Brexit and the Commonwealth

Asanga Welikala

Edinburgh Law School

The pageantry of the Crown and the rituals of Parliament aside, perhaps the characteristic that beguiles students of the British constitution is its remarkable success in reflecting the nature of the polity in a body of organically evolved rules and arrangements. It has been a ‘living constitution’ with both plausibility and acceptance, when elsewhere that term usually suggests an artificial contrivance, an ideological assertion, or at best, an elusive aspiration. This organic character is illustrated in the constitution’s mode of change. Incremental, often imperceptible, and sometimes ingenious, the constitution has operated through a never-ending process of continuous change, swaddled in a high politics consensus based on prudence, toleration, deliberation, and accommodation. No grand philosophical telos but a politico-cultural sensibility of equanimity embodied in the notion of a ‘balanced constitution’ governs constitutional change. To its enthusiasts, this is its genius and the normative rationale for a general style of constitutionalism that is distinguished by a resilient capacity for absorbing shocks – big and small – within a general framework of liberty, order, civility, and reason. To its radical detractors, it is both disingenuous and dangerous, with the constitution serving as an elaborate, but ultimately threadbare, cloak of respectability for all the perfidies of the British state. But both enthusiasts and detractors have nevertheless subscribed to the conception of the constitution as a seamless narrative – for the former, as the framework of conservation and gradual reform; for the latter, a labyrinth that gums up any meaningful progress. 

Over centuries, changes as momentous as relocating the institutional seat and territorial distribution of sovereignty, or the expansion of the electorate, or the divestiture of a large overseas empire, or the participation in a supranational constitutional order, have all been accommodated or achieved without major constitutional upheaval. By contrast, such change brought revolution and dictatorship to continental Europe before the eventual entrenchment of liberal democracy after two world wars. But Brexit looks increasingly like the rock upon which this dominant constitutional self-understanding is about to founder. The unique effect of Brexit, perhaps, is that in no comparable historic moment before has the delicate balance of institutions and norms that make up the patchwork of the unwritten constitution been altered so quickly, so much, with so much partisanship, and so little deliberation.

All three branches of the state have responded to the challenges of Brexit in ways they each think are consistent with modern democracy, albeit according to competing conceptions of what those normative requirements are. To simplify in order to contrast, it can be said that the executive has been driven by direct democracy, the legislature by constitutional pluralism, and the judiciary by liberal legal constitutionalism. In abstract terms, these are not alien ideas to British political thought or the common law, but as constitutional devices or norms, they are all certainly at one remove from the British constitutional tradition. Institutional responses such as the Brexit referendum itself, or Prime Minister Johnson’s attempted prorogation of Parliament, or the deployment, in the words of Speaker Bercow, of ‘additional procedural creativity’ in the House of Commons, or the Supreme Court’s re-articulation of the normative and institutional foundations of the constitution and the expansion of judicial review, have all undoubtedly changed the law and the spirit of the constitution in ahistorical ways. In most of these instances, the institutional actors have all either disavowed they are changing the constitution, or cast their actions in the usual narrative of continuity, but it cannot be denied that the Commons and the Court in particular have materially changed the constitution through their interventions. It seems almost a pity if this succession of crisis-induced changes leads to the destruction of the remarkable human achievement that is the British constitution – or changing the constitution, as Seeley remarked of the empire, in a fit of absence of mind.

This is not a plea for either British constitutional exceptionalism or atavism, however. In navigating constitutional waters as perilous as Brexit, most countries nowadays would seek guidance from the experience of other countries which can appropriately and legitimately be compared. With only a few and controversial exceptions, comparativism is today the dominant method of approaching the resolution of constitutional problems everywhere. For the UK, the obvious and most felicitous source of comparative guidance is the Commonwealth. A family of nations bound by multiple ties of history, politics, law, language, and culture, it is today a community of values that has transcended its anachronistic imperial origins. For comparative constitutional lawyers from elsewhere in the Commonwealth, however, the absence, or worse, the maladroit use of Commonwealth comparisons is surely one of the most vexing aspects of the legal debates surrounding Brexit within the UK today. But as the UK grapples with the challenges of Brexit, there is a strong case for an intellectual re-engagement with the Commonwealth as an invaluable source of useful knowledge. From the cornerstone concept of the Crown-in-Parliament, and the law and the political ethics of relations between executive and legislature, to the management of territorial pluralism, from secession and the transfer of sovereignty, to constitutional rights and the judicial role, there will be precedents from the Commonwealth that have relevance to the Brexit situation.

Like all constitutional comparisons, few such precedents will be directly applicable, but their consideration will enrich debates and provide avenues for the resolution of constitutional problems consistently with the logic of the Westminster model of parliamentary government. It will help avoid constitutional misadventures based on contestable ideologies and normative philosophies, and in this way help alleviate deep political divisions. And as is the Commonwealth way, it will bring lawyers, political scientists, and especially historians into a public conversation about constitutional problems in a way that would help democratic deliberation more broadly. Beyond the complexities of Brexit, a comparative re-engagement with the Commonwealth would also help disseminate sophisticated recent British contributions to constitutionalism – to name only a few, the accommodation of plurinationalism, political constitutionalism, the theory of sovereignty and democracy, the parliamentary protection of rights and constitutionalism, etc. – to countries that are well placed to receive them.

