10.3 The process of Brexit and its constitutional implications
5 min read•august 16, 2024
Brexit, the UK's withdrawal from the European Union, reshaped the nation's constitutional landscape. The process, triggered by a 2016 , challenged traditional power balances between Parliament, government, and courts.
The Brexit journey involved complex negotiations, legal battles, and legislative changes. It tested the UK's unwritten constitution, raising questions about sovereignty, , and the role of referendums in a parliamentary democracy.
Brexit Timeline and Key Events
Referendum and Article 50 Activation
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- Brexit referendum held on June 23, 2016 resulted in 51.9% vote to leave European Union
- Set in motion complex withdrawal process
- Sparked debates on constitutional implications of referendums in UK's parliamentary democracy
- Prime Minister invoked on March 29, 2017
- Officially began two-year negotiation period for UK's withdrawal
- Required parliamentary approval following ruling
Negotiations and Extensions
- UK and EU engaged in extensive negotiations from 2017 to 2019
- Focused on key issues (citizens' rights, financial settlement, Irish border question)
- Challenged traditional balance of power between executive and legislature
- Multiple extensions granted to Article 50 process
- Final Brexit date set for January 31, 2020
- Followed by until December 31, 2020
- EU-UK Trade and Cooperation Agreement signed on December 30, 2020
- Established framework for future UK-EU relations
- Covered areas like trade, security, and governance
Post-Brexit Developments
- Ongoing negotiations on specific issues
- (addressing unique challenges of Irish border)
- Regulatory alignment (ensuring smooth trade while maintaining UK sovereignty)
- Implementation of new domestic regulatory bodies and frameworks
- Replaced EU institutions and mechanisms ()
- Continued evolution of UK-EU relationship
- Adjustments to trade arrangements (customs procedures, regulatory checks)
- Cooperation in areas like security and research ()
Constitutional Challenges of Brexit
Referendum and Parliamentary Sovereignty
- Brexit referendum raised questions about constitutional status of referendums
- Binding nature on Parliament debated
- Tension between direct democracy and
- Miller case (R (Miller) v Secretary of State for Exiting the European Union)
- Established parliamentary approval required to trigger Article 50
- Reinforced principle of parliamentary sovereignty
- Led to passage of European Union (Notification of Withdrawal) Act 2017
Executive Power and Judicial Review
- Prorogation crisis of 2019 led to landmark Supreme Court ruling
- R (Miller) v The Prime Minister case
- Reaffirmed limits on executive power
- Emphasized role of courts in upholding constitutional principles
- Brexit negotiations challenged balance of power between executive and legislature
- Parliament asserted greater control through mechanisms like
- Unprecedented events (government losing control of parliamentary agenda)
Devolution and Territorial Constitution
- Brexit strained devolution settlement
- Repatriation of powers from EU to UK raised questions of allocation
- Consent of devolved administrations became contentious issue
- and status of Northern Ireland posed unique challenges
- Required innovative solutions (Northern Ireland Protocol)
- Balanced maintaining peace process with implementing Brexit
- Tensions with devolved administrations over power distribution
- Initial centralization of returning EU powers before redistribution
- Led to passage of UK Internal Market Act 2020
Impact of EU Withdrawal Act on UK Constitution
Legal Framework and Hierarchy
- repealed European Communities Act 1972
- Ended supremacy of EU law in UK
- Incorporated EU law into domestic law as ""
- Created new category of domestic law: "retained EU law"
- Can be modified or repealed by UK Parliament
- Altered sources and hierarchy of UK law
- Established new relationship between UK courts and EU case law
- Allowed UK courts to depart from retained EU case law under certain circumstances
- Supreme Court and High Court of Justiciary given power to depart from retained EU case law
Executive Powers and Parliamentary Scrutiny
- Act granted extensive powers to ministers to amend retained EU law
- Use of secondary legislation (Statutory Instruments)
- Raised concerns about potential executive overreach
- Introduced new scrutiny procedures for secondary legislation
- Enhanced scrutiny procedure for certain types of regulations
- Created new Parliamentary committees (European Statutory Instruments Committee)
- Balancing need for legal continuity with democratic accountability
- Time-limited powers to make corrections to retained EU law
- Sunset clause for certain delegated powers
Regulatory Frameworks and Institutions
- Implementation necessitated creation of new domestic regulatory bodies
- Replaced EU institutions and mechanisms
- Examples: UK REACH for chemicals regulation, UK Emissions Trading Scheme
- Established new constitutional relationship with EU regulatory bodies
- Ended direct jurisdiction of EU agencies in UK
- Created frameworks for cooperation and information sharing
- Adaptation of UK legal system to post-Brexit regulatory landscape
- Development of new case law interpreting retained EU law
- Gradual divergence from EU standards in some areas (financial services, data protection)
Parliament, Government, and Courts in Brexit
Parliamentary Role and Scrutiny
- Parliament played crucial role in scrutinizing and approving key Brexit legislation
- European Union (Withdrawal) Act 2018
- EU (Future Relationship) Act 2020
- Asserted authority through various mechanisms
- "Meaningful votes" on Withdrawal Agreement
- Amendments to government motions
- Control of parliamentary agenda (Standing Order No. 24 debates)
