Brexit: Are we facing the UK’s greatest constitutional crisis yet?

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This is the second of three articles about Brexit. After describing how Brexit will be achieved and what problems are likely to be encountered in the coming months and years, legal expert Rob Wilks this month looks at the impact Brexit could have on the England, Wales, Scotland and Northern Ireland union.

INTRODUCTION

In 1922, the United Kingdom of Great Britain and Northern Ireland was created. In the late 1990s, referenda were held in Wales, Scotland and London as to whether these nations or regions should have devolved governments, in which simple majorities voted yes. Thus the Scottish Parliament, the National Assembly for Wales and the London Assembly were established by law. The Northern Ireland Assembly was also formed around the same time as a result of the Good Friday Agreement of 1998.

In the EU Referendum on 23 June 2016, 62% of the Scottish people voted to Remain in the EU, as did 55.8% in Northern Ireland and 59.9% in London. In contrast, 52.5% of the Welsh people and 53.4% of England voted to Leave the EU.

It is quite clear from these results that Scotland, Northern Ireland and London saw the choice to Leave or Remain differently to that of the rest of the UK, and it would appear that cracks have once against formed in the unity of the four nations that make up the United Kingdom.

Brexit throws up a rather tricky situation in terms of devolution, as EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. In order to remedy this situation following Brexit, Westminster would need to amend devolution legislation, and can only do so with the legislative consent of each of the devolved nations. Would Scotland, Wales, Northern Ireland give such consent? Would refusing to give consent create a constitutional crisis?

Scotland

With the Scottish independence referendum of 2014 – which saw 55.3% of Scottish voters decide not to become an independent country – still fresh in Scottish minds, the Scottish Parliament’s First Minster, and Leader of the Scottish National Party, Nicola Sturgeon, was quick to express that it was a ‘democratic outrage’ that Scotland would be taken out of the EU against its will and that a second referendum on Scottish independence was highly likely.

Nevertheless, recent polls suggest that there has been no real shift in opinion within the Scottish population towards Scottish independence. For now, the Scottish National Party has launched a National Survey open until 30 November 2016 asking Scottish people to have their say about Scotland’s future in the wake of Brexit. If you are a Scottish national, go to survey2016.scot to complete the survey.

Northern Ireland

The political party Sinn Fein has meanwhile called for a border poll on the reunification of Northern Ireland in light of the UK’s decision to leave the EU. The Northern Ireland Act 1998 actually allows the Secretary of State for Northern Ireland to call a border poll when there’s clear indication that public opinion has swung towards a united Ireland, and so this is not entirely inconceivable, particularly as there would be economic benefits for Northern Ireland to reunify with Ireland, as Ireland is part of the EU and has adopted the Euro currency.

This possibility is more conceivable when you consider that an opinion poll in July 2016 suggested that 65% would vote in favour of a united Ireland. However, to date, conditions appear to have not been met to trigger a poll, as research and opinion polls have all tended to make it very clear that the majority in Northern Ireland support the political settlement under the Good Friday Agreement and hence Northern Ireland’s place within the United Kingdom, and support for the nationalist parties in the recent Northern Ireland Assembly elections suggest that reunification still looks like a remote possibility for Northern Ireland.

uk eu torn flagLondon

Following the 59.9% vote to Remain in London, 179,500 supporters signed a petition for London to become independent of the UK and to join the EU as it was quite clear that the majority of Londoners wished to stay in the UK. After all, if Scotland and Northern Ireland can make such a call, why not London too?

The Mayor of London, Sadiq Khan, has however made it quite clear that this is not on the cards, and realistically, it is unlikely to ever happen given that it is geographically landlocked by the rest of Great Britain and it is in any case the seat of the Houses of Parliament and the UK Government.

Wales

Even Plaid Cymru, Wales’ national political party, has jumped on the independence bandwagon by proposing that there should be a new union of independent nations
so that Wales can maintain its links with the EU. However, their ground appears shaky, particularly as 52.5% in Wales voted to Leave the EU.

Conclusion

So, are we facing the UK’s greatest constitutional crisis yet? On the whole, it would appear that the situation is not as bleak as initially feared. While it is certainly not yet off the table for Scotland, the chances of any real change happening in Northern Ireland, London and Wales are slim. The UK will remain the United Kingdom of Great Britain, at least for the foreseeable future.

Rob Wilks has been a qualified solicitor since 2007 and specialises in employment and discrimination law.

He is currently a Lecturer in Legal Practice for the University of South Wales, and “moonlights” as a Consultant Solicitor for Setfords Solicitors of Guildford, trading as Law Wilks, providing an enhanced professional personal legal service to D/deaf and hard of hearing clients.

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