Abstract
AbstractThe Brexit referendum highlights the apparently anomalous role of the “people” in the constitutional order of the United Kingdom. Politically speaking, its verdict is acknowledged as unassailable and unaccountable, yet this “sovereign” status has no legal grounds. In turn, some commentators have argued that this discrepancy between “political” and “legal” understandings of popular sovereignty—or the failure to properly institutionalize popular sovereignty in a legal-constitutional form—represents a distinct site of constitutional crisis in its own right. However, I argue that such claims of constitutional anomaly, or of British exceptionalism in this regard, are misplaced. While the Brexit scenario seems to express the destabilizing and disruptive potential of a popular sovereign that exceeds or evades constitutional recognition, this is in no sense a peculiarity of the British constitutional order. By its nature, popular sovereignty is inexhaustible by constitutional recognition, and so it tends to retain such disruptive potential regardless of whatever constitutional form it is assigned. Thus, critics of the British constitutional status quo overestimate the capacity of constitutional law in general to regulate or domesticate the expression of popular sovereignty via referendums.
Highlights
I argue that such claims of constitutional anomaly, or of British exceptionalism in this regard, are misplaced
This question arises amidst an apparent paradox that, whereas the British people remain legally unrecognized as a constitutional agent and a “sovereign,” their decision expressed in the referendum result is understood as unassailable or as unaccountable by the relevant actors
In this article I argue that such claims of constitutional anomaly or of British exceptionalism, are misplaced
Summary
The Brexit referendum presents a number of apparent anomalies concerning both the constitutional status of the British people and the constitutional recognition of popular sovereignty more generally. Bogdanor in particular has argued there is a further constitutional convention requiring referendums be held with respect to certain issues, and any transfer of powers from parliament, either supranationally or infranationally.[15] Taken together, it might be argued these two conventions entail popular sovereignty in a meaningful sense, as the people are guaranteed a final say as to any reconfiguration of governmental powers. We might say that the British people are conventionally recognized as “sovereign” in that their decision is widely, if not unanimously, understood as binding, at least morally, on all state organs.[20] This understanding is completely out of kilter with formal constitutional doctrines. As Greene puts it, the courts have “ignored” the “emergence of the People as a constitutional agent.”21And this appears, to say the least, somewhat anomalous
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