The European Union Withdrawal Bill seeks to do something quite unprecedented in the constitutional history of the modern world. By withdrawing Britain from the EU, it will turn a protected constitution into an unprotected one.
This is much less appreciated than it should be, because—on the face of it—the Withdrawal Bill is as soothing as it can be, all about providing for continuity. The bill provides for the incorporation of 44 years of EU law into our domestic law, to avoid the creation of a great legal vacuum at the moment of Brexit, in March 2019. Only later, and working to the UK’s own timetable, will it then be for the British government and parliament to decide which retained EU laws to keep, which to modify, and which to repeal altogether.
There is nothing unprecedented in this process of incorporation in itself. During decolonisation, Britain conferred continuity on the legal systems of the ex-colonies by providing them with constitutions that incorporated British law into their own legal systems. The new states then decided which laws to retain and which to discard. The same process occurred with the 26 counties of Ireland which became the Irish Free State in 1922.
But there is a crucial difference between all these historical processes, and what we are now doing in withdrawing from the EU. They were moving from an uncodified and unprotected constitutional system—based on the sovereignty of the Westminster parliament—to codified and protected systems. We are doing the opposite—moving from a codified and protected system to an uncodified and unprotected one. We are moving also from a system in which our rights have been enlarged to one where some of our rights will in effect have been abolished. Indeed, there is one important area of legal protection, so-called equality law, where there will suddenly be at least the potential for most of the safeguards that British citizens today enjoy to be swept away (see Schona Jolly, overleaf).
Our entry into the EU transformed the British constitution. Far from returning us to the status quo ante, Brexit could yet provoke a constitutional clash that could transform it even more.
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Protected constitutions have evolved around the world over the last several centuries in order to restrain the caprice of the mighty, and guarantee certain liberties for the citizenry. The EU is a protected constitutional system in more than one sense. It is based on a separation of powers between its own various institutions, as well as territorially between the EU and the national member states. It is, moreover, a system in which all laws—including primary legislation—are subject to judicial review. The European Court of Justice (ECJ), as well as national courts, can disapply or annul legislation incompatible with any aspect of EU law, including in more recent years the EU’s Charter of Fundamental Rights. All this stands in contrast to the traditional British system of untrammelled sovereignty, where there was no such protection against the abuse of legislative power.
It is rare if not unprecedented for a democracy to exit from a major international human rights regime; no country has hitherto moved from a protected to an unprotected system. Such a process raises profound constitutional questions, and opens up many gaps. Some of the gaps could instead be filled by the judges. And if that happens, Brexit will increase the danger of a clash between the judges and parliament. A clash which could, perhaps, finally prompt a wider and long codification of our constitution.
Joining the European Communities in 1973 involved a profound shift in power from parliament and the executive to the courts. The ECJ had developed, even before British entry, two fundamental doctrines—the doctrine of direct effect and the doctrine of the supremacy of European law. These rested on the presumption that, in acceding to the European Communities, the legislatures of the member states had agreed to restrict their competence in areas where the Communities had acted. In consequence, Community law created rights for individuals which national courts and tribunals were under a duty to directly enforce. Furthermore, and in a stark break with British tradition, the freedom of parliament to pass whatever laws it liked, was checked. In the event of a conflict between Community law and the law of a member state, Community law was to take precedence. It became the duty of every national court and tribunal to enforce Community law and to disapply any conflicting national law. In relation to EU law the logical implication, therefore, was that a litigant could go to a domestic court in Britain to have a statutory provision enacted by Westminster set aside.
Looking back, the legal position was clear from the off, but it took some time for the full implications to dawn on the UK and its politicians. Only with the landmark 1991 Factortame case, did it become impossible to miss, when the Law Lords for the first time disapplied part of a statute, the Merchant Shipping Act 1988, as being in conflict with Community law.
It followed that, while Britain remained within the EU, Westminster was a legislature of limited competence. Europe, therefore, altered the balance of power in our system of government in favour of the British judiciary, at the expense of parliament and government; at the same time, the sovereignty of the nation and its parliament was limited by the supremacy of EU law as decided by British judges. The same sort of shifts occurred in all the member states, but it was particularly important in Britain, which had no history of judicial review of primary legislation.
But this shift of power to the judiciary did not come out of nowhere. It was in accordance with constitutional trends in Britain in the latter part of the 20th century. Even before we entered the European Community in 1973, judges had been taking a more activist stance towards the executive, abandoning the traditional attitude of judicial deference by developing a system of administrative law, which increasingly allowed for the judicial review of secondary laws made by public authorities including ministers.
