Brexit or the Mulier Sacer

Is the withdrawal of the United Kingdom from the European Union an example of a constitutional transformation? What Brexit has indeed confirmed is that if there is a real constitutional change at the European level, that can only be pro­vided through a domestic constitutional development.

“New constitutionalism” & constituent power 205 thus, that in recognizing a unilateral right of secession to the States [through Article 50 of the Treaty on European Union which foresees the possibility of State secession once the term of two years is reached from the notification when there is no agreement]²³ the Union renounces the assumption of any sovereignty attributes understood as original and inner supreme power.

Under a different perspective, it is arguable whether Brexit has activated a constitutional transformation within the United Kingdom. Generally, it is difficult to appreciate the character of a radical constitutional change within a system of flexible constitution such as the British one. The statutes concerning the integration of the United Kingdom in the European Communities (the 1972 European Communities Act) or its separation from the European Union (the 2018 European Union Withdrawal Act and the 2020 European Union Withdrawal Agreement Act) may be considered a component of the British constitution such as the 1689 Bill of Rights or the 1701 Act ofSettlement are, but it is harder to affirm if European membership or its ending changed somehow the nature of the British “regime.”

According to the series of constitutional discussions that arose in the British Parliament, in the Courts,²⁴ and within the citizenship during the process of withdrawal from the Union, it could be suggested that Brexit represented a relevant transformation for the United Kingdom constitutional system.

From the second half of the sixties, the United Kingdom was tackling a difficult situation in terms ofpolitical stability and economic stagnation that would become worse during the decade of the seventies. By that time, the bulk of the colonies and dominions had already been lost in more or less convulsive procedures (Buettner, 2016, pp. 23-73). The Middle East mandates (including Palestine and the fierce conflict that the British withdrawal supposed), India, Pakistan, Burma, the possessions in the Malacca Peninsula, Egypt, Sudan, enormous extensions of territories in both West and East Africa.. everything was gone, and while enormous pieces of territories were being divided from the motherland, the British institutions still thought that they could cope with the juncture by their sole national means. But it was soon evident that the loss of markets and wealth caused by the disintegration of the Empire had to be found somewhere else. The Macmillan government already launched Britain's first application to join the European Economic Community in 1961 propelled by shifts in British trade towards advanced industrial European markets. This first membership application would meet, however, the same fate as the second: the reluctance of General De

Gaulle to allow Britain's integration in the European project and the consequent French veto to Britain's adhesion [so, it is not surprising that when De Gaulle left office in April 1969, the prospects of widening the European Community to include the United Kingdom improved sharply (Judt, 2005, p.

By the beginning of the seventies, nevertheless, the big political and humanitarian shock was not in any distant British colony but in the very backyard of the metropolis: Northern Ireland. In summer 1969, following the Apprentice Boys' March, a battle had spread through the streets of Derry between the unionist police forces and the Republican residents of Bogside that led to the deployment of the British Army. But the British military presence, in the beginning conceived to act as a neutral force to come between both fighting communities, only made things worse. The Irish Republican Army reorganized with the split into the “Provisional” and the “Official” factions in a way that the Provisional one embarked itself in an armed struggle to defend the Catholic community against British rule.

Following the killing of a British soldier in February 1971, the British government introduced internment without trial; a decision that radicalized still further the Catholic community, since they perceived that they had been flagrantly discriminated against in the struggle of the British authorities to restore order (Walker, 2006, p. 27). Finally, violence reached one of its peaks on January 30, of 1972 when the British First Battalion Parachute Regiment killed 13 unarmed civilians and injured more than 14 people who were marching peacefully, in the events that were to be known as “Bloody Sunday.” The point that I would like to observe here is that such an orgy of violence happened only seven days after Edward Heath signed the accession Treaty to the then European Communities (on January22, of 1972) and just at the beginning of a dark year of armed conflict that left 146 members of the security forces and 321 civilians killed (Judt, 2005, p.

