brexit and parliamentary sovereignty essay

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The Brexit Sovereignty Problem

brexit and parliamentary sovereignty essay

Oliver Garner reviews Brexit, Union and Disunion : The Evolution of British Constitutional Unsettlement by Sionadh Douglas-Scott (Cambridge University Press, 2023)

Sionadh Douglas-Scott’s monograph depicts Brexit as the latest example of union and disunion in the United Kingdom’s constitutional (un)settlement. The predicative claim running throughout these chapters is that the “imposition of resolute and unlimited parliament sovereignty” has presaged disunion. The book is informative on the United Kingdom’s constitutional history, and admirable in its efforts to place Brexit within its wider historical context. The conclusion’s appeal for a new path in determining the autonomy of the United Kingdom’s devolved regions is powerful. However, the thrust of the main argument risks being diluted by the repetition arising from the author’s structural choices. If the argument against parliamentary sovereignty had been foregrounded as the lens through which the case studies of disunion were analysed then this could have provided a sharp focus for Douglas-Scott’s critique of UK constitutional orthodoxy.

How Do You Tear Down a Border? – Matthew Longo on the Pan-European Picnic and the Meaning of Freedom

Brexit, Imperial disunion, and colonialism

The summaries of union and disunion in Part I impart a detailed cache of historical information in a manner akin to a textbook. Part I presents the five case-studies of Scotland (chapter 1), Ireland (chapter 2), the North American colonies (chapter 3), the British Empire and Commonwealth (chapter 4), and Britain and Europe (chapter 5). However, greater emphasis on how these case studies contributed to the overarching Brexit phenomenon would have strengthened the analytical focus. There are examples of such intriguing parallels: Douglas-Scott speculates that the Scottish story’s culmination in “asymmetric patterns of devolution in the UK…may have contributed to the rise of English nationalism”. In turn, she argues that the 2015 Conservative manifesto promises for “English Votes for English Laws” and the Brexit referendum were “unsatisfactory remedies” to address this growth in English nativism.

More could have been made of connections between the Irish Question and EU membership, for example in the tension between “use of a referendum…and the unbounded parliamentary sovereignty that Dicey had been so keen to stress” in the discussion of the famous jurist’s advocacy for an exercise of popular sovereignty. Such parallels between Brexit and Imperial disunion are made in the comparison of the ambiguity surrounding the ratification of the Anglo-Irish Treaty in 1921 and the fulfilment of constitutional requirements for triggering Article 50 TEU in the 2017 Miller litigation. A recurring theme tying the internal case studies to Brexit is the role played by squaring the circle of unlimited parliamentary sovereignty and the need to accommodate changes in the territorial scope of Westminster’s reach. The conclusions of each chapter focus on the contemporary Brexit and devolution story, driving home these connections.

The shift to the imperial case-studies beyond the British Isles in chapters 3 and 4 may have provided more of an opportunity for comparison between the transition from Empire to Commonwealth and from EU membership to Third-Country status. For example, the ambiguity of the legal position of the North American colonies, in which “the legal and constitutional nature of the relationship was murky”, could have been compared to the debates over the nature of the EU itself. The Privy Council’s capacity to invalidate colonial legislation may be compared to the Court of Justice of the European Union’s claim regarding the supremacy of EU law. The discussion of natural law reasoning and the American colonists’ reliance upon Calvin’s case regarding personal allegiance to the King without accepting the authority of Parliament may have been compared to the Court of Justice’s development of EU citizenship, and the tensions surrounding a dual-constituent identity for UK nationals.

Further such comparisons to dual-sovereignty between the Member States and the European Union could have been extracted from the discussion of the East India Company and the Mughal Empire’s coexistence before the establishment of the British Raj in India in 1858 whereby the princes held a “ ‘residuary sovereignty’…that ‘was their own, not granted to them by the British’”. A rigorous comparison and contrast between Empire and the EU may have helped to distinguish the structure and legitimation of the two forms of order. In turn, this could have been used to differentiate between the arguments for independence from colonial domination and withdrawal from supranational co-operation.

