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Brexit: a challenge for the UK constitution, of the UK constitution?

Abstract

The United Kingdom 2016 referendum on membership of the European Union – challenges of pursuing the decision to withdraw – challenges for the UK constitution in commencing, executing, concluding, and legitimising EU withdrawal – domestic constitutional requirements for triggering Article 50 TEU – roles of UK government, UK Parliament, and devolved institutions in Brexit – a second referendum or a national general election on withdrawal terms – exiting the EU as a challenge of the UK’s political constitution – Brexit as exposing limitations of the UK’s current constitutional arrangements and architecture – Brexit as an unprecedented event and the centrality of politics – constitutional factors contributing to the outcome of the referendum – concerns about sovereignty and the (im)possibility of a national response – potential implications of the referendum for the UK and for the EU

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Liverpool Law School, University of Liverpool. I am very grateful to the editors for comments on the initial text of this paper.

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1 See ‘PM-in-waiting Theresa May promises “a better Britain”’, BBC website, 11 July 2016, <www.bbc.co.uk/news/uk-politics-36768148>, visited 1 October 2016.

2 See e.g. ForsterA., Euroscepticism in Contemporary British Politics: Opposition to Europe in the British Conservative and Labour Parties since 1945 (Routledge 2002).

3 See ‘Archive: How the Guardian reported the 1975 EEC referendum’, The Guardian, 5 June 2015, <www.theguardian.com/politics/from-the-archive-blog/2015/jun/05/referendum-eec-europe-1975>, visited 1 October 2016.

4 See ‘David Cameron to tell voters: no vote on Lisbon Treaty’, The Telegraph, 2 November 2009, <www.telegraph.co.uk/news/politics/6488240/David-Cameron-to-tell-voters-no-vote-on-Lisbon-Treaty.html>, visited 1 October 2016.

5 See ‘David Cameron and Nick Clegg pledge ‘united’ coalition’, BBC website, 12 May 2010, <news.bbc.co.uk/1/hi/uk_politics/election_2010/8676607.stm>, visited 1 October 2016.

6 See e.g. CraigP., ‘The European Union Act 2011: Locks, Limits and Legality’, 48 CMLRev (2011) p. 1915 ; GordonM. and DouganM., ‘The United Kingdom’s European Union Act 2011: “Who Won the Bloody War Anyway?”’, 37 ELRev (2012) p. 3 ; MurkensJ.E.K., ‘ The European Union Act 2011: a failed statute ’, 3 Tijdschrift voor Constitutioneel Recht (2012) p. 396 ; PeersS., ‘European integration and the European Union Act 2011: an irresistible force meets an immovable object?’, Public Law (2013) p. 119 .

7 See generally FordR. and GoodwinM., Revolt on the Right: Explaining Support for the Radical Right in Britain (Routledge 2014).

8 See ‘EU speech at Bloomberg’, 23 January 2013, <www.gov.uk/government/speeches/eu-speech-at-bloomberg>, visited 1 October 2016.

9 See The Conservative Party Manifesto (2015) p. 72-73, <www.conservatives.com/manifesto>, visited 1 October 2016.

10 See The Labour Party Manifesto (2015) p. 76-77, <www.labour.org.uk/page/-/BritainCanBeBetter-TheLabourPartyManifesto2015.pdf>, visited 1 October 2016.

11 The incumbent Prime Minister defied expectations with David Cameron’s Conservative Party increasing both its share of the vote and number of seats in the House of Commons compared with the 2010 election; see ‘The 2015 General Election: A Voting System in Crisis’, Electoral Reform Society (2015) p. 8, <www.electoral-reform.org.uk/sites/default/files/2015%20General%20Election%20Report%20web.pdf>, visited 1 October 2016. Such was the level of surprise in the final results, an independent inquiry into the performance of the polls was ordered by the British Polling Council; see Report of the Inquiry into the 2015 British general election polls, 31 March 2016.

12 See e.g. ‘Nick Clegg risks party split over vote on EU, rivals warn’, The Guardian, 21 March 2015, <www.theguardian.com/politics/2015/mar/21/nick-clegg-liberal-democrats-party-split-eu-referendum>, visited 1 October 2016.

13 See ‘Election results: Conservatives win majority’, BBC website, 8 May 2015, <www.bbc.co.uk/news/election-2015-32633099>, visited 1 October 2016.

