Brexit and the Commonwealth: Lessons from Comparative Legal History

Donal Coffey

Max Planck Institute for European Legal History

One troubling element of being asked to write on a topic after Asanga Welikala is the distinct possibility that he will have already thought of the best arguments, and put them forward with more elegance than one can muster. This occasion is not an exception to this rule. I want instead to draw out two elements that are present in Asanga’s text and consider them in slightly more detail.

First, there is a potential danger that a focus on comparative Commonwealth constitutionalism might be seen to be a partisan affair. It is certainly the case that of the largest political parties in the United Kingdom, the interest seems to lie predominantly with the Conservative party. In 2015, when the primary European focus was on the European Court of Human Rights rather than the EU, reports leaked of a proposal by Michael Gove, then the Justice Secretary, to stress the possibility of using commonwealth precedent in human rights cases. The mooted trade policy for the United Kingdom after Brexit under Liam Fox which was meant to re-establish commonwealth links was given the name ‘empire 2.0’ and meant to re-establish commonwealth links, raising the spectre of a yearning for an imperial past. It was given short shrift by the members of the Commonwealth. The zenith, however, was reached in the House of Commons when the Owen Paterson MP, a member of the hardline European Research Group, invoked the assassinated Irish nationalist Michael Collins, no fan of Westminster, in favour of his proposed course of action.

Commonwealth constitutionalism as a field of study, however, belongs to no particular ideology, and it would unduly limit the extent to which it can inform constitutional theory to perceive it in this fashion. The South Asian socialist constitutions of the post-War period, the Pan-African Constitution of the Republic of Ghana, as well as the constitutional monarchies of Jamaica and Grenada, sit alongside the constitutions of the settler-colonies of the Empire. The tendency within the United Kingdom for those enamoured with the Commonwealth to be drawn from a particular ideological bent should not obscure the kaleidoscope of constitutional designs, case law, and histories which it encompasses. The question of whether a particular constitutional convention should be capable of being judicially enforceable might be better suited to a Canadian example, but whether and how to constitutionally enshrine rights might benefit from an Indian precedent.

Second, and relatedly, Commonwealth constitutionalism as a field of study is greatly enriched by particular emphasis on the role that history plays in understanding constitutional development. The institutions of state and their interrelations are often shaped by some ill-appreciated event in the past, which set a path dependency that continues for decades. In trying to understand constitutions, our national constitutions or those of other countries, we have to grapple with the effects of these historical choices. Comparative constitutionalism calls for yet more work and attention to the attendant histories of other jurisdictions.

An example of how a failure to understand history can produce path dependencies can be seen in the case of Ireland. In Byrne v Ireland in the late 1960s Walsh J held that there was no prerogative power of the Crown, as the basis of the Irish Free State constitution in 1922 was popular sovereignty rather than constitutional monarchy, and this was carried over in the current 1937 constitution. The only problem with this view is that it was and is historically incorrect. Subsequent case law revealed the difficulty with the position of the Supreme Court, who effectively had to invent elements of the prerogative, such as treasure trove, in order to cover areas of law that were inadvertently changed by the Byrne decision. A comparative constitutional scholar coming to Irish case law might be tempted to accept the reasoning of the court in Byrne, without appreciating the lack of historical accuracy of the claims made in the case.

This, happily, is an argument for more engagement, rather than less. The point is generalizable to the field of constitutional law – constitutions, constitutional law, and constitutional politics are historically contingent. Greater attention to this insight promises a deeper appreciation of whether or not constitutional theories are accurate and desirable in specific contexts. As with social sciences generally, history is the laboratory in which to test out the implications of constitutional theory.

Although the topic under consideration today relates specifically to the influence that Commonwealth constitutionalism can have on the UK Constitution, I cannot think of a jurisdiction that would not benefit from studying comparative constitutionalism, and comparative constitutional history. The point can be expanded more broadly to embrace constitutions and constitutional history that are not written or understood in English outside the Commonwealth, although it should be appreciated that Commonwealth constitutions were never monolingual. The fact that Commonwealth constitutionalism can itself benefit from comparative analysis is readily conceded, but the analysis of the 53 separate constitutional structures of current members, as well as former members such as Newfoundland and Zimbabwe, already suffices for several lifetimes of study and analysis.

Donal Coffey is Senior Research Fellow at the Max Planck Institute for European Legal History.

Suggested citation: Donal Coffey, “Brexit and the Commonwealth: Lessons from Comparative Legal History” IACL-AIDC Blog (12 November 2019) https://blog-iacl-aidc.org/2019-posts/2019/11/12/brexit-and-the-commonwealth-lessons-from-comparative-legal-history