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House of Commons of the United Kingdom

Brexit and the Rule of Law

It took all of us by surprise, but Brexit is putatively happening. The leader of the European Commission, Jean-Claude Juncker aptly deadpanned: Brexit would not be “an amicable divorce”, but “it wasn’t exactly a tight romance to begin with.” A slender democratic majority of UK residents (including foreign residents- well done, civic rights) voted on June 23rd to exit the European Union. In Canada, Prime Minister Cameron’s words that ‘a clear majority’ of the UK voted to leave prompted anxious memories of our 1995 referendum, when a similarly close vote on Quebec separation prompted our Supreme Court to spell out, with the luxury of a vote narrowly favouring the status quo behind it, that a ‘clear majority’ required something more than 50 + 1.  (In a neat twist of rhetoric, the then-premier of Quebec, Jacques Parizeau, blamed the loss of his Leave campaign on “money and immigrants”.)

But a close vote in the other direction precludes the possibility of revisiting the rules of engagement without occasioning serious damage to the legitimacy of democratic will. The allegation that the majority who voted Leave were too dumb or misinformed to vote intelligently has disturbing implications for democracy. There is something aspirational in the democratic exercise of a referendum, in which citizens collectively contemplate and decide upon their future. Refusing to take seriously this legitimate expression of political will can only lead to cynicism and alienation. The British Parliament saw duly fit to put to the electorate a question which touches on a matter of national identity.  Both sides had ample opportunity to make their case to the public, the question has been answered, and there should be no wiggling out of Brexit.

The political and economic fallout from Brexit may or may not prove exaggerated; only the slow and laborious processes that lie ahead for the UK internally and at the EU will tell. From the broader perspective of the rule of law in the United Kingdom, though, Brexit’s effects are decidedly salutary.

The UK’s adoption of the European Communities Act, 1972 permits Parliamentary sovereignty to be limited by the EU apparatus which sprawls between Brussels, Luxembourg, and Strasbourg. Parliament may reassert its residual sovereignty only by its liberty to vote to leave the EU. The extent to which this is a formal and substantive dilution of Westminster governance merits emphasis. British Parliamentary supremacy, as given its most famous exegesis by A.V. Dicey, rests on the proposition that Parliament may make whichever laws it wishes, that no pre-existing law or principle constrains Parliament, and that Parliament’s dictates must be accepted as supreme by the courts and throughout the country. The fact that fundamental rights enjoy respect in the UK is a function of political, not legal constraint. The UK generally functions as a liberal and tolerant entity due to a culture of liberty and democracy. Interestingly, parliamentary will and popular democratic will are at odds in the case of Brexit: a majority of MPs in Parliament favoured the Remain option. It is widespread respect for democratic opinion and political commitments, rather than any binding law or principle, that demands Brexit be implemented.

The jostling of codified EU law and unwritten UK common law is a particularly consequential one, given the absence of a written constitution and the fact that the common law consists of bodies of doctrine developed by judges over the centuries. This is unlike the case of, say, Germany, which has a written Basic Law that permits it to declare with definitude when German law overrides EU law. The result is that UK lawmakers and courts are left with less certain leverage to declare that UK law may override EU law.

Moreover, the UK’s ratification of the European Communities Act, 1972 has resulted in a complex latticework of UK common law precedent and Acts of Parliament supplanted by EU laws—which often depart from UK law in both substance and interpretive framework.  EU law – not just regulatory minutiae, but fundamental guarantees of rights and freedoms such as that contained in the EU Charter of Fundamental Rights and rulings of the Court of Justice (CJEU) in Luxembourg – are binding on the United Kingdom and, by implication, Parliament. EU treaties permit penalties to be imposed on Member States who fail to follow CJEU rulings.

Adding another level of complexity is the fact that the UK is signatory to the European Convention on Human Rights and thus bound by rulings of the European Court of Human Rights (ECtHR) in Strasbourg. The Convention exists separately from EU institutions, but has a significant impact on EU decisions which bind the UK by function of its EU membership.  The UK can and does refuse to yield to ECtHR rulings: in 2006 the ECtHR ruled that UK law denying prisoners the right to vote breached the Convention, yet the UK law remains in place. Nonetheless, the conflicting imperatives of EU and UK law both erode sovereignty and cause legal confusion.

The current academic position is that UK common law principles remain intact due to their interpretive authority over EU texts, since EU law enters the UK by means of an Act of Parliament, in the form of the European Communities Act. Still, no degree of common law ‘grammar’ can undo the awkward transplant of EU legal ‘vocabulary’. Any way you look at it, the overall effect is to jumble the clarity and consistency of the world’s most sophisticated and historic common law tradition. Effective functioning of the rule of law requires that such law be promulgated and understood throughout the land that it governs.  Indeed, while it certainly cannot be denied that repeal of the 1972 European Communities Act will render annals of EU law imported into the UK inoperative, necessitating a mammoth legislative review and transition plan to prevent a legislative void, jurisprudentially this is a small price to pay for reclaiming a coherent and predictable legal order.

At the root of this all lies a democratic deficit. The power to initiate EU legislation rests with the European Commission—which is unelected and not directly accountable to the UK (or, indeed, any EU member-state).

It should be a salve to recognize that beneath the current surreal swirling of political back- and front-stabbing, market aftershocks, and fogginess surrounding Brexit’s next steps ahead, the fundamentals which make the United Kingdom remain in place, to wit: a free and tolerant political order, a stable and entrenched legal system, and a liberal trading economy.  From the perspective of the rule of law and UK sovereignty, when the snow-globe flurry dies down things will look clearer and more stable than ever.