New Paper by Richard Gordon QC and Rowena Moffatt: ‘Brexit: The Immediate Legal Consequences’

The Constitution Society Paper, Brexit: The Immediate Legal Consequences’, by Richard Gordon QC and Rowena Moffatt, is available online.

The outcome of the referendum on 23 June 2016 will, in practice, bind the government on the question of whether or not the United Kingdom will remain in the EU. This paper does not engage in the issues about ‘remain’ or ‘leave’ about which it is neutral. But if there is a vote for Brexit the legal implications of such an outcome will suddenly occupy centre-stage. Thus far, they have hardly been addressed. Here, the authors explore the two pressing and immediate legal consequences of Brexit. Part 1 examines the constitutional consequences of a vote to leave the EU and Part 2 focuses on the consequences of such a vote for EU citizenship rights. The thesis presented is that identifying the immediate legal effects of Brexit can neither be avoided nor deferred and that, once identified, they need to be planned for well in advance of any exit from the EU. Constitutionally, these legal challenges encompass the uncertainties surrounding the operation of Article 50 TEU regulating the exit of member states, the complexities of uncoupling EU law from domestic law, and the implications of Brexit for devolution including the engagement and justiciability of the Sewel Convention. There are also likely to be substantive legal effects on EU citizenship rights that are vested and that may become the subject of legal proceedings either in the UK or elsewhere in the EU.

This pamphlet presents the views of the authors and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject. 

20th May 2016

The Crisis of the Constitution, 2nd Edition

The general election of 2015 answered conclusively, to the surprise of most commentators, the question, ‘Who governs Britain?’ by yielding a single-party government with an overall majority in the House of Commons. But it did not answer two of the fundamental constitutional questions facing Britain. The first is how Britain is to be governed in an era of party fragmentation in which the electoral system, even when, as in 2015, it produces a single-party majority government, yields one enjoying just over one-third of the popular vote.

The second and even more fundamental question is – will there still be a Britain to be governed, will the United Kingdom remain in being, or has the outcome of the election in Scotland, where 56 of the 59 seats were won by the SNP, given an irreversible push to separatism.

But these are not the only constitutional questions that Britain will face. There are in addition a European Question, a Human Rights Question and an English Question. The constitution, which many politicians hoped might have been disposed of after the Scottish referendum, has returned to the political agenda with a vengeance. In the second, post-2015 General Election, edition of this pamphlet, Vernon Bogdanor addresses these issues.

Download this paper as a pdf here.

by Vernon Bogdanor (This pamphlet presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject). 

17th March 2016

New paper by Professor Vernon Bogdanor: ‘The Crisis of The Constitution’, 2nd Edition

The Constitution Society paper, ‘The Crisis of the Constitution’ (2nd Edition) by Professor Vernon Bogdanor, is available online.

The general election of 2015 answered conclusively, to the surprise of most commentators, the question, ‘Who governs Britain?’ by yielding a single-party government with an overall majority in the House of Commons. But it did not answer two of the fundamental constitutional questions facing Britain. The first is how Britain is to be governed in an era of party fragmentation in which the electoral system, even when, as in 2015, it produces a single-party majority government, yields one enjoying just over one-third of the popular vote.

The second and even more fundamental question is – will there still be a Britain to be governed, will the United Kingdom remain in being, or has the outcome of the election in Scotland, where 56 of the 59 seats were won by the SNP, given an irreversible push to separatism. Read more ›

3rd February 2016

New paper by Professor Dawn Oliver: ‘Constitutional Guardians’

The Constitution Society paper,‘Constitutional Guardians: The House of Lords’ by Professor Dawn Oliver, is available online.

This pamphlet explores the arrangements for guardianship of the UK constitution and its values and the role of the House of Lords in particular.

Effective constitutional guardianship is important in any liberal democracy. In most democracies the courts have important roles in deciding whether laws breach the constitution and striking them down if so. This is not a role that the courts are able to perform in respect of legislation passed by the UK Parliament, since it possesses legislative supremacy. Protection of constitutional values in the UK is therefore essentially a matter for parliamentarians, and particularly a responsibility of the second chamber and its committees: party political partisanship is less strong there than in the Commons, the government does not have a majority in the House of Lords, and an independent and professional element in the membership of the Lords enables that chamber to carry out its guardianship roles authoritatively and fairly. However the composition of that chamber presents political problems for the guardianship role which need to be overcome.

(This pamphlet presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject). 

19th December 2015

‘Labour and the electoral system: The myth of defeat and the chimera of victory’ – by Nat le Roux of The Constitution Society

The political commentariat comprehensively failed to predict either the Conservative victory in the May general election or the emergence of Jeremy Corbyn as the eventual victor of the Labour leadership contest. Following a perhaps inappropriately brief period of reflection, the mainstream media have lighted on a consensus interpretation of these events which many in the Parliamentary Labour Party apparently share. Two soundbites of received wisdom now seem to frame most conversations about the result of the general election and the future of the party. They can be summarised succinctly:

Labour lost the 2015 general election because it lost the argument with the Conservatives on the economy’

‘Labour is unelectable in 2020 with Jeremy Corbyn as leader’ – and is thus by implication electable under a different leader

An analysis of the electoral arithmetic provides very limited support for either proposition.  

