Constitutional Reform and Brexit

This book examines the extent to which Brexit has impacted upon the operation of the British constitution, prompting in turn consideration of how some of the factors which contributed towards the outcome of the 2016 referendum, as well as the event of Brexit itself, might inform debates surrounding constitutional reform moving forward. The work seeks to make sense of the constitutional implications of Brexit and to revisit some of the key debates to have taken place in respect of particular constitutional reform proposals in order to assess the extent to which recent Brexit related developments inform the perspectives which are taken upon their merits and prospects. The book is divided into two parts. The first provides some context for the substantive treatment of the potential impact of Brexit on constitutional reform debates which is to be found in part two. Part two centres on various specific constitutional reform themes or issues, which are explored further within the context of Brexit. For each such issue, the main parameters of the debates which have taken place are sketched out before moving on to consider how it has informed, or may come to be informed, by the phenomenon of Brexit. By so doing, it looks to some future directions for constitutional reform which take account of the factors driving the discourses which gave rise to the referendum outcome and subsequent developments, as well as offering meaningful responses to these. The book will be of interest to academics, researchers and policy-makers working in the areas of constitutional law, constitutional politics, philosophy and history.

table of content

Acknowledgments

List of abbreviations

Table of cases

Table of legislation

Table of treaties and conventions

 

Introduction

Chapter One: The British Constitution and Constitutional Reform

Introduction

The UK’s Constitutional Model

Parliamentary Sovereignty

Constitutional Sources

Distinguishing features of the British Constitution

Constitutional Reform Debates Pre-1997

The Early Twentieth Century

The Later Twentieth Century

The Era of Constitutional Reform, 1997-2016

Constitutional Reform under New Labour, 1997-2010

Constitutional Reform in the Coalition and Conservative Eras, 2010-16

Conclusion

Chapter Two: The UK within Europe and Developments in the Land of Brexit

Introduction

The UK within Europe

The UK as an EEC Member, 1973-1993

The UK as an EU Member, 1993-2016

The Referendum

The Key Issues During the Referendum Campaign

The Causes of Brexit

The Brexit Process: The UK’s Withdrawal from the European Union

Triggering Article 50: June 2016-March 2017

The Brexit Negotiations, March 2017-March 2019

The First Extensions, March 2019-June 2019

The ‘Implementation’ of Brexit: July 2019-January 2020

Postscript: Brexit after Brexit

Unpicking the constitutional issues

Conclusion

Chapter Three: The Allocation of Sovereignty Authority between Parliament, the Executive and the ‘People’ in Constitutional Decision-Making Processes

Introduction

The traditional constitutional position

Challenges and changes up to 2016

The emergence of the referendum

The shifting parameters of Parliamentary Sovereignty

The Brexit context

The 2016 Referendum

Who is Sovereign: Parliament, People or Executive?

Next Steps

Challenges of the referendum to be addressed

The need for clear parameters for the use of constitutional referendums

Enhancing the legitimacy of Parliamentary Sovereignty through wider constitutional reforms

Conclusion

Chapter Four: The Constitutional Integrity of the United Kingdom and the Devolution of Power

Introduction

The traditional constitutional position

Challenges and changes up to 2016

The emergence of devolution for the UK’s constituent parts

Scottish devolution: Enhanced autonomy and the push for independence

Welsh devolution: From administrative to legislative autonomy

Northern Ireland and the complexities of the peace process

The English Question: Regionalism, Localism and EVEL

Asymmetrical devolution and the semi-federal UK

The Brexit context

The reinforcement of difference and division

The unique status of Northern Ireland

The Limitations of the Sewel Convention: The Role of the Devolved Institutions in Brexit

Repatriating power and controversies over the Internal Market Act 2020

Next Steps

The size and shape of the post-Brexit UK

Setting out a Post-Brexit Territorial Settlement

The Northern Ireland Protocol and the Irish Border Issue

Conclusion

Chapter Five: The UK’s Model for the Protection of Human Rights

Introduction

The traditional constitutional position

Challenges and changes up to 2016

The Human Rights Act 1998

The EU Impact and the Charter of Fundamental Rights

The Brexit context

The loss of EU protections

The Cessation of Application of the Charter of Fundamental Rights

ECHR Membership and the Human Rights Act

Next Steps

The Independent Human Rights Act Review and Proposals for a "Modern Bill of Rights"

Weakening the UK’s Relationship with the ECHR

Reforming or replacing the HRA model

The scope of rights protected by a reformed HRA or bill of rights

Human Rights and Devolution

Conclusion

Chapter Six: A Codified Constitution　? The UK’s Constitutional Model Post-Brexit

Introduction

The traditional constitutional position

Challenges and changes up to 2016

The Brexit context

Next Steps

Consolidation of constitutional statutes

Codification of non-statutory constitutional norms

The creation of a codified constitutional model

Key issues to be resolved in the process of creating a new constitution

Conclusion

 

Conclusion

Bibliography

Index