The referendum campaign and the public’s constitutional understanding

The decision to leave the EU is constitutionally momentous. The legal issues it raises have been analysed by, among others, Mark ElliottAlan RenwickStephen Tierney, and Steve Peers. This contribution does not wish to replicate them. Instead it discusses where the referendum campaign itself leaves the public’s understanding of the constitution.

This failure in political communication was not confined to the specific issues concerning the relationship between the UK and the EU; it overflowed into the wider constitutional sphere.

Referendums should have an educational function. Their suitability for resolving knotty questions rests not on the bare fact that the public decides, but that it is an informed public. Rather than rising to the occasion, the referendum descended into a series of questionable assertions that saw its closing stages punctuated by pleas for the facts. Despite organisations such as Full Fact and initiatives like UK in a Changing Europe, half-truths and untruths abounded. Among the most notorious were Vote Leave’s incorrect claims that Turkey was poised to join the EU and persistent disagreement between both sides about their economic forecasts. This failure in political communication was not confined to the specific issues concerning the relationship between the UK and the EU; it overflowed into the wider constitutional sphere.

Particular problems arose from Vote Leave’s constitutional vision. In line with mainstream thinking, this had Parliamentary sovereignty at its core, but its interpretation was one-dimensional. It failed to appreciate the wider constitutional framework within which Parliament operates and gave the public an oversimplified view of the constitution. Its misunderstandings could have serious knock-on effects.

During the campaign, the Queen’s stance on Brexit was apparently twice leaked to The Sun. The legitimacy of a hereditary monarch with various formal roles, including ultimate responsibility for appointing the Prime Minister, hinges upon their public neutrality. These incidents, presumably intended to boost Vote Leave’s patriotic message by drawing on the Queen’s royal capital, undermined this premise. The irony – to protect one core constitutional principle, the leaker tarnished another – implied that the constitution is only about Parliamentary sovereignty, not about other matters, even those as obvious as the Queen’s neutrality. Similarly, the focus on ‘restoring’ an idyllic British Parliament meant, at least in England, that little attention was paid to the equally obvious devolution issues. It was not made sufficiently clear that Brexit could jeopardize the Union.

Rhetoric was deployed about ‘unelected EU judges’ overriding Parliament’s will. This misrepresented the situation which will prevail until Brexit concludes. In domestic law, EU law is only effective, and only takes primacy over UK legislation, because of the terms Parliament wrote into the European Communities Act 1972. It is not because of EU judges. Indeed, there are good legal reasons to suspect that, if Parliament expressly instructed UK judges to ignore applicable EU law, or if EU law conflicted with a fundamental constitutional principle, it would not be enforced in domestic law. It is inaccurate to perceive EU law as an unstoppable invader; even in the rare situation where the UK government did not vote in favour of EU legislation, Parliament had chosen to accept it.

Relegating Parliamentary sovereignty’s value to a matter of all-or-nothing patriotism disguises facts like this showing that it encapsulates a representative political process capable of nuanced thought on difficult issues. It is valuable because it can weave competing ideas, arguments, and principles into its decision-making process. Depicting it as a blunt object oversimplifies the complexity of constitutional politics and encourages shallow thinking about fundamental issues within our system of government.

Attacking ‘unelected’ judges also neglects the value of an independent and expert judiciary. It ignores that British judges are, happily, unelected: this helps them remain independent and uphold the rule of law. The double standard – unelected judges are fine for us but not for them – is troubling. It corrodes respect for the rule of law. This attitude to the EU judiciary may legitimise British unwillingness to comply with other international legal obligations and normalise claims that judicial decisions are illegitimate if one disagrees with them.

Why does this matter? Apart from the general importance of encouraging constitutional literacy, the result precedes further constitutional events and reforms. The Prime Minister has announced his intention to resign. There may be calls for a snap election when his successor is named. A second Scottish Independence referendum seems likely, and the situation in Northern Ireland is unclear. Proposals to replace the Human Rights Act 1998 with a ‘British Bill of Rights’, and perhaps to withdraw from the European Convention on Human Rights itself, loom. Understanding these issues requires an awareness of constitutional principles outside of Parliamentary sovereignty: when and how can Parliament be dissolved? What are the powers of the Scottish Parliament? What about the Good Friday Agreement? How should we protect human rights? It is to be hoped that these crucial matters are debated within an atmosphere more appreciative of our intricate constitutional tapestry than was the EU referendum.