14 European Union Referendum Act 2015, s. 1.

15 See ‘PM’s Letter to President of the European Council Donald Tusk’, 10 November 2015, <www.gov.uk/government/publications/eu-reform-pms-letter-to-president-of-the-european-council-donald-tusk>, visited 1 October 2016.

16 See e.g. DouganM., ‘The draft deal on UK membership of the EU’, The Liverpool View, 3 February 2016, <news.liverpool.ac.uk/2016/02/03/the-liverpool-view-the-draft-deal-on-uk-membership-of-the-eu/>, visited 1 October 2016.

17 See ‘David Cameron launches Tory campaign to stay in the EU’, The Guardian, 24 February 2016, <www.theguardian.com/politics/2016/feb/24/david-cameron-launches-tory-campaign-to-stay-in-the-eu>, visited 1 October 2016.

18 See ‘EU vote: where the cabinet and other MPs stand’, BBC website, 22 June 2016, <www.bbc.co.uk/news/uk-politics-eu-referendum-35616946>, visited 1 October 2016.

19 See Review of the Balance of Competences, 18 December 2014, <www.gov.uk/guidance/review-of-the-balance-of-competences>, visited 1 October 2016.

20 See e.g. ‘FactCheck: Is Britain sending £350m a week to Brussels?’, Channel 4 News, 9 October 2015, <blogs.channel4.com/factcheck/factcheck-britain-sending-350m-week-brussels/21733>, visited 1 October 2016.

21 See e.g. ‘EU referendum: a timeline of Remain’s ‘Project Fear’ campaign’, The Telegraph, 20 June 2016, <www.telegraph.co.uk/news/2016/06/20/eu-referendum-a-timeline-of-remains-project-fear-campaign/>, visited 1 October 2016.

22 See GordonM., Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Hart 2015) p. 264-265 .

23 Parliamentary Voting System and Constituencies Act 2011, ss. 8-9.

24 See e.g. ‘Leave campaign rows back on key immigration and NHS pledges’, The Guardian, 25 June 2016, <www.theguardian.com/politics/2016/jun/25/leave-campaign-rows-back-key-pledges-immigration-nhs-spending>, visited 1 October 2016.

25 See e.g. TierneyS., ‘Was the Brexit Referendum Democratic?’, UK Constitutional Law Association, 25 July 2016, <ukconstitutionallaw.org/2016/07/25/stephen-tierney-was-the-brexit-referendum-democratic/>, visited 1 October 2016.

26 Art. 50(2) TEU.

27 Art. 50(3) TEU.

28 See e.g. the discussion in GrantC., ‘Six Brexit Deals that Theresa May Must Strike’, Centre for European Reform, 28 July 2016, <www.cer.org.uk/in-the-press/six-brexit-deals-theresa-may-must-strike>, visited 1 October 2016.

29 Art. 50(1) TEU.

30 See e.g. ‘Brexit: Theresa May says talks won’t start in 2016’, BBC website, 20 July 2016, <www.bbc.co.uk/news/uk-politics-36841066>, visited 1 October 2016.

31 See e.g. ‘Theresa May will trigger Brexit negotiations without Commons vote’, The Telegraph, 27 August 2016, <www.telegraph.co.uk/news/2016/08/26/theresa-may-will-trigger-brexit-negotiations-without-commons-vot/>, visited 31 August 2016.

32 BarberN. et al., ‘Pulling the Article 50 “Trigger”: Parliament’s Indispensable Role’, UK Constitutional Law Association, 27 June 2016, <ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/>, visited 1 October 2016.

33 ArvindT.T. et al., ‘Article 50 and the European Union Act 2011: Why Parliamentary Consent Is Still Necessary’, UK Constitutional Law Association, 1 July 2016, <ukconstitutionallaw.org/2016/07/01/t-t-arvind-richard-kirkham-and-lindsay-stirtonarticle-50-and-the-european-union-act-2011-why-parliamentary-consent-is-still-necessary/>, visited 1 October 2016.

34 And where an agreement is concluded successfully, the Treaties will also continue to apply to the UK during the period before entry into force. In contrast, where an agreement is not concluded, and the negotiating period is not extended, the Treaties will cease to apply to the UK after two years from the notification of intention to withdraw.

35 See e.g. GordonM., ‘The European Union Act 2011’, UK Constitutional Law Association, 12 January 2012, <ukconstitutionallaw.org/2012/01/12/mike-gordon-the-european-union-act-2011/>, visited 1 October 2016.