Somewhat later, the Human Rights Act of 1998 had implied a more active role for the courts which came under a duty to interpret legislation, wherever possible, so that it conformed to the European Convention of Human Rights. Confusingly, this has an older and distinct genesis from the European Communities, and it continues to apply to much more of the continent than the EU. But the Act was of a piece with the EU, in the sense that it made Britain more of a constitutional state. It contained hard checks on the executive and softer checks on parliament which made the way we were governed more rule-bound, all the more so because ministers have thus far tended to respect the spirit of the law, rather than exploit its technical loopholes. In a lecture in 2005, the late Lord Steyn, a Law Lord, declared that: “In the development of our country towards becoming a true constitutional state the coming into force of the Human Rights Act was a landmark… transform[ing] our country into a rights-based democracy.”
More pertinently in the Brexit context, the transformation of Britain into a rights-based democracy was again strengthened by the EU’s Charter of Fundamental Rights, which came into force in 2009. The Charter includes and incorporates the pre-existing European Convention protections, but it also goes further and extends many rights that are not in the Convention. Among these rights are the Article 3 right to the integrity of the person, which prohibits eugenic practices; the Article 8 right protecting personal data and with a right of access to such data; the Article 13 right to academic freedom; the Article 14 right to vocational and continual training; the Article 21 right to non-discrimination on various grounds including very specifically, and unlike in the Convention, on grounds of “sexual orientation”; the Article 24 rights of the child; and the Article 25 rights of the elderly. In some cases, a Convention right is considerably widened in application: take the Article 47 right to a fair trial and an effective remedy, which also provides for a right to a fair hearing that would almost certainly apply in tribunals, such as those that deal with immigration, as well as to the courts.
Armed with the Charter, the ECJ can perhaps now be compared to the United States Supreme Court in terms of the breadth of its powers; and—remember—the national courts of the member states are also required to disapply primary legislation and quash secondary legislation if they find it incompatible with a directly effective Charter provision where the national legislation lies within the scope of EU law.
There has, however, been a good deal of confusion about the status of the Charter in Britain—confusions which are now clouding the country’s understanding of what Brexit could do to its rights. This arose because Britain did not incorporate the Charter into domestic law, and, together with Poland, secured what ministers claimed was an opt-out in Protocol 30, which purported to ensure that the Charter would not create new rights or create new powers for the courts to enforce them. Tony Blair told the Commons in 2007, “It is absolutely clear that we have an opt-out from the charter.”
Your right to equality is currently protected. After Brexit it won’t be
But Protocol 30 did not give Britain a general opt-out from the Charter. In the NS case in December 2011, the ECJ ruled that the Protocol “was not intended to exempt the Republic of Poland or the United Kingdom from the duty to comply with the provisions of the Charter, nor to prevent a court of one of those Member States from ensuring compliance with those provisions.” From the point of view of the EU, it would have appeared odd if an opt-out were possible from what was seen as a fundamental constitutional document. And indeed, developments in the British courts have shown how the Charter has made a real difference.
The Charter has been used by British judges to do what the softer protections in the Human Rights Act do not allow them to do—namely disapplying parts of Westminster statutes because they are in conflict with basic rights. For example, in one case involving Google it was ruled that part of the 1998 Data Protection Act should be set aside because it breached Charter rights regarding privacy, family life and data protection.
Even more strikingly, in 2014, two backbench MPs, Tom Watson, now deputy leader of the Labour Party, and David Davis, now Secretary of State for Exiting the European Union no less, brought proceedings to secure the disapplication of the Data Retention and Investigatory Powers Act 2014 as contrary to the Charter, arguing that it would have a deleterious effect on the ability of an MP to communicate confidentially to his constituents.
Watson and Davis invoked the Charter, rather than the Human Rights Act, precisely because the Charter provided for greater protection than the Convention. It is ironic that Davis, a leading Brexiteer, brought proceedings to question the validity of an Act of Parliament on the grounds that it offended against European Union principles! But it happened. And the High Court found in favour of him and Watson. The Court of Appeal referred the issue to the ECJ, which held that the Act as a whole was contrary to Articles 7, 8 and 11 of the Charter, providing for freedom of expression and information. The effect of the Charter, therefore, was to allow the High Court to render invalid those parts of a Westminster statute that were inconsistent with EU law.
So the question arises: do the hardline Brexiteers seek to argue that such judgments ought to be reversed? In a world that is increasingly alert to the risk of Big Tech morphing into Big Brother, it would be a tough sell. But if they are not prepared to make it then how, exactly, can they maintain that the Charter should be thought of as hazardous? And what dangers, exactly, can they point to as being averted by its repeal?
