Brexit As A Revolutionary Constitutional Moment?

Benedict Douglas

is an Assistant Professor in Law at Durham University.

He writes “We can define our identity as individuals in three ways: through our choices, by the duties we owe, and by the community of which we are a member. Historically individuals have been implicitly defined within the British Constitution, law and society by their duties. Within the law are the legal duties of the private law of obligations and the constitutional duty to abide by the rule of law, and in the social hierarchy are duties of deference and noblesse oblige. This changed for the inhabitants of Scotland, Northern Ireland and Wales with the act of voting in the devolution referenda, which redefined their relationship with the state as one in which they had a fundamental choice over how to be governed. The Brexit referendum may result in a similar revolutionary change in the relationship between the individual and the state, and the individual’s sense of their own identity, for the English.

“The idea of the individual as a dutiful subject of the monarch was not formally altered until the British Nationality Act 1948. Nonetheless, the law continued to view individuals as defined in terms of the duties they owed. Under parliamentary sovereignty individuals had an absolute duty to obey all laws, and only had the residual liberty to do what the law did not prohibit. The fundamental basis of our constitution was not the capacity or right of the individual to choose how to be governed or how to live.

“The idea of an individual as possessing the autonomy and right to choose how to live was not introduced into our law until the creation of the Human Rights Act 1998. However, the Act did not in itself change the relationship between the individual and the state. This can be seen in the considerable criticism of it as giving insufficient place to individual duties and responsibilities, reflecting the idea of the individual as ultimately defined by their duties.

“The Human Rights Act however closely followed the devolution referenda in Scotland, Northern Ireland and Wales. The act of voting to choose how they were to be governed changed the relationship between individuals and the state in those nations. Individuals no longer saw themselves as people who must dutifully obey the state, rather they saw themselves as an individual with the capacity and right to choose how they were governed. The effect on individuals’ sense of their own identity and relationship with the state is implicit in the fact that the Human Rights Act was not unpopular in these three nations (Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (Ministry of Justice, 2012) para.88(v) and (vii)). This identity and relationship were further consolidated by the introduction of systems of proportional representation for electing the devolved assemblies, which made individuals’ choices of how to vote more effective.

“The Brexit referendum, 20 years later, has performed a similar function for the English. The act of voting in it changed how individuals see their relationship with the state: they now perceive state authority to derive from and be answerable to the choices of citizens, whereas previously the first past the post voting system had made state power appear detached from the votes of individuals.

“The lack of compromise of both leavers and remainers is evidence of this. Both the French and American revolutions led in different ways to ideas of absolute freedom of choice; the murderous French purges of the revolutionary era were a rejection of any limits upon individuals’ new-found freedom of choice; the absolute nature of the statement of many of the rights in the United States Bill of Rights similarly reflects an idea of an individual with unlimited choice over how to live. Once you have shifted from seeing yourself as defined by duty, to perceiving yourself as having a right to choose how to live and defined by those choices, any limit on your choices can strike at the heart of your new identity and relationship with the state.

“This idea of individuals now being defined by freedom of choice, combined with the habituation of our governing parties to dominating parliament, has shaped the last three years of Brexit debate. Both May and Johnson have acted without compromise in pursuing a pure/hard Brexit which brooks no limits on the choice to leave.

“In the intoxication of our new choice-based identity we have forgotten the other element by which our identity is defined: community. Our identity as a member of the community overlaps with the defining of our individual identity either by our duties or choices. It is thus also the solution to the current impasse. We must learn the lessons of past constitutional revolutions, our communal identity as individuals and nations of a United Kingdom must temper the new choice-based identity of our citizens and new basis of our constitution.

“A compromise which respects the new identity and right to choose of both leavers and remainers could be a soft Brexit, a second referendum to confirm an informed choice, a citizen’s assembly, or a combination of these. The Supreme Court’s invocation of representative democracy to find the prorogation unlawful in R (Miller) v Prime Minister [46] & [48] can be seen as an attempt to facilitate the conditions for such a compromise.

“If there is no compromise then there will have been no real revolution in our constitution. England will remain a society which expects absolute dutiful obedience to the will of a majority”.

Amen to that!

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