Read more ›

4th November 2015

New Advisory Board members announced

We are delighted to be able to announce four new appointments to The Constitution Society Advisory Board. They are: Prof. Vernon Bogdanor, The Rt. Hon. the Lord Foulkes of Cumnock, The Rt. Hon. Dominic Grieve MP and Sebastian Payne.

Professor Vernon Bogdanor CBE

Vernon is Research Professor at the Institute for Contemporary British History, King’s College London. He was formerly Professor of Government at Oxford University and Senior Tutor and Vice-Principle at Brasenose College, Oxford. He has written widely on government and politics. Vernon has been an adviser to government and parliamentary bodies. He is a fellow of the British Academy.

The Rt. Hon. the Lord Foulkes of Cumnock

George Foulkes is a Labour member of the House of Lords. He was a Member of the House of Commons from 1979 – 2005 and a Member of the Scottish Parliament from 2007 – 2011. From 1997 to 2001 George was Parliamentary Under-Secretary at the Department for International Development and from 2001 – 2002 he was Minister of State at the Scotland Office.

The Rt. Hon. Dominic Grieve MP

Dominic has been Conservative MP for Beaconsfield since 1997 after working as a barrister and serving in the Territorial Army and as a Hammersmith councillor. He first joined the front bench of the opposition in 1999 as a spokesperson on Constitutional Affairs. He was Attorney General from 2010 to 2014. Presently he is a member of the House of Commons Standards and Privileges Committee.

Sebastian Payne

Sebastian is President of the United Kingdom Constitutional Law Association, a Lecturer in Public Law at the Kent Law School and a Barrister of the Inner Temple. As well as publishing on the law relating to terrorism he is the editor (with Professor Maurice Sunkin) of The Nature of the Crown (Oxford University Press 1999).

Details of all Advisory Board members can be found here: http://www.consoc.org.uk/other-content/about-us/who-we-are/

29th June 2015

New paper by Vernon Bogdanor: The Crisis of the Constitution

The Constitutions Society’s paper, ‘The Crisis of the Constitution: The General Election and the Future of the United Kingdom’ by Vernon Bogdanor, is available online.

Who governs Britain? That is the question being put to the voters on 7th May. But there are other questions lurking in the background, constitutional questions, that are the subject of this pamphlet. The first of them is – how is Britain to be governed in an era of party fragmentation in which the electoral system either fails to yield a single-party majority government; or, if it does yield such a government, it is likely to be a government enjoying little over one-third of the popular vote?

The second and even more fundamental question is – will there remain a Britain to be governed, or will the election give a further push to those forces in Scotland calling for separation? But these are not the only constitutional questions that Britain will face. There are in addition a European Question, a Human Rights Question and an English Question. The constitution, which many politicians hoped might have been disposed of after the Scottish referendum, has returned to the political agenda with a vengeance. Vernon Bogdanor discusses both the problems and possible solutions. Read more ›

12th February 2015

‘Electoral Collision Course?’ paper

The Constitution Society paper ‘Electoral Collision Course? The Boundaries and the Register after May 2015’ by Lewis Baston is available online.

A common complaint about the constitutional reform programme pursued by the Labour governments of 1997–2010 was that it was disjointed. The same problem has recurred under the Coalition since 2010, even in those bits of ‘the biggest shake up of our democracy since the Great Reform Act of 1832’ (Nick Clegg, 2010) that have been seen through to completion.

Two of these changes have created a particularly malign combination. These are the changes that were introduced in 2011 to the way parliamentary constituency boundaries are drawn, which were paused rather than cancelled in 2013, and the radical changes to the basis of electoral registration.

After May 2015 the two measures will collide horribly. The current government intends (subject to Parliamentary approval) to purge the electoral registers in late 2015. Even if (and this is doubtful) Individual Electoral Registration produces a more complete and accurate register in due course, the post- transitional register in December 2015 is likely to be severely incomplete. Read more ›

28th October 2014

‘Distinguishing Constitutional Legislation’ paper

The Constitution Society’s latest paper ‘Distinguishing Constitutional Legislation: a modest proposal’ by Andrew Blick, Nat le Roux and David Howarth is now available online.

In most democratic states, the mechanisms for constitutional change are clearly separated from mechanisms for enacting ‘ordinary’ legislation. They are also designed to make any significant alteration in existing constitutional arrangements a relatively difficult undertaking. In Britain, however, there is no legislative process for constitutional change other than ordinary legislation, nor is there any clear or generally agreed distinction between constitutional and other laws.

The potential shortcomings of this approach have become increasingly evident in the period since 1997, which has been marked by frequent, sometimes hectic, constitutional change. Constitutional modification is now an established part of every government’s legislative programme. If elected governments too often seem to amend these rules in a self-interested way then trust in the legitimacy of the political system may be progressively undermined.

This paper considers the options and proposes a mechanism whereby Parliament could identify and impose the special procedures it deems appropriate for legislation of first-class constitutional importance. It concludes that if Parliament wants to, it has the power to bring about a better approach in this area.

19th August 2014

‘The Reality of the British Constitution’ paper by David R. Howarth and Shona Wilson Stark

A paper by David R. Howarth (University of Cambridge) and Shona Wilson Stark (Christ’s College, Cambridge) is available online. It breaks new ground in its assessment of the British constitution.

Using interviews with senior UK officials about their views of the rules of recognition, change and adjudication, it concludes that there may be in effect three different constitutions operational in this country.

An abstract follows. The full paper is available on the SSRN website here.

  Read more ›

15th August 2014