Almost 50 years after, the United Kingdom's process of leaving the EU did not occur in an absence of violence, either. Not only was the debate on abandoning the EU strongly affected by the crisis of refugees arriving to Europe from the countries of the Middle East or the threat of terrorism from ISIS and Al-Qaida; not only was the referendum campaign surrounded by both passions and a context of aggression (the opposite of what had to be expected in a reasonable

“New constitutionalism” & constituent power 207 deliberation) but also, on June 16 2016, Jo Cox, a Labour MP defending the idea that the UK should remain in the EU, was killed by a man allegedly with several connections to ultra-right movements in favour of Brexit.

The assassination of Jo Cox was clearly a political killing in spite of the fact that the killer, Thomas Alexander Mair, had a long history of mental-health problems (one may argue that some Nazi hierarchs, including Hitler, suffered mental diseases and the latter had not cancelled out, as it didn't in the case of Mair, the political nature of their deeds).

Brexit, even organized by means of unambiguous democratic rules and following the required constitutional procedure, was attached to direct or subjective violence, in Zizek'z terms. In the context of constitutional convulsion during Brexit, Jo Cox may be considered the death which would be prohibited according to our normative requirement regarding the legitimacy of the constitution­making.

In addition to that, the definitive constitutional status on the United Kingdom territorial integrity as a consequence of Brexit is still pending. As 50 years ago, though now without victims, Northern Ireland and the horizon of the unification of the island of Ireland became one of the main focuses of political stress. Although the text of the 1998 Good Friday Agreement (by which the bloody conflict between unionists and Irish nationalists began to be superseded) did not include many references to the European Union, it has been admitted by different actors that European Union membership facilitated the design of the agreement (Meehan, 2000; Skoutaris, 2020, p. 4). George Mitchell, for instance, a United States senator who performed as a mediator in the forging of the Good Friday Agreement, stated that the European Union played a part in thawing relations between the Republic of Ireland and the United Kingdom which enabled the Northern Ireland peace process.²⁵

The Agreement, although highlighting that Northern Ireland is an integral part of the United Kingdom, also recognized the right of the region to secede.²⁶ Such a particular status of Northern Ireland within the British constitutional framework might accordingly experience some variations in the context of Brexit. As Nikos Skoutaris pointed out (2020, p. 4), if the European Union coverage no longer provides a paradigm of power-sharing between the Irish nationalists and the unionists, a part of the segmented post-conflict society of Northern Ireland might reject the strengthening of more UK-centric notions of sovereignty derived from the withdrawal from Europe.

But constitutional change grounded on the Northern Irish question might be pushed due to more mundane reasons concerning the economy and, particularly, the status of the island of Ireland as a single economic unity that Brexit threatens.

the United Kingdom as a third country. The alternative to maintaining the EU single market and the Customs Union in Northern Island, the proposal for a “backstop” arrangement to avoid a hard border dividing the island of Ireland, became the sticking point of the Brexit negotiations and, in addition, was a determining factor in the evolution of British domestic politics.

British Prime Minister Theresa May was unable to find parliamentary support for her Brexit deal proposal, mainly due to the objections to the backstop. One of the main actors responsible for May's parliamentary defeats was the vote coming from the Northern Ireland unionists MPs of the Democratic Unionist Party (DUP), who rejected the Prime Minister's plan for the withdrawal from the EU precisely because such a plan foresaw a backstop arrangement that would effectively place Northern Ireland under the European Union regulations. The backstop solution was qualified by the Northern Irish unionist leader, Arlene Foster, as a European Union “annexation” of Northern Ireland.²⁷

The immediate reaction of the Prime Minister was to reopen the negotiations on the status of Northern Ireland in order to gain the support of the DUP MPs and the hard-line pro-Brexit Tories who feared that some part of the United Kingdom might remain within the European Customs Union. And May's struggle in breaking Brexit deadlock included the possibility of replacing the backstop in Northern Ireland by rewriting the 1998 Good Friday Agreement² The British nationalist hubris on the complete separation from the European Union was going to lead May's government to put at risk the main device that had ensured the peace in Northern Ireland for two decades. But instead of causing the collapse of the Good Friday Agreement, what collapsed was May's government itself. May's parliamentary weakness and the disagreements within the government on the way in which the Prime Minister was conducting the process of withdrawal from the Union (criticisms that included the resignation of several ministers) paved the way for May's nemesis and her succession by Boris Johnson.

