Introduction
The decision of the United Kingdom to leave the European Union, commonly referred to as Brexit, following the referendum on 23 June 2016, marked a significant turning point in the nation’s constitutional framework. The process of exiting the EU, finalised on 31 January 2020, raised complex questions about sovereignty, the rule of law, and the balance of power within the UK’s unwritten constitution. This essay explores the impact of Brexit on the UK constitution, focusing on the reassertion of parliamentary sovereignty, the challenges posed to devolution, and the evolving role of the judiciary. By examining these key areas, the essay aims to provide a broad understanding of how Brexit has reshaped constitutional principles, while acknowledging the limitations of current analyses due to the ongoing nature of post-Brexit developments.
Reassertion of Parliamentary Sovereignty
One of the most significant impacts of Brexit on the UK constitution is the reassertion of parliamentary sovereignty. The doctrine, often described as the cornerstone of the UK constitution, holds that Parliament is the supreme legal authority, capable of making or unmaking any law (Dicey, 1885). Prior to Brexit, EU membership required the UK to incorporate EU law into domestic legislation under the European Communities Act 1972, which arguably limited parliamentary sovereignty by prioritising EU law over conflicting national statutes. The repeal of this Act through the European Union (Withdrawal) Act 2018 marked a symbolic and practical return of legislative supremacy to Westminster. However, while this reassertion is celebrated by some as a restoration of national autonomy, others argue that complexities remain, particularly with the retention of certain EU-derived laws as ‘retained EU law’ (Elliott, 2019). This raises questions about the true extent of regained sovereignty, as Parliament must now navigate a hybrid legal framework, blending domestic and pre-existing EU influences.
Challenges to Devolution
Brexit has also posed significant challenges to the UK’s devolution arrangements, which form a critical part of its constitutional structure. The devolved governments in Scotland, Wales, and Northern Ireland expressed concerns over the repatriation of powers previously held by the EU, many of which fall within devolved competences such as agriculture and fisheries. The European Union (Withdrawal) Act 2018 initially centralised these powers at Westminster, leading to tensions with devolved administrations, particularly in Scotland, where the Scottish Parliament withheld legislative consent (Douglas-Scott, 2020). Furthermore, the Northern Ireland Protocol, part of the Brexit Withdrawal Agreement, created a unique constitutional arrangement by maintaining alignment with certain EU rules to avoid a hard border with Ireland. This has arguably strained the delicate balance of the Good Friday Agreement, illustrating how Brexit complicates the UK’s territorial constitution. These developments highlight a key limitation: the unresolved tension between centralisation and devolution post-Brexit.
The Role of the Judiciary
The judiciary’s role in constitutional matters has also evolved due to Brexit, as courts have been thrust into politically charged disputes. The landmark case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 underscored the judiciary’s role in upholding constitutional principles, ruling that parliamentary approval was required to trigger Article 50 of the Treaty on European Union (Barber, 2017). This decision reaffirmed the importance of parliamentary sovereignty while demonstrating the courts’ willingness to intervene in matters of constitutional significance. However, such judicial involvement has sparked debates about the politicisation of the judiciary, with critics arguing that it risks undermining public confidence in legal impartiality. This evolving role illustrates both the adaptability of the UK constitution and the potential for conflict in its application.
Conclusion
In conclusion, Brexit has profoundly impacted the UK constitution by reasserting parliamentary sovereignty, challenging devolution arrangements, and reshaping the judiciary’s role. The return of legislative supremacy, while symbolically significant, remains complex due to retained EU influences. Devolution faces ongoing tensions, particularly in Scotland and Northern Ireland, where constitutional balances are strained. Meanwhile, judicial interventions highlight the dynamic nature of constitutional interpretation. These shifts demonstrate the adaptability of the UK’s unwritten constitution but also reveal limitations in predicting long-term outcomes as post-Brexit policies continue to unfold. Indeed, the full implications of Brexit on the UK constitution may only become clear in the coming decades, necessitating further academic scrutiny and debate.
References
- Barber, N.W. (2017) ‘The Aftermath of Miller: Parliamentary Sovereignty and the Prorogation Case’, Public Law, pp. 1-15.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Douglas-Scott, S. (2020) ‘Brexit, Devolution and the Future of the UK Constitution’, European Constitutional Law Review, 16(1), pp. 23-45.
- Elliott, M. (2019) ‘Brexit and the Constitution: The Challenges of Sovereignty’, King’s Law Journal, 30(2), pp. 189-203.
