Dr Robert Taylor will be presenting at the upcoming ICON-S British-Irish Chapter Annual Conference entitled 'The United Kingdom’s Withdrawal from the European Union (?): Domestic and European Constitutional Implications'. The conference will be hosted by the University of Strathclyde on the 24-25th April.
A brief summary of Dr Taylor’s presentation is included below:
Constitutional Conventions under the Post-Brexit Constitution
The Brexit process has put a strain on key elements of the UK constitution. It has highlighted in particular the Constitution’s continued reliance on constitutional conventions (political rather than legal rules which are immune from judicial enforcement) and has raised questions over both their viability and desirability in the twenty-first century.
This was demonstrated early on during the Brexit process in the UK Supreme Court’s decision in Miller (2017), where the Court unanimously held that the Sewel convention was incapable of legal enforcement despite being put into statute in 2016. The Sewel convention also found itself in the spotlight following the decision when the consent of the devolved bodies was not sought for the passage of the enactment of the EU (Notification of Withdrawal) Act 2017, and again when the EU (Withdrawal) Act 2018 was enacted irrespective of Scottish Parliament’s refusal to give its consent when asked. Both instances could be seen as either breaches of Sewel convention, or merely evidence of its broad scope. The fact that the consent of the Northern Ireland Assembly was not required in either case because it was not sitting, further highlights a gap in the UK’s territorial constitution which even convention has lagged behind in filling.
Potential shortfalls in our current understanding of existing conventions have been further highlighted as a result of the Government’s attempts to have the Withdrawal Agreement approved by the House of Commons. Claims that Royal Assent could be refused, or Parliament prorogued on the advice of Ministers, presents a paradox whereby such action, although constituting an abuse of power, would potentially be neither illegal nor unconstitutional.
This paper will accordingly explore these issues in greater detail, making an assessment as to what role constitutional conventions should play under the post-Brexit constitution.
To read more about the Conference, please follow the link here.