Brexit: A Very English Problem Par John McEldowney
Making sense of the constitutional crisis that the UK is facing over Brexit is not easy. Despite the passage of time, a binary choice of leave or remain offered at the referendum in 2016 has not to date resulted in clarifying the kind of relationship the UK might have with the EU after Brexit that will be acceptable to the UK Parliament. It will be remembered, that the referendum in 2016 was won by a narrow majority, 51.89% to 48.11%. In England, 53.4% voted to leave while 46.6% voted to remain. In Scotland 38.8% voted to leave but 62.0% voted to remain. In Northern Ireland, 44.2% voted to leave and 55.8% voted to remain. In Wales 52.5% voted to leave and 47.5% voted to remain. The differences in preferences in each devolved nation, highlights the significance of devolution and the existence of a wide spectrum of opinion across the United Kingdom. The referendum also underpinned the primacy of England, the largest of the four nations, and the UK’s national sovereignty. Brexiters championed their cause as “taking back control”; with echoes of a re-affirmation of an old pre-colonial form of sovereignty. Remainers were branded as an elite and “enemies of the people.” Evidence from economists and lawyers on the technical and legal aspects and economics of EU membership was highly contested, subjected to ridicule and often treated as partisan and unreliable. Conspiracies were rumoured to exist between different “elites” in society against the popular vote of ordinary people. Characterising the debate about EU membership in such terms has not facilitated interpreting the results of the referendum. It has also shown the difficulty for MPs, who serve their own electorate and constituency, to interpret the referendum result and give it effect in the kind of future relationship between the UK and the EU that is legally possible. Currently views are polarised as to the kind of leaving the EU that is in the national interest. The paradox is that membership of the Customs Union and the Single Market is sought by some, even though the UK is leaving the EU. The current Withdrawal Agreement is unpopular and rejected by MPs and there are even some who support leaving the EU with no agreement whatsoever. The rancour and distrust have reached new levels of unedifying behaviour around Westminster.
The economic context is important to consider. Many economists warn of the dangers of leaving the EU without a credible withdrawal agreement, at the very least because of the many uncertainties that arise. Calculating the economic and social implications is proving difficult, because the future trading relationship with the EU is uncertain as will be the ability of the UK to enter into trade agreements within the WTO framework. The context of UK productivity performance being stubbornly weak over the past years further complicates analysis. As Nick Crafts comments: “Areas of concern include underspending on infrastructure, a badly designed tax system, very restrictive land-use planning rules, schools that deliver low-quality education and innovation policies that result in low levels of R and D”. Reforming existing policies was always within the terms of the current EU membership but it is unclear how reform might be accommodated once the UK leaves the EU. This will depend on the future relationship with the EU and at the time of writing this is hard to assess. It is clear that this will be complicated and probably involve the forging of industrial policy through an independent agency rather than for the government of the day to attempt this within the scale of a five-year Parliament.
As the Economist laments before Brexit, “Britain had a reputation not just for pragmatism but for sound administration and a predictably sensible legislature”. This does not appear to be the case anymore. Conflict between the referendum results and elected politicians has the potential to destroy political party unity and also political consensus. The dangers are clearly apparent. The fragility of a long-standing belief in Parliamentary democracy and the rule of law are being exposed for all to see, as both are vulnerable to popular ideology and the strength of media hype and populism. Evidence-based policy making has given way to over-simplistic sound bites and populism. Binary choices made at a single moment in time are not easy to implement when the arguments are so complex and related to a myriad of variables that suggest the necessity of a continuing engagement with policy making and a pragmatic approach for future planning.
Politically there is growing evidence that the party system is in danger of collapse or, at the very least, having to be re-booted to take account of new allegiances and discourse. There are dire warnings that the Conservative Party, as the government of the day, will haemorrhage support and may even decline. The Labour party as the main opposition party is similarly fractured. More worrying still are the signs that the constitutional framework of the UK is not in union with Scotland and N. Ireland (who voted to remain). In particular, they may pull away from union with England as disillusionment over the Brexit process intensifies.
A weak Executive has had, however, to give way to a growing restiveness in Parliament. A number of amendments were made to the EU (Withdrawal) Act 2018, most notably requiring a “meaningful vote” in Parliament on the Withdrawal Agreement. The House of Commons rejected the Withdrawal Agreement on 15th January 2019, the cornerstone of Government policy, by an unprecedented 432 votes to 202, after five days of intense debate. Many MPs in the Government’s own party voted against the Withdrawal Agreement and the vote against curiously united both pro Brexit and remain MPs and left the Prime Minister in considerable difficulties as to how to proceed – not least of how to leave the EU with an acceptable arrangement that will pass Parliamentary scrutiny. The PM did not resign, a normal conventional response to such a defeat. Instead, her government won a vote of confidence the next day when Conservative MPs and Democratic Unionists united to keep the Government in Office. There are a number of constitutional implications that flow from the UK’s Brexit experience, most of them difficult to accept and hard to reconcile with the current debates and assertions over Brexit.
