10.3 The process of Brexit and its constitutional implications

Brexit, the UK's withdrawal from the European Union, reshaped the nation's constitutional landscape. The process, triggered by a 2016 referendum, challenged traditional power balances between Parliament, government, and courts.

The Brexit journey involved complex negotiations, legal battles, and legislative changes. It tested the UK's unwritten constitution, raising questions about sovereignty, devolution, and the role of referendums in a parliamentary democracy.

Brexit Timeline and Key Events

Referendum and Article 50 Activation

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• Brexit referendum held on June 23, 2016 resulted in 51.9% vote to leave European Union
  • Set in motion complex withdrawal process
  • Sparked debates on constitutional implications of referendums in UK's parliamentary democracy
• Prime Minister Theresa May invoked Article 50 on March 29, 2017
  • Officially began two-year negotiation period for UK's withdrawal
  • Required parliamentary approval following Miller case ruling

Negotiations and Extensions

• UK and EU engaged in extensive negotiations from 2017 to 2019
  • Focused on key issues (citizens' rights, financial settlement, Irish border question)
  • Challenged traditional balance of power between executive and legislature
• Multiple extensions granted to Article 50 process
  • Final Brexit date set for January 31, 2020
  • Followed by transition period until December 31, 2020
• EU-UK Trade and Cooperation Agreement signed on December 30, 2020
  • Established framework for future UK-EU relations
  • Covered areas like trade, security, and governance

Post-Brexit Developments

• Ongoing negotiations on specific issues
  • Northern Ireland Protocol (addressing unique challenges of Irish border)
  • Regulatory alignment (ensuring smooth trade while maintaining UK sovereignty)
• Implementation of new domestic regulatory bodies and frameworks
  • Replaced EU institutions and mechanisms (UK Internal Market Act 2020)
• Continued evolution of UK-EU relationship
  • Adjustments to trade arrangements (customs procedures, regulatory checks)
  • Cooperation in areas like security and research (Horizon Europe program)

Constitutional Challenges of Brexit

Referendum and Parliamentary Sovereignty

• Brexit referendum raised questions about constitutional status of referendums
  • Binding nature on Parliament debated
  • Tension between direct democracy and parliamentary sovereignty
• Miller case (R (Miller) v Secretary of State for Exiting the European Union)
  • Established parliamentary approval required to trigger Article 50
  • Reinforced principle of parliamentary sovereignty
  • Led to passage of European Union (Notification of Withdrawal) Act 2017

Executive Power and Judicial Review

• Prorogation crisis of 2019 led to landmark Supreme Court ruling
  • R (Miller) v The Prime Minister case
  • Reaffirmed limits on executive power
  • Emphasized role of courts in upholding constitutional principles
• Brexit negotiations challenged balance of power between executive and legislature
  • Parliament asserted greater control through mechanisms like Benn Act
  • Unprecedented events (government losing control of parliamentary agenda)

Devolution and Territorial Constitution

• Brexit strained devolution settlement
  • Repatriation of powers from EU to UK raised questions of allocation
  • Consent of devolved administrations became contentious issue
• Good Friday Agreement and status of Northern Ireland posed unique challenges
  • Required innovative solutions (Northern Ireland Protocol)
  • Balanced maintaining peace process with implementing Brexit
• Tensions with devolved administrations over power distribution
  • Initial centralization of returning EU powers before redistribution
  • Led to passage of UK Internal Market Act 2020

Impact of EU Withdrawal Act on UK Constitution

Legal Framework and Hierarchy

• European Union (Withdrawal) Act 2018 repealed European Communities Act 1972
  • Ended supremacy of EU law in UK
  • Incorporated EU law into domestic law as "retained EU law"
• Created new category of domestic law: "retained EU law"
  • Can be modified or repealed by UK Parliament
  • Altered sources and hierarchy of UK law
• Established new relationship between UK courts and EU case law
  • Allowed UK courts to depart from retained EU case law under certain circumstances
  • Supreme Court and High Court of Justiciary given power to depart from retained EU case law

Executive Powers and Parliamentary Scrutiny

• Act granted extensive powers to ministers to amend retained EU law
  • Use of secondary legislation (Statutory Instruments)
  • Raised concerns about potential executive overreach
• Introduced new scrutiny procedures for secondary legislation
  • Enhanced scrutiny procedure for certain types of regulations
  • Created new Parliamentary committees (European Statutory Instruments Committee)
• Balancing need for legal continuity with democratic accountability
  • Time-limited powers to make corrections to retained EU law
  • Sunset clause for certain delegated powers

Regulatory Frameworks and Institutions

• Implementation necessitated creation of new domestic regulatory bodies
  • Replaced EU institutions and mechanisms
  • Examples: UK REACH for chemicals regulation, UK Emissions Trading Scheme
• Established new constitutional relationship with EU regulatory bodies
  • Ended direct jurisdiction of EU agencies in UK
  • Created frameworks for cooperation and information sharing
• Adaptation of UK legal system to post-Brexit regulatory landscape
  • Development of new case law interpreting retained EU law
  • Gradual divergence from EU standards in some areas (financial services, data protection)

Parliament, Government, and Courts in Brexit

Parliamentary Role and Scrutiny

• Parliament played crucial role in scrutinizing and approving key Brexit legislation
  • European Union (Withdrawal) Act 2018
  • EU (Future Relationship) Act 2020
• Asserted authority through various mechanisms
  • "Meaningful votes" on Withdrawal Agreement
  • Amendments to government motions
  • Control of parliamentary agenda (Standing Order No. 24 debates)
• Established new committees and procedures for Brexit scrutiny
  • Exiting the European Union Select Committee
  • European Statutory Instruments Committee

Government Strategy and Negotiations

• Successive Prime Ministers responsible for negotiating with EU
  • Setting overall Brexit strategy
  • Faced challenges in securing parliamentary support
• Government's role in implementing Brexit legislation
  • Drafting and introducing key bills
  • Using delegated powers to make necessary legal changes
• Balancing international negotiations with domestic political pressures
  • Managing party divisions over Brexit approach
  • Responding to parliamentary scrutiny and votes

Judicial Intervention and Constitutional Interpretation

• UK Supreme Court made landmark rulings on Brexit-related constitutional issues
  • Miller case on Article 50 (parliamentary approval required)
  • Prorogation case (unlawful suspension of Parliament in 2019)
• Lower courts also played significant role
  • Wightman case (revocability of Article 50 notification)
  • Challenges to use of prerogative powers in Brexit process
• Courts' role in interpreting and applying retained EU law
  • Developing new principles for statutory interpretation
  • Balancing continuity with ability to diverge from EU jurisprudence