The answer is probably. There are ways in which Brexit avoids extreme constitutional difficulties, but they are becoming trickier to spot.
First there is the nations problem. This has been overplayed in the media, but is still a real issue. Putting aside Scottish independence concerns, it appears that it’s already nailed on that Northern Ireland is going to have to get some sort of a special deal in order to avoid real problems there. And when you give the Northern Irish a special deal, it begs the question of why the Scots and Welsh can’t get one as well. That brings you full circle to the English and why everyone else gets a special deal and they don’t.
But much more constitutionally troublesome is how the final deal of what emerges from Brexit comes about – and the role of both the House of Commons and the House of Lords In that process. If Number 10 ends up needing approval from parliament in order to trigger Article 50, the passage through the House of Commons is basic enough, constitutionally speaking. It’s the Lords that raises the possibility of real issues. If the Lords wants to slow it down for a while or slow it down and make major changes to the government’s negotiating position, what will people say about an unelected house thwarting the will of the people? It’s a referendum result versus the whole concept of the Lords existence as a legislative body in that case. After all, one could argue that the way the Lords is set up is just perfect for something like Brexit – when the government of the day gets everyone into a pickle it can’t solve itself. The revising chamber to the fore, no?
Will we see Brexiteer Tory MPs, the very same ones who argued so vociferously to retain an unelected second chamber, now arguing the exact reverse? Perhaps abolition of the House of Lords even?
Even if the government can trigger article 50 by itself, it’s been anounced that parliament will get a vote on the final deal. What happens if parliament votes against it? Better still, what if the House of Lords rejects it? Does the government wait it out and use the Parliament Act? That takes a long time – what happens during this period? Would Britain be out of the EU with no deal at all?
Brexit poses a massive amount of constitutional problems that have barely begun to be talked about. They could all be got round possibly, but there needs to be a debate about it now, right now, one that goes beyond “you can’t stifle the will of the people, sir!” polemics.