The union of Scotland and England was the founding act of the UK in 1707, and consensually agreed between two sovereign parties. Scotland was never a colony of England and post-union retained considerable autonomy, including its distinct and separate legal and education systems and Church. As a result of the 1707 union, the UK Parliament (which was not simply the English Parliament enlarged) came into being. The doctrine of unlimited parliamentary sovereignty is not accepted by everyone in Scotland, where there exists an alternative Scottish tradition of popular sovereignty, and the belief that Scotland’s place in the UK Union rests on its consent. Since devolution in 1998, Scotland has developed some progressive constitutional forms, as well as more pro-European inclinations that challenge the unitary constitutional approaches of London. Brexit, however, has placed the UK union under strain, and there have been demands for a second Scottish Independence referendum. Surprisingly, despite the threat of Scottish independence, there has been little debate about what the ‘Union’ or ‘Britain’ is or should be.

This book provides a critical analysis of Brexit, placing it in the broader context of the historical development of the British Constitution and earlier disputes as to the meaning of statehood, sovereignty, and territorial boundaries. Some of the greatest challenges posed by the UK’s withdrawal from the EU are those it places on the British Constitution, which is already ‘unsettled’ and under strain. This book investigates this impact, but also uniquely locates Brexit in the broader context of historically significant British ‘acts of union or disunion’ – such as the loss of former US colonies and British Empire, and the place of Scotland and Ireland in the Union. These precedents help us understand how a British constitutional identity has been shaped or dismantled by legal concepts of union or sovereignty.

Sovereignty is obviously key in the Brexit context, and in many ways lies at the core of this book’s argument – a main part of which is that Britain has never been able to justify its assertion of unlimited parliamentary sovereignty. This book endorses the view that the doctrine of parliamentary sovereignty no longer carries the weight that Dicey accorded it, nor should it. Indeed Dicey was himself inconsistent, and, in his energetic opposition to Irish Home Rule, was prepared to depart from the application of parliamentary sovereignty. And in any case, Dicey’s theory is not watertight historically, and Westminster sovereignty is also territorially challenged. However, it might be argued that EU membership posed the greatest challenge to UK parliamentary sovereignty. However, Britain never lost its external sovereignty (i.e. what is frequently described as ‘national’ sovereignty, whereby a country is sovereign and recognized as independent by the international community) as Britain voluntarily joined the EEC, and also voluntarily exited, with Brexit. But Parliament did constrain its own sovereignty through the ECA 1972, and although that Act has now been repealed by Brexit, there is no reason why Parliament should not place further constraints on its own sovereignty in future.

This book provides a critical analysis of Brexit, placing it in the broader context of the historical development of the British Constitution and earlier disputes as to the meaning of statehood, sovereignty, and territorial boundaries. Some of the greatest challenges posed by the UK’s withdrawal from the EU are those it places on the British Constitution, which is already ‘unsettled’ and under strain. This book investigates this impact, but also uniquely locates Brexit in the broader context of historically significant British ‘acts of union or disunion’ – such as the loss of former US colonies and British Empire, and the place of Scotland and Ireland in the Union. These precedents help us understand how a British constitutional identity has been shaped or dismantled by legal concepts of union or sovereignty.

Lord Bingham noted that the Common Law was not an isolated island, and that English law had always shown a receptiveness to ‘the experience and learning of others’. Brexit might appear to have set back that optimism. However, British relations with continental Europe are deep and historical. British lawyers played a very strong role in the creation and founding of the European Convention on Human Rights, so ECHR rights (now incorporated in the Human Rights Act) are not alien, foreign devices. Furthermore, Britain was not forced into EEC membership, but joined voluntarily, persisting after its first two applications were rejected by General de Gaulle, because it perceived that it would be socially and economically enriched by such membership – a perception that turned out to be accurate. EU membership also provided an external support system for UK devolution, facilitating common approaches within the UK and conciliation between the UK and Ireland. The EU and ECHR provided external guarantees and entrenchment of human rights, many of which are now at risk post-Brexit.

