies need to keep up. Legislatures and political structures are set up exactly so that there is a methodology for dealing with life’s changes. And it is rare that something happens that could alter how these structures need to work. A violent revolution, national secession, or otherwise the creation of a new nation would demand that such structures be invented or re-invented to meet the needs of future generations. It is even more rare that such events happen without widespread violence. Brexit is one such “even more rare” event and it’s incredibly exciting. The proper answer to such an event is a Constitutional Convention.

The simplicity of the Leave/Remain referendum bellied the complexity of the resulting changes to constitutional law. One example made famous in the media was the Supreme Court case considering whether the UK Government could even enact Brexit (id est, trigger Article 50 to withdrawal from the European Union) without the consent of Parliament 2. But numerous other examples remain: laws within the UK about competition, labour & employment, food safety, and many others 3. These may seem like nothing more than a large volume of routine legal changes. But Brexit does not ask just for new employment and food safety regulations. It changes who has the power to make such decisions and how. When the UK entered the EEC (as it was called at the time) in 1972, Parliament granted the European Commission authority on these matters. European law became the de facto prevailing law of the UK, and the European Court of Justice held jurisdiction in any matters where the EU has competency 4. EU directives - which then affected UK Law - were the result of the deliberations of either a directly elected body or a body appointed by directly elected heads of government (the EU Parliament or European Commission, respectively) 5. But Brexit requires this decision-making process to be changed, and, because of tight legal deadlines, there is little time to debate what a new structure would look like. This was evident even in the debate around the first “constitutional act” related to Brexit: The European Union (Withdrawal) Act 2018. The Act caused much controversy for giving government ministers new powers to implement regulation (secondary legislation) and other orders without any democratic deliberation 6. Such constitutional debates – about who has what powers and how they may use them – are manifold in Brexit. And that is before considering issues about national borders or who is allowed to live in the UK.

Yet the United Kingdom has a history of playing fast and loose with its constitution. It prides itself on having an uncodified, unwritten “constitution” based on convention, tradition, precedent, important legislation, and a handful of authoritative sources. The UK itself is a patchwork of different countries, so many think it is fitting that its “constitution” is a patchwork of different ideas, leaving political leaders free to improvise and manoeuvre as the situation demands. Witness the changes to the House of Lords throughout the 20th century. In 1911 Parliament passed the Parliament Act - a change to constitutional law - to limit the powers of the unelected House after a series of major political disagreements. The British political system was able to execute such an amendment via Parliament in response to several chronic conditions: the growth of a Liberal-led welfare system, unrest in Ireland, multiple general elections, et cetera 7. But Brexit is an acute change that demands answers in a matter of months, not years, and these answers must be reached in a democratic, deliberative process. A Constitutional Convention meets those requirements, and it need not challenge the tradition of an uncodified constitution. It could be limited in scope to Brexit: the withdrawal deal and future trade relations. Thus it would not codify the UK constitution. It would be another manoeuvre to fit the political demands of the situation.

Brexit and its referendum have divided the voting population like nothing before in recent history. The democratic legitimacy of the UK depends on it being implemented as the majority of voters in the referendum demanded. At the same time, the country needs to unify and heal its divisions so it can face the challenges ahead, not the least of which include trade negotiations with two more large economies (the US and China) and an aggressive Russia. Therefore, Brexit needs to be delivered by an institution that can command confidence across a vast majority of British citizens. Since Brexit divides both parties 8, it needs to be discussed independently of party politics. A Constitutional Convention should consist of a new, parallel assembly to the House of Commons. This would free Parliament (and subsequent general elections) to consider day-to-day issues, like the funding of the NHS, without distractions from Brexit 9.

This Brexit Assembly should be formed from representatives from each parliamentary constituency. It should not be allowed to dissolve (by itself or by a further act of Parliament) while the UK remains a member of the European Union, nor should it be allowed to pass any proposals without the consent of a two-thirds super majority of its members and the consent of a majority of its members from each constituent country. These requirements are to ensure that the original referendum has democratic legitimacy and that the specifics of such a sweeping change to constitutional law have the confidence of the people.

The Brexit Assembly should have the power to form its own committees and appoint its own officers and envoys to the European Union, though it could not pass any legislation or appoint any government ministers. Its purpose would be to negotiate with the EU on the terms of the UK’s withdrawal and on the future relationship between the two. Parliament should agree to accept whatever the Brexit Assembly would pass.

The most contentious part of the government’s proposed Brexit plan 10 is the border “backstop” with Northern Ireland. It was cited as the primary reason Parliament rejected the Government's plan for Brexit 11. The idea is that neither the UK, nor the Republic of Ireland, nor the EU want to see international border controls on the island of Ireland. The Government's draft plan only covers the terms of the UK’s withdrawal from the EU; the future trading relationship between the two entities would be covered by a more comprehensive trade agreement. The two sides would have a transition period, lasting potentially until December 2022, during which they would hash out an agreement. If they needed more time, the “backstop” is a plan to ensure that an international border would never appear by mandating that Northern Ireland follow the same trade and regulatory rules as the Republic of Ireland. Northern Ireland and the Republic would not have an international border, but Northern Ireland would have border controls between it and the rest of the UK. It is obvious why this would be contentious.

One can debate decision-making mechanisms all day, but the problem of what to do with the border remains. It is actually an example of why short-term politics cannot be allowed to interfere with Brexit. The issues around the border can breed envy among constituent nations who did not have a majority vote for Brexit in the first place. The government of Scotland wants a Brexit that allows it to remain a member of the EU single market and the EU customs union 12, which would describe Northern Ireland's situation if the “backstop” were ever used. No decision about the border could command confidence without the support of all entities involved, including Northern Ireland and Scotland. Whatever plan could be conceived to deal with the Northern Irish border question would require the legitimacy provided by a described Brexit Assembly: a super majority of the UK and a majority of each country.

It is obvious that such a Constitutional Convention could not happen without delaying Brexit. But Parliament has the power to do just that. It also has the power to pass legislation creating such a Brexit Assembly. Maybe concerned citizens should petition parliament to do just that.