- Established new committees and procedures for Brexit scrutiny
- Exiting the European Union Select Committee
- European Statutory Instruments Committee
Government Strategy and Negotiations
- Successive Prime Ministers responsible for negotiating with EU
- Setting overall Brexit strategy
- Faced challenges in securing parliamentary support
- Government's role in implementing Brexit legislation
- Drafting and introducing key bills
- Using delegated powers to make necessary legal changes
- Balancing international negotiations with domestic political pressures
- Managing party divisions over Brexit approach
- Responding to parliamentary scrutiny and votes
Judicial Intervention and Constitutional Interpretation
- UK Supreme Court made landmark rulings on Brexit-related constitutional issues
- Miller case on Article 50 (parliamentary approval required)
- Prorogation case (unlawful suspension of Parliament in 2019)
- Lower courts also played significant role
- Wightman case (revocability of Article 50 notification)
- Challenges to use of prerogative powers in Brexit process
- Courts' role in interpreting and applying retained EU law
- Developing new principles for statutory interpretation
- Balancing continuity with ability to diverge from EU jurisprudence
Key Terms to Review (25)
Article 50: Article 50 of the Treaty on European Union outlines the process for a member state to withdraw from the European Union. It establishes a framework for negotiations regarding the terms of departure and emphasizes the importance of agreements between the departing country and the EU, highlighting its significance in understanding the UK's relationship with the EU and the subsequent process of Brexit.
Benn Act: The Benn Act, formally known as the European Union (Withdrawal) (No. 2) Act 2019, is a piece of legislation that requires the UK government to seek an extension to the Brexit deadline if no withdrawal agreement has been reached by a specified date. This act emerged in the context of significant political turmoil over Brexit, aimed at preventing a no-deal exit from the European Union, thus impacting the constitutional framework and governmental processes surrounding Brexit.
Boris Johnson: Boris Johnson is a British politician who served as Prime Minister of the United Kingdom from July 2019 to September 2022. His leadership was marked by significant events, including the final stages of the Brexit process and the UK's evolving relationship with the European Union.
David Cameron: David Cameron is a British politician who served as Prime Minister of the United Kingdom from 2010 to 2016. His tenure was marked by significant events including austerity measures, the handling of the UK's relationship with the European Union, and the initiation of Brexit.
Devolution: Devolution refers to the transfer of powers and responsibilities from a central government to local or regional governments. This process has reshaped governance in various parts of the UK, allowing for greater autonomy and self-governance, impacting political dynamics and public policy across the regions.
Divorce bill: The divorce bill refers to the legislative measures that were proposed to address the financial and legal issues arising from the dissolution of the United Kingdom's relationship with the European Union. This term captures the complex negotiations and legal adjustments needed to separate UK law from EU regulations and frameworks, affecting various areas such as trade, immigration, and citizens' rights.
EU Commission: The EU Commission, formally known as the European Commission, is the executive branch of the European Union responsible for proposing legislation, implementing decisions, and managing the day-to-day operations of the EU. This body plays a critical role in the process of Brexit by negotiating terms between the EU and the UK, shaping how the departure affects EU policies and member states' relationships.
European Union (Withdrawal) Act 2018: The European Union (Withdrawal) Act 2018 is a key piece of legislation in the UK that outlines the process for the UK to leave the European Union, including the repeal of the European Communities Act 1972 and the transposition of EU law into UK law. This act is significant as it sets the framework for how Brexit would be implemented and has major implications for the legal system, constitutional order, and future relationship between the UK and the EU.
Freedom of movement: Freedom of movement refers to the right of individuals to travel, reside, and work freely within a specific area or country without undue restrictions. This concept is crucial in understanding the implications of international agreements and domestic laws that affect how people can navigate borders and access opportunities, particularly in the context of political events like Brexit and the broader challenges of globalization.
Good Friday Agreement: The Good Friday Agreement, signed in 1998, is a major political development that aimed to bring an end to the violent conflict in Northern Ireland known as the Troubles. This agreement established a devolved government for Northern Ireland, promoting peace and cooperation among various political factions. It has significant implications for the devolution of powers to the regions of the UK, particularly in how it shaped the governance structure in Northern Ireland and influenced discussions around Brexit.
Horizon Europe Program: The Horizon Europe Program is the European Union's key funding initiative for research and innovation, aimed at fostering scientific advancements and technological breakthroughs. It follows the previous Horizon 2020 program and is designed to support collaborative research across EU member states and associated countries, addressing global challenges and enhancing Europe's global competitiveness.
