Brexit Means Britain Needs a Constitution
British citizens will no longer be covered by EU law, and courts won’t have the power to protect minorities from the will of the parliamentary majority. Only a codified constitution can ensure basic rights.
It is commonly said that the United Kingdom has no constitution. Indeed, some have joked that the British constitution is not worth the paper it isn’t printed on. But so long as Britain was a member of the European Union, which it joined when it was the European Community in 1973, it did have a constitution—the constitution of the European Union. And Britain was bound by EU law.
If U.K. Prime Minister Boris Johnson succeeds in taking Britain out of the EU on Oct. 31, that will change overnight, and the country will once again find itself without a codified constitution. But if Brexit is really about taking back control, then would Britain not be better off with its own codified constitution?
The EU is what’s known as a protected constitutional system. Membership in the EU effectively put Britain under a codified constitution constraining both government and Parliament. That constitution provided for the judicial review of primary legislation, since the European Court of Justice, as well as national courts, were required to disapply or annul legislation that was incompatible with EU law. In 2009, the European Court of Justice and national courts were also required to disapply legislation contravening the European Charter of Fundamental Rights, after that charter—somewhat analogous to the U.S. Bill of Rights—came into force.
As a member of the EU, Britain has been bound by European law. British judges, therefore, were also under a duty to disapply British legislation that conflicted with it. In the landmark 1991 case R v. Secretary of State, ex p Factortame Ltd, the Law Lords for the first time in British history disapplied part of a British Parliament statute, the Merchant Shipping Act of 1988, on the grounds that it was in conflict with European law.
In a more recent landmark case, Benkharbouche v. Secretary of State for Foreign Affairs, the Supreme Court in 2017 for the first time in British history disapplied part of a Westminster statute, the 1978 State Immunity Act, because it violated human rights as laid out in the EU Charter of Fundamental Rights. The protected constitutional system of the EU is quite unlike Britain’s pre-1973 system of government and quite unlike the system to which Britain will revert after Brexit.
The British system is an unprotected one. Its fundamental and only constitutional principle is the sovereignty of Parliament, which provides that Parliament can enact any law that it wishes and that no court can declare an Act of Parliament invalid. Indeed, the pre-1973 British constitution could have been summarized as: Whatever the queen in Parliament enacts is law.
The principle of parliamentary sovereignty means, of course, that rights depend entirely on Parliament rather than the courts. That will once again be the case after Brexit, since the EU Charter of Fundamental Rights is not being incorporated into Britain’s domestic law.
It is true that, since 2000, Britain has incorporated into its domestic law through the Human Rights Act most of the European Convention on Human Rights, a treaty of the member states of the Council of Europe, an entirely separate body from the European Union. But, crucially, Britain chose not to incorporate Article 13 providing for a legal remedy for a breach of rights.
Consequently, all that the courts could do is issue a declaration of incompatibility if legislation in Parliament transgresses human rights. Such a declaration has no legal effect, and it would then be up to Parliament to alter the relevant statute. In effect, all that the Human Rights Act allows the courts to say to a successful litigant is, “Your rights have been infringed, but there is nothing further that we can do about it,” or, perhaps “Your rights would have been infringed if you had any, but under the British constitution, your rights are dependent upon a sovereign Parliament, and we can do nothing further.” After Brexit, rights in Britain will no longer be entrenched as they are in most countries with codified constitutions.
Such countries are familiar with the process of entrenchment by which fundamental change is made more difficult through the requirement of special majorities—or, in federal systems, through the requirement that not only must the federal legislature endorse legislation, but state or provincial legislatures must approve it, too. Advanced democracies are far less familiar with the abandonment of constraints on a legislature and exiting a major international human rights regime.
Many people are therefore beginning to ask: Should Britain have a constitution? But that is the wrong question. Britain is just one of three democracies that does not have a constitution. The other two are New Zealand and Israel. Israel, however, is working toward a constitution through a series of Basic Laws. In 1992, its Basic Law: Human Dignity and Liberty provided legal protection against violation of life and property. Any law that contravened the rights enumerated in it would be unconstitutional and could be declared invalid by the courts.
New Zealand, the only other democracy with a sovereign Parliament, is hardly comparable to Britain, being a small country of just under 5 million people—about half the population of Greater London.
In post-Brexit Britain, rights that in most other democracies are protected by judges will once again be protected almost entirely by Parliament. It is thus worth asking whether British politicians are so uniquely sensitive to the protection of human rights as compared with legislators in other democracies that they should be entrusted with this important task. There is no evidence that this unique sensitivity exists. And it is a fallacy—and a dangerous one—to believe that in a democracy, the majority, having won power in a free election, has not only the right to rule but also the right to rule in any way that it likes, even if that means overriding the rights of minorities.
In a book published in 2009, The New British Constitution, I argued that Britain had begun the process of creating a codified constitution. It was pursuing such reforms as devolution: the granting of legislative power to newly devolved bodies in the non-English parts of the United Kingdom—Scotland, Northern Ireland, and Wales—and the Human Rights Act, which made the European Convention of Human Rights part of British law. This all moved it toward a codified constitution, but without any real consensus on its final shape, and without any real protection against the tyranny of the majority.
Brexit could reverse this movement toward a codified constitution, returning Britain to its former unprotected state. But it raises the question of how long Britain can remain satisfied with such a constitution or whether Britain too should join most of the world’s other democracies by adopting a constitution that is rigid and codified.
Brexit, by revealing the nakedness of Britain’s unprotected constitution, may paradoxically give a powerful impetus to enact a protected one. The attitude that Westminster knows best and that majorities can be entrusted with protecting the rights of minorities will come to seem increasingly threadbare.
Nations tend to establish written constitutions after a major rupture such as decolonization, as was the case for the United States and India, or wartime defeat, as was the case for European Axis powers after World War II. The main reason why Britain lacks a codified constitution is that it has never faced such a moment of reckoning. But Brexit will mark such a rupture and new beginning—ending the era during which Britain was bound by EU laws. Brexit is Britain’s constitutional moment—and the country should seize it.