Brexit and the Constitution

George Letsas

The constitutional questions around the government’s attempt to trigger Article 50 without parliamentary approval have been much discussed, but the EU referendum may well have another, more serious effect on the constitution. The UK’s membership of European organisations radically changed its constitution. For more than forty years domestic courts have interpreted Acts of Parliament in the light of EU legislation, giving precedence to the latter when a conflict arises, while under Section 3 of the Human Rights Act 1998, they have interpreted Acts of Parliament so as to make them compatible with human rights. These changes shook the foundations of the doctrine of parliamentary sovereignty, which holds that Parliament can make or unmake any law and that the role of the courts is to give effect to its will. Courts took on the task of protecting individuals against the vices present in any representative democracy: bias against unpopular minorities, neglect of the vulnerable, xenophobia, political opportunism, vested interests, abuse of power by powerful private actors and so on. They also began a process of institutional dialogue and co-operation with European supranational institutions in an attempt to tackle collective problems – such as climate change, consumer protection or workers’ rights – that no country can solve by itself.

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