Going out for a constitutional
Robert Philpot welcomes a timely speculation. Madeleine Kingsley commends a consummate prose collection Beyond Brexit: Towards a British Constitution
I. B. Tauris, £20
Reviewed byRobert Philpot
IF YOU open that Pandora’s box,” Foreign Secretary Ernest Bevin commented on the creation of the Council of Europe in 1948, “you never know what Trojan horses will fly out.”
As Vernon Bogdanor argues in Beyond Brexit, “that, perhaps, was the most prescient remark ever made about Britain’s involvement with the European movement.”
It might well also describe Britain’s current Brexit travails. If there is a thread running through Bogdanor’s learned account, it is how the UK has failed to recognise, understand and grapple with the constitutional complexities thrown up by both our decision to join the EEC in 1973 and to leave the EU in 2016.
In the 1970s, as well as the past three years, most of the focus has been on the economic consequences. Bogdanor’s book, aimed at the general reader rather than the academic expert, is the perfect antidote to this fixation, however important.
As Bogdanor details, the “constitutional revolution” involved in joining the EEC was profound but little debated or appreciated. In all manner of ways, Europe challenged the concept of parliamentary sovereignty; a principle which is both unique to Britain and the cause of our lack of a written constitution. British law became subordinate to European law, with the courts, for the first time, able to override legislation deemed incompatible with it. Through the European Charter of Fundamental Rights, the UK became exposed to a bill of rights and to the judicial review of parliament’s decisions. And the 1975 referendum, like that of 2016, indicated that popular sovereignty trumped parliamentary sovereignty.
But, despite what some of its proponents may hope and opponents fear, Brexit is unlikely to mean a winding back of the constitutional clock to 1973 for two main reasons.
First, having tasted the protection of their rights by the courts, will British citizens really accept the assurance that these are best guaranteed by government and Parliament?
Such a step, Bogdanor believes, “goes very much against that in most democracies where rights protection is gradually being enlarged rather than abolished”.
Second, Brexit is likely to reshape, and possibly break the relationship between the UK government and the devolved administrations of Scotland, Wales and Northern Ireland, as well as reviving the English Question.
Already, arguments abound: about whether Scotland can be forced from the EU against its will; where powers repatriated from the EU should lie and money should be spent; and, of course, the future of the Good Friday Agreement.
Bogdanor argues that possibly the only way to resolve the constitutional uncertainty that Brexit has wrought — and the “nakedness of our unprotected constitution” it has revealed — is through a codified constitution. Indeed, the current debate about the rightness or otherwise of a “People’s Vote” exposes the ad hoc manner in which referenda have been called and conducted.
Bogdanor’s case that Brexit might provoke a “constitutional moment” is well made but possibly misplaced. As he recognises, the referendum uncovered a cultural divide in Britain, replacing class politics with identity politics. Quite whether a debate about our rights and duties as citizens, and the future of the United Kingdom, would salve or exacerbate the nation’s deep divisions must be open to question.
Brexit is unlikely to turn the clock back to the 1970s
Robert Philpot is a journalist and author of ‘Margaret Thatcher The Honorary Jew: How Britain’s Jews Helped Shape the Iron Lady And Her Beliefs’