36 Wheeler v Office of the Prime Minister [2014] EWHC 3815 (Admin).

37 TuckerA., ‘Triggering Brexit: A Decision for the Government, but under Parliamentary Scrutiny’, UK Constitutional Law Association, 29 June 2016, <ukconstitutionallaw.org/2016/06/29/adam-tucker-triggering-brexit-a-decision-for-the-government-but-under-parliamentary-scrutiny/>, visited 1 October 2016.

38 Attorney General v De Keyser’s Royal Hotel [1920] A.C. 508.

39 BesselinkL., ‘Beyond Notification: How to Leave the European Union without Using Article 50 TEU’, UK Constitutional Law Association, 30 June 2016, <ukconstitutionallaw.org/2016/06/30/leonard-besselink-beyond-notification-how-to-leave-the-european-union-without-using-article-50-teu/>, visited 1 October 2016.

40 ElliottM., ‘Brexit: On why, as a matter of law, triggering Article 50 does not require Parliament to legislate’, Public Law for Everyone, 30 June 2016, <publiclawforeveryone.com/2016/06/30/brexit-on-why-as-a-matter-of-law-triggering-article-50-does-not-require-parliament-to-legislate/>, visited 1 October 2016.

41 See e.g. RobertsonG., ‘How to stop Brexit: get your MP to vote it down’, The Guardian, 27 June 2016, <www.theguardian.com/commentisfree/2016/jun/27/stop-brexit-mp-vote-referendum-members-parliament-act-europe>, visited 1 October 2016.

42 A full judicial review hearing is now scheduled for October 2016, and many anticipate that the dispute will ultimately proceed to the UK Supreme Court; see ‘Theresa May does not intend to trigger article 50 this year, court told’, The Guardian, 19 July 2016, <www.theguardian.com/politics/2016/jul/19/government-awaits-first-legal-opposition-to-brexit-in-high-court>, visited 1 October 2016.

43 An exception may be the report of the House of Lords Select Committee on the Constitution, The invoking of Article 50 (HL Paper 44, 13 September 2016). The Lords’ Constitution Committee argues it would be ‘constitutionally inappropriate’ for the government to act without seeking parliamentary approval, either in the form of a resolution or legislation, at [24]. With legal action pending, the committee does not offer a view on the merits of the competing legal arguments concerning the triggering of Art. 50, at [16]. But set explicitly against this backdrop of legal uncertainty, the arguments articulated from the perspective of constitutional propriety seem broad and even diluted in force: in particular, at [45], the committee does not offer a definitive view as to whether legislation or a resolution would be the preferable approval mechanism, leaving a lack of a clear standard against which the government can be (politically) challenged.

44 See e.g. R v Secretary of State for Foreign and Commonwealth Affairs, ex p. Lord Rees-Mogg [1994] Q.B. 552; McWhirter v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384; R (on the application of Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWHC 1122 (Admin); R (on the application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin); Wheeler v Office of the Prime Minister [2014] EWHC 3815 (Admin).

45 See e.g. O’CinneideC., ‘Why Parliamentary Approval for the Triggering of Article 50 TEU Should Be Required as a Matter of Constitutional Principle’, UK Constitutional Law Association, 7 July 2016, <ukconstitutionallaw.org/2016/07/07/colm-ocinneide-why-parliamentary-approval-for-the-triggering-of-article-50-teu-should-be-required-as-a-matter-of-constitutional-principle/>, visited 17 October 2016.

46 See <www.efta.int/>, visited 1 October 2016.

47 Agreement on the European Economic Area (OJ No. L 1, 3.1.1994, p. 3).

48 See e.g. JudgeLord, ‘Ceding Power to the Executive; the Resurrection of Henry VIII’, Lecture at King’s College London, 12 April 2016, <www.kcl.ac.uk/law/newsevents/newsrecords/2015-16/Ceding-Power-to-the-Executive---Lord-Judge---130416.pdf>, visited 1 October 2016.

50 See ‘Government aces worldwide hunt for trade negotiators, experts warn’, The Telegraph, 3 July 2016, <www.telegraph.co.uk/business/2016/07/03/government-faces-worldwide-hunt-for-trade-negotiators-experts-wa/>, visited 1 October 2016.

