A Brexit behind closed doors means a written constitution is more urgent than ever

Published on October 16, 2017

Brexit is widening the fault lines in the UK’s political settlement, which is built on the uneasy foundations of an unwritten constitution. What’s becoming increasingly obvious is that without our rights being enshrined, clear constraints on executive power, and a properly defined relationship between people and the government, ‘we the people’ are vulnerable to the whims of the government of the day.

Since the UK joined the European Union in 1972, it has been responsible for setting many standards for our rights and regulations, as well as providing an additional recourse to justice in the form of the European Court of Justice. Unlock Democracy is a campaign focussed on democratic reform and political process, which is why we didn’t take a position on the referendum. Our concern is that after Brexit, without a codified constitution our rights could be rewritten in accordance with the whims of the government of the day, with a simple majority vote of one.

We would like to think that the government would fully involve parliament in shaping what the future of our country looks like, what rights people can claim, and what rules and regulations should govern our society. In a parliamentary democracy, where MPs are the elected representatives and voice of the people, this is a minimal expectation.

But to date, the government’s actions show that it does not see Brexit as an opportunity to engage the people of the UK in a deliberative and inclusive process to shape a positive future for the country. Rather, at every turn it has sought to concentrate more power in its own hands, at the expense of democratic scrutiny, transparency and accountability.

Since Theresa May took the helm of the Conservative party the government’s actions, and its plans for Brexit, have been shrouded in secrecy. Those calling for greater transparency have been labelled everything from ‘saboteurs’ to ‘enemies of the people’. In her Lancaster House speech for example, May dismissed the media’s scrutiny of Brexit as simply "filling column inches." and stated that it was “in the national interest” for it to be her decision alone what the public were allowed to know about the process.

The trivialisation of media scrutiny of the government marked an alarming reconfiguration of the relationship between parliament and the people. The more recent Florence Speech provided further insight into how far away the government's rhetoric on democracy is from reality. May's framing of sovereignty and taking back control jarred with what is happening domestically. She told an audience that in voting leave the British public “chose the power of domestic democratic control over pooling that control, strengthening the role of the UK Parliament and the devolved Scottish Parliament, Welsh and Northern Ireland Assemblies in deciding our laws."

Far from feeling the effects of taking “domestic democratic control”, the Scottish and Welsh governments have been making a lot of noise about feeling excluded from the process altogether. Nicola Sturgeon and Carwyn Jones labelled the EU (Withdrawal) Bill - the first major piece of Brexit legislation - a "naked power grab". They have also recommended that their respective legislatures withhold the consent being sought by Westminster for the bill. With no codified relationship between Westminster and the devolved legislatures, the autonomy of these representative bodies remains the gift of Westminster.

May also spoke of Brexit being a "defining moment in the history of our nation" where we "change not just our relationship with Europe, but also the way we do things at home." If this is to be anything but empty rhetoric, the government must take concrete steps towards involving the people, parliament, and devolved legislatures in the decisions that will shape the future of the UK.

The government took its battle to make unilateral decisions without parliament all the way to the Supreme Court. In the Article 50 court case, it argued it had the right to use the royal prerogative to take the UK out of the EU. This exemplifies how lacking a codified constitution leaves our democracy, and many of the important mechanisms that underpin it, open to the interpretation by the government of the day. Our unwritten constitutional conventions, where they exist at all, have more often than not been a source of confusion rather than clarity. As we move through the process of leaving the EU, these fundamental constitutional questions will only become more pressing, even critical to the survival of the Union.

Principles of deliberation and parliamentary democracy are being cast aside. Now, a written constitution would not necessarily solve all of these problems; it is, after all, for the people - as part of a constitutional convention - to decide what would be included in a constitution. The point is, ‘we the people’ don’t have rights that are safeguarded from being undermined by a majority vote of one. Without a codification of the rights and values we as a society believe should be consistently held, we will always be subject to the whims of the government of the day.

The government is avoiding the public, shutting down debate, and ducking accountability wherever possible. If Brexit is about taking back control, then this cannot mean a transfer of power to the executive and a concentration of power in the hands of a few. If Brexit was about anything, it was a rejection of the political status quo. A scrutiny shy government and a parliament that is deprived of its power is bad news for our democracy, and only a written constitution can protect our shared values from the whims of the government of the day.

This blog article is by Alexandra Runswick, Director of Unlock Democracy, the campaign for democratic and constitutional reform. If you have any specific queries in relation to the article, please contact Unlock Democracy. 

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