It is day three of the Supreme Court case on Article 50. Yesterday, we started to talk about how Brexit has brought our unwritten constitution into crisis. Today, we’ve outlined some of the key questions raised by our archaic constitution.
What’s wrong with the UK constitution?
Unlike most countries in the world, the UK doesn’t have a written constitution. We don’t have a roadmap that clearly sets out what different parts of government can and cannot do.
We do have constitutional law which is made up of a series of law, conventions (read habits) and precedents. But this is confusing and hard to understand, even for politicians and experts. What’s more, parts of it are hundreds of years old - it’s fair to say society and our democracy have changed a lot since 1688.
But more importantly, as citizens it’s unclear what our inalienable rights are, things the government can’t do to us that are simply outside their power. We know more about what fundamental rights Americans have than we do - think of ‘pleading the 5th' in court or the right to bear arms.
At times of huge political upheaval our unwritten constitution often raises more questions than it answers. So what are the constitutional questions that Brexit raises?
Who triggers Article 50?
This question is so confusing that it is currently the subject of a 5 day Supreme Court case. Theresa May thinks she can trigger Article 50 using the ancient power of kings and queens. She thinks there is no law saying she can’t.
What is Parliament’s role in the negotiation process?
This is completely unclear – unlike in Denmark for example, where their parliament shapes the mandate they give the government to lead negotiations before they start, there is nothing written down saying what role parliament has in international negotiations. The fact that Article 50 is in the courts is actually linked to UK citizens losing rights given to them by the EU without a vote in parliament.
What role do Scotland, Wales, and Northern Ireland have?
The UK is a made up of four countries, not all of which voted to leave the EU. Theresa May said she will talk to all the leaders of the devolved parliaments during the negotiation process. But all they can do is talk, they won’t have any powers to formally influence the process.
What if the House of Lords reject the Brexit deal?
Some members of the House of Lords have said that they want to stop Brexit. Can they do this?
The Lords wouldn’t be able to stop the deal being accepted but they could significantly delay it by making it go back and forth between the Commons and the Lords. Should unelected and unaccountable people be able to have such a huge impact on the country’s future?
Tomorrow, we’ll be outlining the solution – a new written constitution.