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Adopting a morbid image, it might be argued that there is nothing like a complete skeleton which can now be extracted from the flesh of accumulated EU directives as we seek to leave the EU.  At the same time, the law-abiding culture which centuries of self-government have created in the UK has led the British civil service to apply Brussels directives in the strictest possible way — something giving rise to charges that the UK’s literalism (“gold-plating”) contrasts markedly with other member states’ looser application (which at times can mean ignoring them). The recent unabashed refusal of Eastern European member states to accept EU refugee quotas offers a sharp contrast to British attitudes and practice as a member of the EU.

An important difference between an unwritten constitution and the codified constitutions of EU member states emerges at this point. When national courts operate within the framework of a written constitution, they may more easily feel empowered to challenge EU claims of final legal authority. The German Constitutional Court, drawing on its federal constitution, has sometimes strongly asserted limits on the EU’s jurisdiction — whereas the UK Supreme Court has evidently felt less able to do so.

The simplicity of the UK’s underlying constitutional norm has thus allowed deeper penetration of the EU into British government — both its rules and its practices — than has been the case in other member states. Its traditional flexibility has, in a sense, been its undoing.

It is not absurd to say that after more than four decades of British membership in Europe the British state is more fully part of Europe than any other member state. Indirect evidence for that emerges in the fact that the UK has been taken to court by the EU Commission less often than most other member states. The habits created by a culture of consent have seen to that.

But does Brexit itself now threaten the survival of that culture? For in the disputes about leaving the EU Brexiteers often make their case by appealing to “the will of the people”. But that appeal, if made too simply, endangers the culture of consent created by parliamentary sovereignty.

A representative form of government turns on introducing subtlety into the governing process. It involves a recognition that public opinion is complex, often incoherent, with majorities constantly shifting — so that the duty of legislators is to introduce as much coherence as possible into legislation, while respecting the diversity of opinion. It treats “the majority” as important but not conclusive (the abolition of the death penalty provides an obvious example). It avoids a simple binary outlook whenever possible. Indeed, that is the heart of “liberal” democracy as opposed to “populist” democracy.

So we should not delude ourselves by thinking that Brexit merely raises difficult questions about our future relations with the European continent. It threatens the very coherence and identity of the British state. For that reason I suspect that it will lead sooner rather than later to new constitutional settlement in the UK. That is the final paradox. Withdrawing from the European Union out of anxiety about its moves towards a European federation may very well lead to a federal UK.
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untenured
November 1st, 2018
12:11 PM
At the end of WWll, the UK elected to choose the delusion of socialism which doesn't require the existence of a constitution. Eventually Alastair Campbell seems to have taken on the role of Lord Protector, giving us Tony Blair as the figurehead of a clone of the U.S. political arrangement. Unlike the U.S. which is responsible for the global currency and can do as it pleases, the U.K. has one of the myriad crypto-currencies, and can do nothing to arrest its descent to oblivion. Alastair Campbell is leading the successful Resistance to Brexit. He knows what's best and can ignore the ruination of the statelets of the EU that used to be serial devaluers, but now just stuff their worthless IOUs into the ECB's balance sheet. "Yet in recent decades, especially since the Thatcher government, the UK government has itself become excessively centralised." Just another way of saying the socialists are in charge. Take a bow Mr. Serwotka and all the like-minded servants of our country.

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