51 See ‘Theresa May takes charge of Brexit, economy and social reform committees’, The Guardian, 19 July 2016, <www.theguardian.com/politics/2016/jul/19/theresa-may-takes-charge-of-brexit-economy-and-social-reform-committees>, visited 1 October 2016.

52 See e.g. ‘Boris Johnson is foreign secretary: the world reacts’, BBC website, 14 July 2016, <www.bbc.co.uk/news/world-36790977>; ‘Boris Johnson, Liam Fox and David Davis meet to “clear the air”’, The Telegraph, 25 August 2016, <www.telegraph.co.uk/news/2016/08/25/boris-johnson-liam-fox-and-david-davis-meet-to-clear-the-air-aft/>, visited 1 October 2016.

53 On the understated effectiveness of parliamentary scrutiny, see e.g. FlindersM. and KelsoA., ‘Mind the Gap: Political Analysis, Public Expectations and the Parliamentary Decline Thesis’, 13 British Journal of Politics and International Relations (2011) p. 249 ; RussellM. and CowleyP., ‘The Policy Power of the Westminster Parliament: The “Parliamentary State” and the Empirical Evidence’, 29 Governance (2016) p. 121 .

54 Inquiries into the process of parliamentary scrutiny accompanying Brexit have been announced by the House of Lords EU Select Committee and House of Commons European Scrutiny Committee: see House of Lords European Union Committee, Scrutinising Brexit: the role of Parliament (HL Paper 33, 22 July 2016); and ‘Brexit: European Scrutiny Committee response and consultation’, 8 July 2016, <www.parliament.uk/business/committees/committees-a-z/commons-select/european-scrutiny-committee/news-parliament-20151/scrutiny-consultation-launch-16-17/>, visited 1 October 2016.

55 See e.g. ‘May tells Sturgeon Holyrood will be ‘fully engaged’ in EU talks’, The Guardian, 15 July 2016, <www.theguardian.com/uk-news/2016/jul/15/theresa-may-nicola-sturgeon-holyrood-article-50-decision>, visited 1 October 2016.

56 See ‘EU Referendum Results’, BBC website, 24 June 2016, <www.bbc.co.uk/news/politics/eu_referendum/results>, visited 1 October 2016.

57 See e.g. ‘Nicola Sturgeon says she would consider 2017 Scottish referendum’, The Guardian, 15 July 2016, <www.theguardian.com/politics/2016/jul/17/nicola-sturgeon-would-consider-2017-scottish-independence-referendum-brexit>, visited 1 October 2016.

58 See e.g. ‘Holyrood 2016: SNP claims ‘historic’ win but no majority’, BBC website, 6 May 2016, <www.bbc.co.uk/news/election-2016-scotland-36205187>, visited 1 October 2016.

59 See e.g. ‘Northern Ireland secretary rejects Sinn Féin call for border poll’, The Guardian, 24 June 2016, <www.theguardian.com/uk-news/2016/jun/24/arlene-foster-northern-ireland-martin-mcguinness-border-poll-wont-happen>, visited 1 October .

60 See generally A. Tomkins, ‘Scotland’s Choice, Britain’s Future’ 130 LQR (2014) p. 215.

61 See e.g. CurticeJ., ‘Could Brexit Lead to IndyRef2?’, What Scotland Thinks, 13 June 2016, <blog.whatscotlandthinks.org/2016/06/could-brexit-lead-to-indyref2/>, visited 1 October 2016; CurticeJ., ‘Has Brexit Changed Voters’ Minds About Indyref2?’, What Scotland Thinks, 8 July 2016, <blog.whatscotlandthinks.org/2016/07/has-brexit-changed-voters-minds-about-indyref2/>, visited 1 October 2016.

62 Northern Ireland Act 1998, s. 1.

63 Northern Ireland Act 1998, Sch. 1, para. 2. That this condition is not fulfilled has been directly referred to by both the previous and the new Secretary of State for Northern Ireland in rejecting calls for such a referendum; see supra n. 59, and Hansard, HC Deb Vol. 613, col. 809 (20 July 2016).

64 See generally House of Lords Select Committee on the Constitution, Inter-governmental relations in the United Kingdom (HL Paper 146, 27 March 2015).

65 The desire to obtain a national consensus is one of four principles intended to guide the Brexit negotiations, set out by the Secretary of State for Exiting the EU, David Davis MP, in a statement to the House of Commons; see Hansard, HC Deb Vol. 614, cols. 38-41 (5 September 2016). The three other principles are to put the national interest first, while acting in good faith to European partners; to minimise uncertainty; and to put the sovereignty of Parliament beyond doubt.