Human rights have had a fragile status in Britain, given the overpowering doctrine of parliamentary sovereignty, which has enabled a parliamentary majority to achieve any policy in the absence of entrenched constitutional protections. Plans to repeal the 1998 Human Rights Act are evidence of this. Dicey wrote that parliamentary sovereignty was tempered by the rule of law in the UK, but it is unclear from his work how the rule of law could operate to override the will of a despotic parliamentary majority. Brexit adds to this precarity, by removing EU human rights protection from UK law (which had something close to an entrenched status, while the UK was an EU member). This calculated deletion of fundamental rights – involved in the deliberate exclusion of the EU Charter of Fundamental Rights from UK law post-Brexit – is almost unparalleled in the Western world (although perhaps the US Supreme Court’s Dobbs decision, which removed the protected status of the right to abortion from US constitutional law, comes close, at least for that right).

This chapter explores the Manichean narrative between political and legal constitutionalism. Examining the rival arguments of Jeremy Waldron and Ronald Dworkin, this chapter argues that we need to move beyond Manicheanism in order to capture the multi-institutional modes of rights protection in contemporary constitutional democracies. It argues that both Dworkin and Waldron succumb to the nirvana fallacy, a fallacy we need to shake off if we are to devise realistic accounts of how the key institutions act, counteract, and interact in a constitutional democracy. The chapter also puts pressure on the notorious ’counter-majoritarian difficulty’, arguing that we need counter-majoritarian checks, not only in the name of rights, but in the name of democracy as well. This chapter defends the idea of ’mediated majoritarianism’. Finally, it turns to the ongoing schism between political versus legal constitutionalism in UK public law, arguing that it suffers from similar flaws to the broader Manichean narrative. Instead of a zero-sum game between courts and legislatures, the branches of government can interact in mutually respectful and supportive ways.

This chapter argues that protecting rights in a constitutional democracy is a collaborative enterprise between all three branches of government, where each branch has a distinct but complementary role to play, whilst working together with the other branches in the constitutional scheme. At the heart of the chapter is a collaborative conception of the separation of powers, where the branches are situated within a heterarchical relationship of reciprocity, recognition, and respect. Grounded in the key values of comity, collaboration, and conflict management, this chapter sketches out the contours of the collaborative constitution. Instead of a conflictual dynamic of ’constitutional showdowns’, the chapter marks out a preference for ’constitutional slowdowns’. Whilst accepting the inevitability and, indeed, the legitimacy of constitutional counterbalancing and tension between the branches of government, the collaborative constitution attends to the collaborative norms which frame and shape the interaction between the branches in a well-functioning constitutional order.

This chapter explores the role of the Executive in the collaborative constitutional scheme, examining the modes and mechanisms of Executive engagement with rights under the UK Human Rights Act 1998. Emphasising that the role of the Executive is to initiate and drive forward new policy, this chapter puts the Executive in the driving seat of the collaborative constitution. However, it also uncovers a ’plural Executive’, highlighting the multiplicity of constitutional actors working within the Executive branch. Therefore, the chapter foregrounds the importance of an ’internal separation of powers’ within the Executive branch, highlighting the dialectical tension between differently oriented actors. Following a close analysis of Executive rights vetting under the HRA, the chapter concludes with an argument that we should imagine an Executive constitutionalism. At the very least, this chapter calls on constitutional scholars not to exclude the Executive in their pictures of constitutional government.

This chapter examines the idea of ’dialogue’ as a way of conceptualising the relationship between the courts and the legislature in a system of ’weak-form review’. Tracking the trajectory of dialogue theory in Canada and in the UK, this chapter outlines the promise and perils of dialogue. By highlighting the iterative and interactive dynamic between courts and legislatures when seeking to uphold rights, the metaphor of dialogue held out the promise that it could transcend the Manichean narrative. However, the chapter argues that the idea of dialogue overpromised and underdelivered. It failed to take us beyond the Manichean narrative and ultimately provided a misleading and distorted understanding of the constitutional relationships between the branches of government in a constitutional democracy.

This chapter provides an introduction and overview to the idea of the collaborative constitution, sketching out the central claim that protecting rights is a collaborative enterprise between all three branches of government, where they each play distinct roles, whilst working together in constitutional partnership. This Introduction also clarifies the constitutional methodology employed in the book, namely, a methodology which connects theory with practice, and analyses the UK constitutional order in comparative context.