It is not my purpose to endorse these claims as to the (potential) constitutional underpinnings of Brexit, nor to condemn the domestic reliance on the idea of parliamentary sovereignty as a central organising conception of the UK constitution. Instead, I simply want to consider: if there were constitutional factors which contributed to the referendum decision to leave the EU, such as those sketched above, can they be responded to? Or are these really constitutional concerns which extend beyond the UK’s relationship with the EU? This will be important in two ways: first, regarding the future development of the UK constitution, and secondly, regarding the future of the post-Brexit EU. First, the uncertainty about any underlying constitutional causes – as about much else concerning Brexit – makes it far from straightforward to anticipate how the future development of the UK constitution could respond to this agenda. Again, much would depend on the future substantive relationship agreed with EU – if the UK were to end up formally outside of the Union, but within related structures such as the single market, and consequently subject to fields of EU law, it would be open to question whether this could amount to a restoration of sovereignty in any sense. Indeed, many might suggest that in such circumstances the UK’s power to control its own affairs would be diminished, given the loss of influence over EU law-making this would necessarily entail. Even if the UK were to negotiate a position entirely apart from the EU and its legal norms, there are other international institutions and power structures with which we would be required to engage – will the accountability gap be any less apparent, for example, with respect to the WTO, or the institutions which could be empowered under international trade agreements? It is difficult to avoid the conclusion that if Brexit is intended to herald a return to a romanticised constitutional past it will be a significant disappointment. A UK constitution founded on the principle of untrammelled national sovereignty is not just impossible under modern conditions, but the very notion is a myth – this much should be readily apparent in a tradition which is sceptical of the utility of formal limitations, while recognising that political constraint can provide the core of a constitutional framework. The unavailability of a constitution that is invulnerable to European influence does not mean abandoning all ideas of (parliamentary) sovereignty, appropriately understood, operating in a domestic context. It also does not mean that the broad constitutional concerns
It is not my purpose to endorse these claims as to the (potential) constitutional underpinnings of Brexit, nor to condemn the domestic reliance on the idea of parliamentary sovereignty as a central organising conception of the UK constitution. Instead, I simply want to consider: if there were constitutional factors which contributed to the referendum decision to leave the EU, such as those sketched above, can they be responded to? Or are these really constitutional concerns which extend beyond the UK’s relationship with the EU? This will be important in two ways: first, regarding the future development of the UK constitution, and secondly, regarding the future of the post-Brexit EU. First, the uncertainty about any underlying constitutional causes – as about much else concerning Brexit – makes it far from straightforward to anticipate how the future development of the UK constitution could respond to this agenda. Again, much would depend on the future substantive relationship agreed with EU – if the UK were to end up formally outside of the Union, but within related structures such as the single market, and consequently subject to fields of EU law, it would be open to question whether this could amount to a restoration of sovereignty in any sense. Indeed, many might suggest that in such circumstances the UK’s power to control its own affairs would be diminished, given the loss of influence over EU law-making this would necessarily entail. Even if the UK were to negotiate a position entirely apart from the EU and its legal norms, there are other international institutions and power structures with which we would be required to engage – will the accountability gap be any less apparent, for example, with respect to the WTO, or the institutions which could be empowered under international trade agreements? It is difficult to avoid the conclusion that if Brexit is intended to herald a return to a romanticised constitutional past it will be a significant disappointment. A UK constitution founded on the principle of untrammelled national sovereignty is not just impossible under modern conditions, but the very notion is a myth – this much should be readily apparent in a tradition which is sceptical of the utility of formal limitations, while recognising that political constraint can provide the core of a constitutional framework. The unavailability of a constitution that is invulnerable to European influence does not mean abandoning all ideas of (parliamentary) sovereignty, appropriately understood, operating in a domestic context. It also does not mean that the broad constitutional concerns
Gordon%20EU%20Const%20Brexit%20paper%20Sept%202016%20-%20accepted%20final%20version%20w%20abstract.docx