Irish border issue: The Irish border issue refers to the complex political and economic challenges that arise from the border between Northern Ireland, which is part of the United Kingdom, and the Republic of Ireland, an EU member. This issue became particularly prominent during Brexit negotiations, as it raised questions about trade, movement of people, and political stability in a region that had a history of conflict and division.
Miller Case: The Miller Case refers to the landmark legal case of R (Miller) v Secretary of State for Exiting the European Union, which was decided by the UK Supreme Court in 2017. This case addressed the constitutional requirements for triggering Article 50 of the Treaty on European Union, ultimately establishing that Parliament must approve the decision to initiate the Brexit process, thereby underscoring the significance of parliamentary sovereignty and the relationship between government and Parliament.
Northern Ireland Protocol: The Northern Ireland Protocol is a key element of the Brexit agreement that aims to prevent a hard border between Northern Ireland and the Republic of Ireland after the UK leaves the EU. It effectively keeps Northern Ireland within the EU's Single Market for goods while allowing it to remain part of the UK, leading to a unique set of trade and regulatory arrangements. This protocol has significant implications for the constitutional relationship between Northern Ireland, the rest of the UK, and the EU.
Parliamentary Sovereignty: Parliamentary sovereignty is a fundamental principle of the UK constitution that establishes Parliament as the supreme legal authority, with the ability to create or repeal any law without being subject to legal limitations. This means that no other body, including the judiciary, can challenge or invalidate legislation passed by Parliament.
Public Mandate: A public mandate refers to the authority granted to elected officials or government bodies by the electorate through democratic processes, indicating public support for their proposed policies or actions. This concept is crucial in determining the legitimacy of government decisions and actions, especially in significant political events like Brexit, where the public's voice directly influences the direction of governance and policy-making.
Referendum: A referendum is a direct vote in which an entire electorate is invited to vote on a particular proposal and can result in the adoption of new legislation or policy. This mechanism allows citizens to have a say in significant national decisions, connecting directly to democratic principles and the legitimacy of political authority. Referendums can highlight tensions between representative democracy and direct democracy, especially when results challenge established political norms or lead to constitutional change.
Retained EU Law: Retained EU Law refers to the body of European Union legislation that was incorporated into UK law following Brexit, allowing certain EU laws to continue to have effect in the UK legal system. This legal framework is significant because it creates a transition from EU law to UK law, ensuring continuity in various sectors such as employment rights, environmental standards, and consumer protections. It also establishes a legal landscape where existing rights and obligations derived from EU membership remain intact post-Brexit.
Rule of law: The rule of law is a foundational principle stating that all individuals and institutions, including the government, are subject to and accountable under the law, which is fairly applied and enforced. This principle ensures that no one is above the law and is crucial for maintaining justice, order, and individual rights within a society.
Separation of powers: Separation of powers is a governance model that divides the responsibilities and powers of government into distinct branches to prevent any one branch from exerting too much power. This principle helps maintain a system of checks and balances, ensuring that each branch—legislative, executive, and judicial—operates independently while also holding one another accountable.
Settled status: Settled status is a form of immigration status granted to EU citizens and their family members living in the UK, allowing them to continue residing and working in the country after Brexit. This status signifies that individuals have been residing in the UK for at least five continuous years and have met specific criteria, providing them with rights similar to those of British citizens. The introduction of settled status reflects broader constitutional changes following the UK's departure from the EU and plays a crucial role in shaping the future relationship between the UK and EU regarding citizens' rights.
Theresa May: Theresa May is a British politician who served as the Prime Minister of the United Kingdom from July 2016 to July 2019, representing the Conservative Party. As Prime Minister, she was known for her leadership during a turbulent period marked by the Brexit referendum and its subsequent negotiations. Her tenure saw significant challenges in unifying her party and addressing the complex constitutional implications of leaving the European Union.
Trade negotiations: Trade negotiations refer to the discussions and agreements between countries or trading partners to establish the terms of trade, including tariffs, trade barriers, and regulations. These negotiations are crucial in the context of international relations and economic policy, as they determine how goods and services are exchanged across borders, affecting both economies involved. In the case of Brexit, trade negotiations played a vital role in redefining the UK's relationship with the EU and other countries after its departure from the EU's single market and customs union.
Transition period: The transition period refers to the phase following the UK's decision to leave the European Union, during which both parties negotiated the terms of their future relationship. This period was crucial for ensuring a smooth withdrawal and provided time to adjust to new arrangements, covering aspects like trade, citizens' rights, and regulatory alignment. It aimed to minimize disruption as the UK moved from EU membership to a new status outside the Union.
UK Internal Market Act 2020: The UK Internal Market Act 2020 is legislation designed to ensure the free movement of goods and services across the United Kingdom following Brexit, establishing a framework for regulatory coherence among the devolved administrations. This act aims to prevent barriers to trade that could arise from differing regulations in England, Scotland, Wales, and Northern Ireland, while also raising questions about the balance of power between the UK government and devolved administrations.