Douglas-Scott does draw an explicit parallel to the EU later in the chapter on the constitutional status of British Empire: “There has been a tendency to perceive this growth [in the production of theories of transnational constitutionalism by scholars] as the development of a new post-war legal order. But to do so is to neglect a possible earlier nineteenth-century transnational constitutionalism, one engendered by empires”. However, the elephant in the room with which the author seems unwilling to engage is whether any of the reasons and dynamics that led to colonies, dominions, and constituent nations of the United Kingdom seeking independence and autonomy in the last centuries may also apply to the reasons for the UK popular vote to withdraw from the EU in 2016. Brexiteers may be regarded as (mis)appropriating the language of self-determination in their appeals of withdrawal, such as the former Brexit Minister Lord Frost : “we believe sovereignty is meaningful and what it enables us to do is to set our rules for our own benefit”.

Douglas-Scott’s attitude towards Brexit as a misguided endeavour predicated upon an outdated conception of parliamentary sovereignty and the misdirection of unscrupulous politicians is clear throughout the book and in the discussion of Britain and Europe in chapter 5. If she had been willing to compare whether any parallels could be drawn between the desire for autonomy and self-determination of Scottish, Irish, and Indian nationalists, and the North American founding fathers, and the drive to “take back control” in the United Kingdom, then the book could have charted uncomfortable yet novel territory. Scholars are confronting the role of colonialism in the formation of the European project. Ultimately, such analysis could have strengthened Douglas-Scott’s conclusions on Brexit, by emphasising exactly why participating in a supranational constitutional order through dual-representation by ministers and directly elected Members of the European Parliament can and should be distinguished from the yoke of imperial colonialism.

To share or not to share – that is the (sovereignty) question

Part II extracts five key themes: sovereignty (chapter 6); unions and disunions (chapter 7); federalism, devolution, and differentiation (chapter 8); democracy and referendums (chapter 9); and human rights (chapter 10). These chapters move the monograph away from historical summary towards theoretical and intellectual investigation. The author’s voice is more prominent in these chapters as she asserts her own views on these key topics of constitutionalism. The comprehensive nature of the case-studies in Part I, however, means that there is inevitably repetition of information as the author advances examples of how these themes have manifested themselves in the United Kingdom’s constitutional story.

The choice to engage in the abstract in the second half of the book also means that summary and elementary information, such as an explanation of deliberative democracy, comes just as the argument should be building towards a crescendo. Sovereignty remains the key theme running throughout the author’s appraisal of the dynamics behind Brexit. Douglas-Scott’s own position may be regarded as technocratic or managerialist in a manner that fits the self-perception of the EU: “Sharing sovereignty, through treaties and agreements, through combination and pooling influence, can advance the interests and prosperity of States in ways that could not be achieved if they acted alone. Here, we might say that sovereignty is being used as a resource , which can be limited so it can be best used”. She recognises herself that this “does not please those who see sovereignty in monistic and illimitable ways, but nor does it amount to the extinction of sovereignty”.

Yet perhaps in her focus on the follies of the traditional concept of parliamentary sovereignty Douglas-Scott misses the emotional appeal that sovereignty can have for individuals who have sought to liberate themselves from imposed forms of union, and who now agitate for greater autonomy within the Union State of the United Kingdom. She herself recognises the role of “hearts and minds” in sustaining union: “emotional attachment to the Union, and a sense of identity with it, is fundamental to its continuance”. If the case-studies had engaged more robustly with the role of feeling, emotion, and narrative in the phenomenon of disunion then this may have helped to bolster the appeal of recommendations to address the current unsettlement within the United Kingdom’s constitution.

Douglas-Scott presents these prescriptions in the conclusion to the book. She forwards “options for the UK Union from comparative law and history” including “federacy” with its accommodation of larger and smaller constituent units, and a reimagination of the Dominion model with its grant of “constitutional autonomy and equality…without any declaration of… independent status” through an “Autonomy Statute for the UK’s devolved nations today”. The rich and detailed historical and comparative analysis of union and disunion in British constitutional history bears fruit in this conclusion. These options for constitutional resettlement could provide important models for policy discussion of the future governance of the Union . The argument leading up to these conclusions could have been presented in a leaner manner, and greater intellectual novelty may have been provided by engagement with alternative positions. However, the practical salience of these conclusions, and the detailed analysis lying behind them, remain undiminished.