Brexit, Article 50 and the Contested British Constitution by Sionaidh Douglas-Scott

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As the debate about Brexit moves on from whether the UK should stay in the EU or leave it to what exactly its decision to leave means, questions of UK constitutional law are beginning to emerge about how exactly to handle the process. On this subject we recommend Sionaidh Douglas-Scott‘s article “Brexit, Article 50 and the Contested British Constitution”:

This article discusses the early stages of the Art 50 TEU process, and those aspects that relate most clearly to British constitutional law. Its overarching theme is that the Brexit process is rendered highly problematic by the lack of any coherent conception of the British Constitution. Different parties settle on interpretations of constitutional law that support their case, but often there is no determinative answer. Three broad issues are examined in order to substantiate this claim: the EU Referendum, the triggering of Article 50, and the Devolution aspect of Brexit. I argue that each of these issues reveals tensions and competing constitutional interpretations that suggest that the British Constitution is ill-equipped to deal with Brexit.

The conclusions are quite stark:

Our Constitution, let alone our constitutional law, does not provide determinate answers to most of the questions posed by Brexit. We might argue that this is unsurprising, that Brexit is an extraordinary event, constitutionally unforeseeable, introducing a potential new revolution into UK law and society. Yet the British Constitution has long been vaunted for its adaptability and its ability cope with new circumstances (the loss of Empire, major world wars, and so on), for its flexibility and enduring nature. However, the challenges of Brexit reveal the Constitution’s 21st century weaknesses. An event as momentous as a British withdrawal from the EU requires clear and principled constitutional law as a guide. But we do not have that. The British Constitution has become a contested and uncertain object, of sometimes ghostly and shifting form. As a result, we are thrown back onto politics, where the most powerful tend to dominate.

The full paper is available on SSRN as well as a recent blog post on the UK Constitutional Law blog about the Great Repeal Bill.