Entry in the Europe Communities, as the European Union then was, in 1973, had major consequences for the British constitution. In particular, it led to the constitutional innovation of the referendum, and cast doubt on the central principle of the constitution, the sovereignty of Parliament.
Brexit could have equally seismic constitutional effects. It will mean a shift not only from Brussels to Westminster, but also from the courts to Parliament and the executive. It will in addition remove the protection of the European Union Charter of Fundamental Rights. It might, therefore, conceivably return Britain to the condition of `elective dictatorship’ identified by Lord Hailsham in the 1970s.
While Britain was in the EU, she was in practice living under a codified constitution. Brexit is a process rare if not unique in the modern world, involving as it does disentrenchment and disengagement from a codified to an uncodified constitutional system. It is also rare if not unprecedented for a democracy to exit from a major international human rights regime.
Brexit could, however, prove a moment of opportunity. It could prove Britain’s constitutional moment. Indeed, by exposing the nakedness of Britain’s uncodified constitution, it could prove the catalyst for a codified constitution so bringing Britain into line with virtually every other democracy in the world.
Organised in collaboration with the Institute of Historical Research
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