Johnson, however, would also find in the Irish backstop a hard nut to crack. Johnson's arrangement for Northern Ireland was indeed not so distant from that proposed by May. The main change was provided by recognizing that de jure Northern Ireland remained within the United Kingdom Customs Union. But instead of threatening the Good Friday Agreement, Johnson sought political understanding with other actors involved in the peace process, mentioned in the Agreement, such as the Irish Taoiseach. Resulting from conversations with Leo Varadkar, it was emphasized that the differentiated treatment on the region concerning the application of EU law to keep the Irish border open could only be abandoned if the regional parliament decided so (or if a future arrangement supersedes it). Such a proposal, consequently, took into account the right of the self-determination of the Northern Irish people as provided in the Good Friday Agreement which includes that the governance of the region is based on the consent of both ethno-religious communities (Skoutaris, 2020, pp. 10 and 18). The Irish border remaining open to traffic and trade, and the new economic border between Britain and the European Union placed squarely in the Irish Sea, as foreseen under Johnson's proposal also deserved the criticism of the Irish

“New constitutionalism” & constituent power 209 unionist MPs of the DUP since they feared that leaving Northern Ireland open to cross-border traffic and trade with the Irish Republic (and with the European Union) would represent the first step to the political unification of the island and the permanent validity of EU law on Northern Irish soil.

In the first stance, Johnson succeeded in passing the bill on the new agreement between Great Britain and the EU with the modifications on the Irish backstop, but failed to fast-track a bill on the Agreements’ approval before October 31, 2019, which had been announced by the Prime Minister as the deadline for achieving Brexit. However, Johnson called for a general election in December 2019, in which he obtained a great success, and the Brexit bill was finally approved by the Commons in January 2020. The withdrawal of the United Kingdom from the European Union was finally consummated on January 31, 2020. But the EU-United Kingdom deal on Brexit still establishes a provisory regulation that might suffer some variations after the definitive relationship is arranged. In this vein, the final agreement might determine if the Northern Irish citizenry activates the mechanisms entailed in the Good Friday Agreement to express their consent to the political status of the region, with all sorts of political consequences that such a movement might represent.

It could be argued that, in fact, the invocation of the mechanisms included in the Good Friday Agreement, even if they would eventually lead to Irish reunification, would not represent a constitutional transformation since they are already part of the British constitutional framework. Such an observation might be acceptable but then it should be admitted that what signified the British constitutional transformation was the Good Friday Agreement itself, which was grounded on thousands of victims.²⁹ An eventual unification of the island of Ireland, even developed specifically in the years to come, would not cancel consequently my theses on the link between violence and constitutional transformations.

Apart from the question of Northern Ireland, Brexit opened the Scottish front as well. The withdrawal of the United Kingdom from the European Union instigated the claim for a second independence referendum in Scotland which, differently to what happened regarding the referendum held in 2014, is not likely to count with the consent of the British central authorities. The general election of December 2019 signified a victory for Boris Johnson and Brexit finally went ahead. But also, in December 2019, the Scottish National Party obtained a remarkable result by gaining eight seats and entrenching with 48 seats its third position in the House. For the Scottish Prime Minister, Nicola Sturgeon, her party’s success led to renewed calls for a secessionist referendum. For Boris Johnson, Scottish independence was a matter concluded by the defeat of the pro­independence side in 2014, at least for a generation.

In conclusion, watching political developments both in Northern Ireland and Scotland, it is doubtful that further British constitutional changes grounded on territorial amputation are going to be achieved fulfilling the no victims rule. Considering the circumstances of a political entity that once ruled over more than one-quarter of the Earth’s land surface, it is rather likely that the nationalistic tour de force between England and the peripheral sub-State nations within the United

Kingdom shall follow the usual coercive pattern that I have described in this book, when existential matters are at stake.