Thursday, June 30, 2016

The Brexit Referendum and the Nature of the British Constitution

As an American watching the controversy regarding the non-binding referendum calling for the UK to leave the EU, I have wondered how it is that such a dramatic and structural change could be called for with a simple referendum and a majority vote of the voting citizens. Surely, I thought, one would require some higher bar than a vote which might be a majority of one citizen?

Such a structural change to the constitution in this country would require a 2/3rds majority in both the House of Representatives and the Senate at which time the proposed amendment would be sent to the states and would require 3/4s of all states to ratify this amendment.

This is a fairly high bar to pass and well it should be. There are a lot of pretty crazy ideas out there that can get a majority vote at any one time, but getting a 2/3rds vote from both houses of Congress and 3/4s of all states is a lot of work and thus any amendment that passes really does have the people of the United States behind it.

For example, if a state could secede from "the Union", e.g. the United States of America, with simply a majority vote in a referendum that could be called for at any time, how many states do you think would still be in the so-called United States of America?  I am pretty sure that most of the Southern and many of the Western states would no longer be a part of our country if that was all it took.  

So I researched how the British Constitution could be changed and one more time discovered that I only think I know what is happening outside this country, the reality is far more interesting and complicated.

The United States of America has a single document which we call the Constitution, a central document that sets out the rights and responsibilities of the various branches of government, how those branches are elected or appointed, how they relate to each other, how the judicial system works, how laws are made, and so forth. This document of course is just the tip of the iceberg, and underneath it is a whole body of law and court judgments and opinions and so forth. We have our strict constitutionalists and our more liberal interpretations, etc.

But in the United Kingdom of Great Britain and Northern Ireland there is no one single written constitution. What there is a series of important Acts of Parliament, conventions and court judgments that make up how the UK rules itself. Among the written parts of this body of laws and whatnot are such famous items as the Magna Carta of 1215, the Bill of Rights of 1689, the Parliament Acts of 1911-1949, and so forth. There is also at least one famous image that shows how Parliament should sit, and a variety of historical conventions that guide behavior.

I am quite sure that I do not understand the full nature of what the UK Constitution is, and that at the very least several months could be spent productively just figuring out what the important elements are. The point is, things are not the same everywhere, and it is foolish to think that they are.

The British Library has a useful introduction to this process and the UK Constitution here.

This explains how one could have a non-binding referendum of such importance that just has a majority vote, but still be left with a lot of confusion about whether or not Parliament will actually implement it (e.g. the UK leaving the EU).  A clue to this is in the pithy phrase "the Supremacy of the Crown in Parliament" and I leave it to the interested reader to look that one up and be amazed.

House of Commons

To put a possibly useful spin on this, lets briefly review how the two different constitutions came about. The UK as a country came into existence over a period of more than a millennia. One of the benchmarks of this formation process was, of course, the famous Magna Carta of 1215. That document, and the events that precipitated it, is now 800 years old. Although there were certainly civil wars and revolutions in the region now called the United Kingdom, there was never a time when everything was brought together into a single document and put into writing. It was a much more organic process, incremental, and with a very long history.

This country, on the other hand, was formed from 13 colonies of Great Britain, each colony of which had one of three different colonial structures that governed them. In order to bring the 13 different structures into alignment, a series of conventions were held in order to form a single structure that could please everyone. There was not a lot of trust and everything had to be put into writing. The first attempt at this, the Articles of Confederation, served to be good enough to fight a Revolutionary War, but not so good at running a country. From the second attempt at it comes our current Constitution.

The Bill of Rights of 1689

So there was an opportunity, and a need, to get everything in writing in one place. Of course, things are not so simple in reality even here, as we also have legal precedent in the form of common law which we inherited from Great Britain and which affects our life pretty much all the time.

So the point is, there were no special procedures for a Brexit referendum because there is no formal, single constitution to amend.  The "Supremacy of the Crown is in Parliament", so whatever Parliament votes is the way it goes, unless I suppose the Queen vetoes it, but she doesn't.

These darn foreigners are always full of surprises.


A few useful links: 

The Articles of Confederation on Wikipedia

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