Sionaidh Douglas-Scott speaks to us about her book Brexit, Union, and Disunion: The Evolution of British Constitutional Unsettlement, published by Cambridge University Press (2023).
This book provides a critical analysis of Brexit, placing it in the broader context of the historical development of the British Constitution and earlier disputes as to the meaning of statehood, sovereignty and territorial boundaries. Some of the greatest challenges posed by the UK’s withdrawal from the EU are those it places on the British Constitution, which is already ‘unsettled’ and under strain. This book investigates this impact, but is also unique in locating Brexit in the broader context of historically significant British ‘acts of union or disunion’ - such as the loss of former US colonies and British Empire, and the place of Scotland and Ireland in the Union. These precedents help us understand how a British constitutional identity has been shaped or dismantled by legal concepts of union or sovereignty.
Brexit, and the huge changes this brought to the UK was the major motivation for this book. There was hardly an aspect of British life that it did not touch. But some of the greatest challenges posed by Brexit are those it places on the British Constitution, which is already ‘unsettled’ and under strain. This book investigates this impact.
I was also motivated by the realisation that ruptures and huge changes to the geographical and constitutional scope of the UK are not new. Many insights may be gained from investigating earlier disputes as to the meaning of British statehood, sovereignty and territorial boundaries - - such as the loss of former US colonies and British Empire, and the place of Scotland and Ireland in the Union. Frustratingly, too many of these past experiences have been forgotten, in what I refer to as acts of ‘constitutional amnesia’. My book retrieves and revisits them, to explore the lessons they provide.
EXTRACT FROM INTRODUCTION
“On 23 June 2016, a majority of the UK electorate who voted in the EU in-out referendum voted to leave the EU. This was a defining moment in the constitutional law and politics of the UK…
Brexit gave rise to a wide range of constitutional challenges and conundrums, which included: the role of ‘advisory’ referendums in Britain’s Constitution; confusion over the UK’s constitutional requirements for starting the EU withdrawal process; the respective roles of the UK Parliament and government in Britain’s EU withdrawal; the position of the devolved nations in the Brexit process and the future of the territorial State; the extent and nature of domestic legislative changes necessary to complete Brexit, especially the increase of extensive executive powers; and the extent to which human rights will enjoy domestic protection post-Brexit…
The British Constitution has long been characterized as resting on the sovereignty of Parliament, and as unwritten, flexible, uncodified in nature, with political conventions and ministerial accountability often taking the place of hard law. However, this was a Constitution whose very uncodified and sometimes tacit nature was nonetheless supposed to give rise to a holistic constitutional identity. There is no single document comprising the British Constitution, which instead is a blend of primary and secondary legislation, legally unenforceable conventions, arcane and opaque royal prerogatives, and insubstantial usages and understandings.
Much of the blame for the articulation of exceptionalism, flexibility and pride in the uncodified British Constitution must lie with Albert Venn Dicey…According to Dicey…‘The[e] secret source of strength is the absolute omnipotence, the sovereignty of Parliament.’[1] The other doyen of Victorian constitutionalism, Walter Bagehot … claimed that the ‘efficient secret of the English[2] Constitution’ lay in the very close union and nearly complete fusion of executive and legislative powers. Both Dicey’s and Bagehot’s constitutional ‘secrets’ can prove highly damaging today. Unlimited parliamentary sovereignty acts as a straitjacket, making it impossible to protect key principles by constitutional entrenchment and closing off other constitutional models such as federalism. Bagehot’s ‘efficient secret’ has come close to enabling executive sovereignty…
However, this organic Constitution underwent a gradual reform process in recent decades…The changes included EU membership; the 1998 Human Rights Act; devolution in Scotland, Wales and Northern Ireland; removal of most hereditary peers from the House of Lords; and the increasing use of referendums as instruments of constitutional change. …
This went hand in hand with developments undermining law’s connection with the State. Post-sovereign approaches argue that States now share their powers with supra-State, sub-State, and trans-State systems….
