24 March 2017

Verfassungsblog: After Article 50 and Before Withdrawal: Does Constitutional Theory Require a General Election in the UK Before Brexit?

Author concludes that for the sake of the overall stability of the United Kingdom’s constitutional settlement, rather than just consensus on the single-issue of the shape that Brexit will take, such a General Election would still be desirable.

[...] In vindicating the constitutional principle of Parliamentary Sovereignty, the Supreme Court refused to recognise that the result of the EU referendum of 23rd June has any legal significance. Despite this, this post will suggest that the referendum result is a constitutional irritation in the United Kingdom, occupying a place in the grey area between a purely political and legal nature. It will be suggested that this is because, for the first time in the United Kingdom’s constitutional history, the referendum has opened up a powerful new source of popular sovereignty as a social fact, which has come into conflict with the orthodox principle of Parliamentary Sovereignty as a legal fact. Indeed, if the Court had indeed recognised the legal validity of the referendum, this would have been a far more revolutionary act than the validity that has been accorded to the source of EU law, and would arguably have altered the Rule of Recognition of the UK legal system.

This post will conclude that it is necessary for the constitutional integrity of the United Kingdom that this new stream of popular social legitimacy is realigned with the existing stream of Parliamentary Sovereignty. It is argued that the most effective and desirable way in which to achieve this would be for a General Election to take place. Already one month after the vote, Kenneth Armstrong had argued for why a General Election would be desirable before the notification of withdrawal. Such an event seems incredibly unlikely now that the date for triggering has been set. Nevertheless, this post will submit that a General Election would still be desirable and could still be practicable before the withdrawal treaty with the European Union comes into effect. This would ensure that the constituent members of the sovereign Parliament are truly representative of the constituent members of the (socially) sovereign people and that their views on the fundamental constitutional reform of Brexit align. If not, the clash between Parliamentary and popular sovereignty could necessitate a reformation of the United Kingdom’s existing constitutional settlement. [...]

IV. Conclusion: A General Election or a Constitutional Resettlement

As long as there are Parliamentarians whose mandate from their constituencies clashes with the supposed popular sovereign will expressed in the referendum result, the new stream of popular sovereignty and the old stream of parliamentary sovereignty will remain in tension. Arguably, there are only two ways to resolve this clash: the holding of a General Election which will ensure the resetting of the channel between the will of the people and their representatives in Parliament, or a fundamental resettlement of the constitution to officially recognise the new source of popular sovereignty. Kenneth Armstrong argues that triggering Article 50 required “a wide-ranging political conversation and a contest over the future of the UK’s relationship with the EU. In the UK’s constitutional system that can only be achieved through a general election”. Unfortunately, it seems that the opportunity for such representative will formation on the shape of the withdrawal negotiations will now be impossible before the notification of withdrawal next Wednesday.

However, I would still conclude that for the sake of the overall stability of the United Kingdom’s constitutional settlement, rather than just consensus on the single-issue of the shape that Brexit will take, such a General Election would still be desirable. The changes of the political winds during the next two turbulent years of negotiation are unforeseeable. However, even if an early election, which is more difficult to achieve since the passage of the Fixed-term Parliaments Act 2011, is not held it may be desirable to seek an extension from the European Council under Article 50(3) TEU of the negotiation period in order to allow the final terms of the withdrawal treaty to go before the electorate in the 2020 General Election. Indeed, even if such an extension were not granted, the two-year period only refers to the conclusion but not the ratification of the withdrawal treaty. Thus, there could still be the opportunity for the popular sovereign will and  parliamentary representation to be realigned before the Treaty comes into force and the United Kingdom’s membership of the European Union is finally terminated. Otherwise, the cleavages caused by Brexit and the disconnect between the people and their representatives in Parliament may require the United Kingdom’s delicate unwritten constitutional arrangement to finally be explicitly reformulated. With the exacerbating factor of the resurgence of the issue of Scottish independence, the tide may turn towards the recent proposals for the creation of a federal state which could finally recognise popular sovereignty of the individuals who form its constituent parts.

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