66 A number of leading eurosceptic MPs believe that a quick Brexit is possible, and it is not difficult to imagine that impatience will eventually lead to such calls; see e.g. the reported comments of John Redwood MP in ‘Britain should deliver “full Brexit” soon, MP says’, Reuters, 27 July 2016, <uk.reuters.com/article/uk-britain-eu-redwood-idUKKCN1061Z3>, visited 1 October 2016.

67 The Working Time Regulations 1998, implementing Directive 93/104/EC and Directive 94/33/EC.

68 See Gordon, supra n. 22, p. 177-183.

69 Litster v Forth Dry Dock [1990] 1 A.C. 546.

70 There are also particular questions concerning the (non-)implementation of Directives as the process of Brexit unfolds; see C. Lienen, ‘Brexit and the Domestic Judiciary: Some Preliminary Thoughts on the Aftermath of Triggering Article 50’, UK Constitutional Law Association, 21 July 2016, <ukconstitutionallaw.org/2016/07/21/christina-lienen-brexit-and-the-domestic-judiciary-some-preliminary-thoughts-on-the-aftermath-of-triggering-article-50/>, visited 17 October 2016.

71 See Gordon, supra n. 22, p. 151-154.

72 See especially the speech of Lord Bridge in R v Secretary of State for Transport, ex p. Factortame (No 2) [1991] 1 A.C. 603, 658-659, emphasising that ‘whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary’.

73 See generally NicolD., EC Membership and the Judicialization of British Politics (Oxford University Press 2001) p. 114-116 .

74 Although it is not clear that the EFTA states want the UK as a member; see ‘Norway may block UK return to European Free Trade Association’, The Guardian, 9 August 2016, <www.theguardian.com/world/2016/aug/09/norway-may-block-uk-return-to-european-free-trade-association>, visited 1 October 2016.

75 Scotland Act 1998, s. 29(2)(d).

76 Northern Ireland Act 1998, s. 6(2)(d).

77 Government of Wales Act 2006, s. 108(6)(c).

78 Devolution: Memorandum of Understanding and Supplementary Agreements (October 2013) para. [14].

79 There is likely to be debate about the precise applicability of the convention here: on the one hand, it is arguable that the convention has in practice expanded in scope to cover change to the devolution Acts which alters the scope of devolved legislative or executive competence; see Douglas-ScottS., ‘Removing references to EU law from the devolution legislation would require the consent of the devolved assemblies’, The Constitution Unit, 13 June 2016, <constitution-unit.com/2016/06/13/removing-references-to-eu-law-from-the-devolution-legislation-would-invoke-the-sewel-convention/>, visited 31 August 2016. On the other hand, by Sch. 5, para. 7(1) to the 1998 Act, ‘international relations’, explicitly including those with ‘the European Union (and its institutions)’ are matters reserved to the UK, and therefore change to devolved governance in this area may potentially fall outside the scope of the convention, if it is viewed as merely consequential to the UK’s withdrawal from the EU.

80 Scotland Act 2016, s. 2, amending the Scotland Act 1998, s. 28. It is notable that this new statutory recognition of the convention does not make reference to the expanded scope discussed above – which includes alterations of devolved competence within the ambit of the convention – but instead only to the normal requirement of devolved consent where the UK Parliament legislates ‘with regard to devolved matters’.

81 See generally GordonM., ‘The UK’s Fundamental Constitutional Principle: Why the UK Parliament Is Still Sovereign and Why It Still Matters’, 26 King’s Law Journal (2015) p. 229 , at p. 242-247.

82 See e.g. ‘Owen Smith to offer referendum on Brexit deal if elected Labour leader’, The Guardian, 13 July 2016, <www.theguardian.com/politics/2016/jul/13/owen-smith-to-offer-referendum-on-brexit-deal-if-elected-labour-leader>, visited 1 October 2016.

83 See generally House of Lords Select Committee on the Constitution, Referendums in the United Kingdom (HL Paper 99, 7 April 2010).