However, Brexit challenges this recent vision of post-sovereignty. Perhaps the most common constitutional idea to feature in Brexit debates was a reassertion of national sovereignty, of ‘taking back control’. Yet this is an anachronistic notion of sovereignty, and too simplistic. It fails to capture the way in which pooling sovereignty in one area may actually empower a State.…
And yet there is little evidence that Brexit will provide a ‘constitutional moment’ in which a common solution will be found to these constitutional conundrums. It is doubtful whether a federal UK or codified Constitution will emerge, however much new constitutional arrangements are needed to deal with Brexit. Advocates of Scottish independence, or a united Ireland, are unlikely to have enthusiasm for an arrangement that would entrench them in the UK, even if it provided entrenched legal procedures to protect devolved nations within the State. And those satisfied with Brexit are unlikely to desire a codified Constitution or federal option, given that a desire for strong parliamentary sovereignty motivated their euroscepticism in the first place…In these circumstances, the outcome of the Brexit referendum provides a severe constitutional challenge for Britain.
And yet, this is not the first time that Britain has encountered challenges to its very constitutional identity. Past ‘acts of union and disunion’,[3] such as the loss of British colonies in North America and British Empire; the admission of Scotland and Ireland into the union and then departure, or possible departure (Scotland); and the UK’s EU membership since 1973, all provide precedents which help us understand how a British constitutional identity has been shaped or dismantled by law, and how law has determined issues of union, sovereignty and devolution of power. There are lessons to be learned from surprisingly similar past situations, although past examples of constitutional transformations are all too rarely invoked. Such constitutional amnesia may be a useful shield for obfuscating an unsettling imperial past involving violence, dark acts and an ugly history of colonialism. Nonetheless, there are surely ways to retrieve and re-examine the constitutional legacies of empire without falling into an unrealistic and unwholesome nostalgia…
Arguments over the nature of constitutional arrangements – such as whether the British East India Company had sovereignty over parts of India, or whether the British Parliament could legislate for the entirety of the empire, raise interesting comparisons with contemporary discussions over where sovereignty lies in the EU.
Furthermore, debates in the late 19th/early 20th centuries over Irish Home Rule prefigured contemporary debates about Scottish independence. England, Scotland, Wales and Ireland have a long history together. Questions over the union and how to manage UK unity are hardly new. However, past considerations, such as the early 20th century exploration of ‘Home Rule All Round,’ are infrequently revisited. The British seem ignorant of their constitutional history.
Britain’s past abounds with acts of a constitutional nature across the globe, including constitution-making and managing constitutional transitions. All sorts of relationships between Britain and its overseas territories existed, and many of those territories, such as Australia and Canada, applied federalism while still within the British Empire. In contrast, there was little enthusiasm for federalism within the UK…This indicates that the constitutional law applying within Britain was understood as differing from that which applied in Britain’s then colonies and overseas territories, although this was never made explicit, and indeed, such a bifurcated approach conflicted with many of Britain’s actions in the past….
Instead, commentaries on the British Constitution have often employed an ‘exceptionalist’ narrative, one that views Britain’s uncodified Constitution, and its historical evolution, as unique and unparalled, but nonetheless a blessing and infinitely preferable to ‘foreign’ Constitutions…
And once we look a little more closely, we see that a dominant narrative of peaceful continuity and exceptionalism is an English account that fits less happily with arrangements in other parts of the UK. Northern Ireland has certainly not enjoyed a long, peaceful history of gradually evolving constitutional affairs. Scotland possesses its distinct legal system, a different understanding of unionism, and frequently evokes a distinct constitutional tradition... In these circumstances, the traditional narrative of unlimited parliamentary sovereignty appears less as a shared constitutional doctrine, and more as a device to manage and suppress other peoples – such as Scots, Irish, Welsh, and in the past, colonists.
****
Therefore, this book has two main leitmotifs: constitutional inadequacy and constitutional amnesia. They come together in the phenomenon of Brexit. The remaining 10 chapters of this book are divided into two parts. The first part examines five specific case studies, or ‘acts of union and disunion’. The second concentrates on five themes of particular relevance to Brexit, alert to the relevance of the historical case studies to these themes.”
[1] Dicey, England’s Case Against Home Rule (3rd ed., 1887) 168.
[2] Notably, Bagehot entitled his work, first published in 1867, The English Constitution. Dicey also referred, throughout The Law of the Constitution, to the English Constitution. Both works, however, cover the whole UK.
[3] L Colley, Acts of Union and Disunion (Profile Books, 2014).