Does Brexit illustrate the case for a written, codified Constitution?
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I’m Naz Khan, 23 years old, LL.M, UK citizen. The essay was for the annual essay competition hosted by the Honourable Society of the Middle Temple. As soon as I saw the question I knew I had to write this! I follow politics very closely and enjoyed studying constitutional law during my undergraduate studies. Therefore the opportunity to write an essay on the impact of Brexit on the UK constitution was really a no-brainer for me. In terms of knowledge, I didn't really learn anything you. Parliamentary Sovereignty/rule of law/Separation of Powers are all concepts every law student studies at undergraduate level. However, being able to structure an essay and write in a coherent manner are things that even lawyers in practice struggle with. Writing this essay was therefore a chance to develop these skills further. The only thing certain with Brexit is uncertainty. Since the referendum we have seen unprecedented decisions that have really tested the fabric of the UK's unwritten constitution. The case for a codified constitution in the UK will linger on for years to come, in my view reforms are needed to strengthen the constitutional framework of the UK.
-Naz Khan, Author
Introduction
On the 23rd of June 2016, the United Kingdom (the UK), voted in what was called by then Prime Minister David Cameron, “a once in a lifetime opportunity” referendum, over the country’s continued membership of the European Union (EU). The referendum ballot asked only whether the UK should “Remain a Member of the European Union” or “Leave the European Union” and by the early hours of the morning of the 24th June 2016, it was clear that leave had won by a narrow majority of 51.9% of the 33 million who turned out to vote in favour of leaving to 48.1% who wished to remain.
Upon learning the outcome of the referendum, Prime Minister Cameron resigned, and the ruling Conservative party elected Theresa May as successor, tasked with the role of withdrawing the UK from the EU. Immediately, the new Prime Minister and her Government ran into legal, political, and constitutional difficulties in seeking to utilise the Royal Prerogative (the residual powers of the Crown which now reside in Ministers of State) to “trigger” Article 50 of the Treaty on European Union (TEU), which would, under the treaty, begin the countdown to the UK’s withdrawal from the EU after a two-year period in which negotiations as to the terms of the UK’s withdrawal could be carried out. The subsequent legal challenge to this decision, the case of R (Miller) v Secretary of State for Exiting the European Union, has arguably crystallised some of the long-standing questions that have raged over the extent and limits of the UK’s constitutional foundations. The commonly accepted view of the UK’s constitutional settlement is that whilst the country does in fact have a constitution, it is one which is unwritten, and therefore fundamentally uncertain in many respects.
This article will consider whether the events which have followed in the wake of the EU referendum have now strengthened, or even weakened, the case for the adoption of a written, codified, constitution in the UK.