84 There is also a problem of timing, given the constraints imposed by Art. 50 TEU: would it even be possible to negotiate a withdrawal agreement, obtain the consent of the European Parliament, and hold a referendum on the terms in the UK within two years from the notification of intention to withdraw? If not, the UK would require the support of all members of the European Council to extend the two-year period, to hold a national referendum at which it is possible the entire agreement could be rejected. I am grateful to the editors for this point.

85 See e.g. ‘There’s a loophole in Article 50 that lets Britain back into the EU whenever we want’, The Independent, 25 July 2016, <www.independent.co.uk/news/business/theres-a-loophole-in-article-50-that-lets-britain-back-into-the-eu-a7155166.html>, visited 1 October 2016; J-C Piris, ‘Article 50 is not forever and the UK could change its mind’, Financial Times, 1 September 2016, <www.ft.com/content/b9fc30c8-6edb-11e6-a0c9-1365ce54b926>, visited 13 September 2016.

86 See de BúrcaG., ‘If At First You Don’t Succeed: Vote, Vote Again: Analyzing the Second Referendum Phenomenom in EU Treaty Change’, 33 Fordham International Law Journal (2011) p. 1472 .

87 See e.g. JenningsW., ‘North v South, Young v Old – the New Political Faultlines’, The Guardian, 4 June 2016, <www.theguardian.com/politics/2016/jun/04/eu-referendum-campaign-polls-fault-lines-politics>, visited 1 October 2016.

88 See AmhlaighC. Mac, ‘10 (pro-EU) reasons to be cheerful after Brexit’, Verfassungsblog, 22 July 2016, <verfassungsblog.de/10-pro-eu-reasons-to-be-cheerful-after-brexit/>, visited 1 October 2016.

89 GordonM., ‘Brexit: The Constitutional Necessity of an Early General Election’, UK Constitutional Law Association, 6 July 2016, <ukconstitutionallaw.org/2016/07/06/mike-gordon-brexit-the-constitutional-necessity-of-an-early-general-election/>, visited 1 October 2016.

90 Fixed-term Parliaments Act 2011, s. 2. In accordance with these new statutory rules, an early general election can only be triggered in two ways: first, an early election can be held immediately if approved by a two-thirds majority in a vote of the House of Commons (by s. 2(1)(b)); second, if a government loses a vote by a simple majority on confidence motion in the House of Commons, an early election will be held unless a government (re)gains the confidence of the Commons within 14 days (by s. 2(3)). Prior to the 2011 Act, the Prime Minister could request the dissolution of Parliament and a general election from the monarch at any moment, subject to a statutory rule that the maximum duration of a Parliament was five years.

91 See e.g. ‘Theresa May rules out second EU referendum or vote on terms of Brexit’, The Independent, 30 August 2016, <www.independent.co.uk/news/uk/politics/brexit-eu-second-referendum-theresa-may-rules-out-general-election-a7216406.html>, visited 1 October 2016.

92 Considerations of timing due to Art. 50 TEU again present a challenge here: could a UK general election be held following the negotiation of a withdrawal agreement with EU partners, but within the two-year time period running from notification of intention to withdraw? This seems unlikely, and as such, the UK would be faced with the unenviable task of persuading all members of the European Council to extend the initial withdrawal negotiation period to allow an election to be held at which the agreement could be rejected (among other consequences which are difficult to anticipate). I am grateful to the editors for this point.

93 See e.g. ‘Parliament should have final decision on whether to leave EU, barristers say’, The Guardian, 11 July 2016, <www.theguardian.com/politics/2016/jul/11/brexit-parliament-should-make-ultimate-decision-on-whether-to-leave-eu-barristers-say>, visited 1 October 2016.

94 See e.g. the evidence gathered from the Citizens’ Assembly pilot projects in Sheffield and Southampton in 2015: M. Flinders et al., Democracy Matters: Lessons from the 2015 Citizens’ Assemblies on English Devolution, <citizensassembly.co.uk/wp-content/uploads/2016/04/Democracy-Matters-2015-Citizens-Assemblies-Report.pdf>, visited 1 October 2016. See also SmithG., Democratic Innovations: Designing Institutions for Citizen Participation (Cambridge University Press, 2009) ch. 3.

95 See <www.constitution.ie/>, visited 13 September 2016. For discussion of the alternative citizens’ assembly model used to evaluate and propose change to the voting system in British Columbia in 2004, see WarrenM.E. and PearseH. (eds.), Designing Deliberative Democracy: The British Columbia Citizens’ Assembly (Cambridge University Press, 2008).