The years between the first wave of decolonisation in the late 1940s (or slightly earlier in the case of the self-governing settler dominions) and the accession to the European legal order in the early 1970s were the promising but brief period in which British public law embraced the Commonwealth in the modern sense of a community of equals. Through the work of leading lights such as Jennings and de Smith, and the role of the Judicial Committee of the Privy Council as effectively the constitutional court of much of the Commonwealth, British public law during this period displayed an intimate yet respectful familiarity with constitutional issues of Commonwealth jurisdictions. Even today, aspects of the doctrine of parliamentary sovereignty are illustrated for students of public law by reference to cases from New South Wales, South Africa, and Ceylon (now Sri Lanka) from this period. There was much promise for these early dynamics to develop into a fully-fledged community of comparative constitutional law such as we see on a global scale today. And yet it would seem it was premature. Newly independent states were only beginning to come to terms with the traumas of colonialism, and many were eager for less, not more, connections with the imperial power. Colonial guilt, or at least a haunting embarrassment about colonial excesses, made the attractions of the late-modern New Jerusalem of the European ideal ever more compelling within the British public law academy. These factors contributed to decisively shift the focus of British public law’s core concerns away from the Commonwealth towards the UK’s place within Europe.

But Brexit’s reorientation of Britain’s international outlook provides an opportunity to re-engage with the Commonwealth in a world of public law that is much changed from the 1970s. There have been major constitutional developments in the former dominions in dealing with issues such as secession, devolution, prorogation, dissolution, and the protection of rights. The many ex-colonies are also no longer fledgling states, but, with admittedly varied and uneven success, more or less consolidated states with deepening democratisation that make them genuine subjects of comparative constitutional interest. As an intergovernmental organisation, the Commonwealth has promoted normative convergence around broad ideas like democracy, fundamental rights, the rule of law, and good governance, which its Charter now enshrines as shared values. The Charter’s preamble also speaks of a ‘Commonwealth Way’ – of consultation, cooperation, dialogue, and mutual respect – distinct, but related to the Commonwealth way of comparative and contextualised constitutional deliberation mentioned above.

Comparative constitutional law and constitutional theory are both fields that have blossomed globally in recent decades, as has the acceptance of interdisciplinarity, especially as between law, history, and politics, as almost essential to the toolkit of the successful constitutional jurist. This is a promising environment for British contributions in these areas to be more fully discussed and used in the Commonwealth, and to contribute to the nascent reappraisal of the dominant model of strong-form liberal legal constitutionalism that has informed the global practice of constitution-making since the end of the Cold War.

As an empirical field for comparative constitutionalism, the Commonwealth jurisdictions are defined by almost ideal conditions of unity and diversity. In both the common law and the English language, Commonwealth countries enjoy an essential shared medium of legal and political discourse. Many are parliamentary democracies, a constitutional form that generates common patterns of political behaviour. At least notionally, all are bound by the normative values reaffirmed by the Commonwealth Charter, and in many cases these principles were first established within Commonwealth jurisdictions in colonial-era constitutions and legal precedents. Thus, historical precedents of constitutional law and political practice within a shared past inform the understanding, negotiation, and resolution of contemporary constitutional questions. Commonwealth courts continue to regularly use British and Dominion case law, and increasingly the decisions of newer Commonwealth apex courts that have risen to prominence such as that of India and South Africa.

These elements of unity are enriched by deep diversity in terms of institutions, histories, traditions, and cultures. This diversity promises much for comparative enquiries into different political regimes on central questions of contemporary constitutional law, including models of constitutionalism informing institutional design; legitimacy, rights, and the relationship between law and politics; the negotiation of territorial, societal, and value pluralism; the relationship between tradition and modernity, and the meaning and relevance of both. The extraordinarily rich debates around the ‘New Commonwealth Model’ of constitutionalism demonstrates the potential for extending the scope of Commonwealth comparativism beyond the institutional means of rights protection to all other questions of public law.

In short, bringing the Commonwealth back into the intellectual agenda of British public law seems like a compelling need in both helping resolve the constitutional complexities of Brexit, and in repositioning the global place of British public law after it.

Dr Asanga Welikala is a Lecturer in Public Law at Edinburgh Law School, Director of the Edinburgh Centre for Constitutional Law, Research Associate of the Institute of Commonwealth Studies, and Co-convenor of the Arthur Berriedale Keith Forum on Commonwealth Constitutionalism at the University of Edinburgh.

Suggested citation: Asanga Welikala, “Brexit and the Commonwealth” IACL-AIDC Blog (12 November 2019) https://blog-iacl-aidc.org/2019-posts/2019/11/12/brexit-and-the-commonwealth