Navigating without maps: Constitutional silence and the management of the Brexit crisis

Abstract

The vote by a narrow majority to Leave the European Union (EU) (“Brexit”) in the referendum of 23 June 2016 produced a political crisis in the United Kingdom (UK), in terms of deep uncertainty about the effects of Brexit; potentially serious implications for the territorial integrity of the UK; and the political backlash it provoked from disgruntled “Remain” voters. In this article, I explore the role of constitutional silence in navigating the Brexit crisis. I argue, first, that events since the EU referendum have exposed, and been shaped by, three key areas of constitutional silence (concerning the constitutional authority of the referendum itself; the extent of the UK government’s prerogative powers in foreign affairs; and the right of the Scottish people to secede from the UK) each with roots in deep structural features of the UK’s constitution. Second, I consider how silence has contributed, positively or negatively, to the management of the post-referendum crisis, asking whether what is undoubtedly a crisis for the UK constitution has also become a crisis of the UK constitution.