96 See GriffithJ.A.G., ‘The Political Constitution’, 42 Modern Law Review (1979) p. 1 .

97 Contrary, for example, to the famous argument developed in RidleyF.F., ‘There is No British Constitution: A Dangerous Case of the Emperor’s Clothes’, 41 Parliamentary Affairs (1988) p. 340 .

98 See e.g. MastermanR. and MurrayC., ‘A House of Cards?’, UK Constitutional Law Association, 4 July 2016, <ukconstitutionallaw.org/2016/07/04/roger-masterman-and-colin-murray-a-house-of-cards/>, visited 1 October 2016.

99 See e.g. WalkerN., ‘Our Constitutional Unsettlement’, Public Law (2014) p. 529 .

100 See e.g. O’CinneideC., ‘The Human Rights Act and the Slow Transformation of the UK’s Political Constitution’, UCL Institute for Human Rights Working Paper Series, No. 1 (2012), <www.ucl.ac.uk/human-rights/research/working-papers/docs/colm-o_cinneide>, visited 1 October 2016.

101 See e.g. McLeanI., What’s Wrong with the British Constitution? (Oxford University Press 2010) p. 6 .

102 The Prime Minister has, however, asked her government ministers to identify specific ways in which their departments can made Brexit a success; see ‘Theresa May calls Brexit meeting amid reports of single market split’, The Guardian, 28 August 2016, <www.theguardian.com/politics/2016/aug/28/theresa-may-brexit-meeting-single-market>, visited 1 October 2016. Whether this attempt to exploit the benefits of positive thinking will itself succeed remains to be seen.

103 See e.g. ‘Nigel Farage’s anti-migrant poster reported to police’, The Guardian, 16 June 2016, <www.theguardian.com/politics/2016/jun/16/nigel-farage-defends-ukip-breaking-point-poster-queue-of-migrants>, visited 1 October 2016.

104 For data and analysis, see <lordashcroftpolls.com/2016/06/how-the-united-kingdom-voted-and-why/>, visited 1 October 2016.

105 See e.g. ‘Where’s the evidence that Jeremy Corbyn is to blame for Brexit?’, The Guardian, 4 July 2016, <www.theguardian.com/commentisfree/2016/jul/04/evidence-blame-jeremy-corbyn-brexit-remain-labour-conservative>, visited 1 October 2016.

106 See e.g. ‘It’s Not the Economy, Stupid’, Bloomberg Markets, 5 August 2016, <www.bloomberg.com/news/articles/2016-08-05/it-s-not-the-economy-stupid>, visited 1 October 2016.

107 See generally KelemenR.D., Eurolegalism: The Transformation of Law and Regulation in the European Union (Harvard University Press 2011).

108 See e.g. TomkinsA., Our Republican Constitution (Hart 2005) p. 5-6 .

109 See GordonM., ‘The UK’s Sovereignty Uncertainty’, UK Constitutional Law Association, 11 February 2016, <ukconstitutionallaw.org/2016/02/11/mike-gordon-the-uks-sovereignty-uncertainty/>, visited 1 October 2016.

110 See Gordon, supra n. 22, p. 21-32.

111 There is a parallel here with the investor-state dispute settlement mechanisms which have caused real concern as part of the public debate about the US-EU Transatlantic Trade and Investment Partnership. The UK government, of course, has not appeared distressed about a dilution of national sovereignty in this context.

112 See MasonP., ‘Corbyn delivered the Labour vote for remain – so let’s get behind him’, The Guardian, 26 June 2016, <www.theguardian.com/commentisfree/2016/jun/26/corbyn-leader-brexit-labour-rebels-sabotage>, visited 1 October 2016.

113 See e.g. JaklicK., Constitutional Pluralism in the EU (Oxford University Press 2014); HarveyC., ‘Complex Constitutionalism in a Pluralist UK’, UK Constitutional Law Association, 2 July 2016 <ukconstitutionallaw.org/2016/07/02/colin-harvey-complex-constitutionalism-in-a-pluralist-uk/>, visited 1 October 2016.

114 See LoughlinM., ‘The End of Avoidance’, 38 London Review of Books (2016) p. 12-13 .

* Liverpool Law School, University of Liverpool. I am very grateful to the editors for comments on the initial text of this paper.

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  • EISSN: 1744-5515
  • URL: /core/journals/european-constitutional-law-review
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