Despite the claims of an opt-out, the Charter has provided new and stronger protection of rights. That is the legal reality, and so one might hope that the EU Withdrawal Bill would enshrine the rights it protects in UK law at the point of Brexit, as it is doing with other EU laws. But this is not happening, and our rights will be weaker as a result. The charter will no longer apply domestically in interpreting and applying retained EU law.
Scrappily and confusingly, the Withdrawal Bill purports to provide for the preservation post-Brexit of “fundamental rights or principles which exist irrespective of the Charter,” without specifying what “fundamental rights” actually are. There is no easy way to clear things up, because the apparently obvious answer of incorporating the Charter as a whole would not make sense in the context of Brexit: the Charter is, after all, addressed to “the institutions, bodies, offices and agencies of the Union and its Member States,” and enshrines some things, such as the right to vote in European Parliament elections, which will become irrelevant.
But many rights in the Charter certainly will remain relevant to Britain. And there are others, such as that of the rights of the child, where the Charter’s effect is to give extra clout to United Nations conventions which Britain has ratified but not incorporated into our system of law. So what to do?
The government has promised that all EU-derived rights in domestic law—or some variant of them—will be preserved after Brexit, and that it will present to parliament a list of the rights in the Charter to show that they are all in fact being secured in domestic law. But a list of rights presented by a minister is hardly a substitute for a codification of rights protected by the judicial review of primary legislation such as is secured by the Charter. The crucial legal remedy provided by the Charter will be lost: the courts will no longer be able to rule that a particular statute is unlawful, or quash an action on the basis that legislation is not compatible with Charter rights, or any domestic provisions which replicate them. That ultimate legal remedy for a breach of Charter rights will no longer be available.
In addition, the rights guaranteed by the Charter will in future be at the mercy of a sovereign parliament which can, at any stage, amend or delete them. The rights may, in some way, be incorporated into our law, but their status will be radically different. They will no longer be protected rights in the full and real sense. And since rights that aren’t protected aren’t really rights at all, there can be little doubt that an important protection given by the Charter will be lost after Brexit.
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It may seem likely from all this, that the consequence of Brexit is for us to revert to our constitutional situation before 1973—whereby the sovereignty of parliament was the dominant, if not our only, constitutional principle. We will be engaged in a process, not of entrenchment, as was the case in 1973, but a process of disentrenchment, quite unique in the democratic world. Just as our entry into the European Community strengthened the courts at the expense of parliament and the executive, so Brexit could reverse that process by strengthening parliament and the executive at the expense of the courts. In practice, in our political system where powers are not separated, the view of the government generally coincides with the majority in the elected house. So Brexit is likely to increase the power of government, and not parliament.
Restoring the sovereignty of parliament was of course a major political aim of the Brexiteers. But “taking back control” will mean not only that parliament will be taking back control from the EU and from the ECJ. It will also mean parliament and, still more, the government “taking back control” from our own national courts as well as from EU courts. Very few referendum voters can have known they were voting for that.
Because the Charter of Fundamental Rights is not being retained, Brexit will mean a reduction in our rights and the means of their enforcement. Our rights will once again become entirely dependent on parliament, whose sovereignty is being restored. And that direction of travel goes very much against that in most democracies, where the trend has long been for rights protection to be enlarged, rather than abolished.
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The looming withdrawal of rights in Britain is so unusual, it is hard to see how it will play out. In parallel, and also very much against the tide, the London government will find itself free of various checks and balances, that are currently provided by the European institutions and the system of EU law. An unshackled executive and a diminished system of rights is a troubling combination. But that is what Brexit will create, unless our judges become more creative. If they do so, the consequences could be momentous.
Countries normally adopt codified constitutions not as a result of a process of public debate or ratiocination, but after a break in constitutional continuity, either when a colony achieves independence—as with the US in 1776, Norway in 1814 or India in 1947—or to mark a change of regime following defeat in war, as with Germany in 1949 and Italy in 1947. These breaks in continuity give rise to a constitutional moment and a new beginning. One of the reasons why Britain lacks a codified constitution is that we have never had such a constitutional moment. We seem never to have begun as a nation; instead we have evolved. We have not since Roman times been a colony, and we have not altered our fundamental regime since the Glorious Revolution in the 17th century.
But Brexit will be a new beginning, and it will, in a sense mark a change of regime, albeit a peaceful one—the ending of that short-lived order, lasting from 1973 to 2019 during which Britain was a member of the European Communities and then of the EU, and was in consequence bound by its laws. The tide of history is towards greater protections, but the coming change threatens to make us more lawless. And it may well be that a country, which wasn’t primed for this sort of change, will not be content with that. It is thus just possible that Brexit will prove to be that break in continuity that will herald our own constitutional moment, and prompt us to do what we should have done long ago, and finally get our own legal protections in order.