The UK’s unwritten constitution is not adept at handling a referendum victory for one side while the majority of MPs are in favour of the side that lost. Re-running a close referendum result is not unpalatable in written constitutions, such as Switzerland or Ireland, and where the government of the day may respond within the constitutional arrangements and re-run a result it is unhappy with. However, in the UK, there is little experience of this. The underlying problem is that leaving the EU is more complex and technical than at first thought and public opinion was easily garnered towards an outcome that was not well explained or understood, as to the potential economic consequences. Simplification of what EU membership entails was not well communicated as were the full consequences of leaving or the procedures that might entail. The process of leaving the EU was represented as a single event and moment, whereas in reality it is a continuous process that will take many years and involve difficult legislation to pass and interpret.
The major problem for MPs is that the tradition of MPs elected by their constituents to make decisions on their behalf is at odds with the referendum outcome where the voters claim strong “democratic” credentials and a higher order of authority over MPs. The reality is more complicated. The UK’s sovereign parliament is vested in the MPs in the Commons and Peers in the Lords. The referendum result is legally only advisory, and at odds with many MPs views. It is possible for MPs and electors to be reconciled, but this has yet to be seriously attempted. The consequences of such a rift are likely to resonate for years to come, even after the Brexit issue is resolved.
There are also some worrying aspects of how the Brexit legislation, the EU (Withdrawal) Act 2018, has resulted in increasing delegated powers to the government of the day. This extension of powers to allow Ministers to amend primary legislation through the use of ministerial powers is alarming because it has the potential to give unfettered powers to the Executive. The House of Lords Select Commitee on the Constitution warned about the departure from the normal progression of legislative scrutiny to a “lighter-touch processes of secondary legislation, other than in exceptional circumstances”. The Select Committee also identified other trends such as the use of skeleton Bills which contain widely defined delegated power in the absence of any substantive policy. This has a bad effect on the role of Parliamentary scrutiny. More generally there is concern about some short-circuiting the normal way Bills are drafted. Instead of containing the main details and substantive clauses setting out what the Bill hopes to achieve, there is a tendency for the Bill to give only general principles and little detail. This may not facilitate the scrutiny such Bills deserve and may leave the details to be addressed through secondary legislation. The outcome is to give the Executive too much power over the law with little transparency or detail revealed in the actual legislation.
What is the way ahead? Political choices include the option of a general election or a new referendum. There is much unease about the possibility of a no-deal Brexit with considerable uncertainty and market volatility at risk. Delaying Article 50 is another option, but this requires all the Member States to agree and there are pending May elections for MEPs to the EU Parliament that has to be considered. This may mean that the UK has to elect new MEPs, a great irony as it is about to leave the EU. An easier possibility is to revoke Article 50. According to the European Court of Justice this can be done unilaterally by the UK but it would require Parliamentary approval.
Parliamentary options include MPs taking an active and hitherto unprecedented step of controlling the Business of the House of Commons away from the choices determined exclusively by the Government. There is also the possibility of holding free votes on various options that might encourage MPs to select the one that is most likely to command the widest possible support. Negotiating any new Withdrawal Agreement will take time and seems unlikely in the period remaining before 29th March 2019, the date set in statute for the UK to leave the EU.
The constitutional reform debate has also been re-ignited by Brexit. One possibility is to take the opportunity of dissatisfaction over Brexit to reform Parliamentary procedures and/or to consider the merits of a written constitution. The latter is advanced as a means of clarifying the role and function of each element – the legislature, the executive and the judiciary. This is a highly ambitious project and is likely to excite controversy as the interpretation of a written constitution is likely to require judicial oversight. This is highly problematical for many who see that judicial power is in the form of an unelected verdict on matters that are best resolved by the politics of the day and the choices of an elected Government. It is hard to see how a written constitution will address many of the issues specifically raised by Brexit, that is about policy choices and their implementation.
It is easy to describe the UK as having a “Constitutional moment” or even to characterise events in terms of a “crisis”. It is possible to look historically and see parallels with the Corn Laws, Irish Home Rule, and votes for women. No matter how strong are the historical parallels, there is little doubt that in recent times Brexit has set new boundaries for debate and discussion. In essence, the question is how do MPs serve their constituents and electorate while at the same time take forward the outcome of a referendum? That answer that may not be easy to find within the existing UK constitutional arrangements.
Par John McEldowney, Professeur à l’Université de Warwick
 See: IFS, Special Issue On Brexit: New Evidence and Policy Perspectives Fiscal Studies Vol. 39 number 4 December 2018
 N. Crofts” Industrial Policy in the context of Brexit” IFS, Special Issue On Brexit: New Evidence and Policy Perspectives Fiscal Studies Vol. 39 number 4 December 2018 P. 695.
 The Economist 19th January 2019 p. 29.
 House of Lords, Select Committee on the Constitution 16th Report of Session 2017-19 The Legislative Process: The Delegation of Powers HL Paper 225 para. 2.
 Vernon Bogdanor, Beyond Brexit: The British Constitution London: Hart Publishing, 2019