Brexit Britain destroying the rule of law
Brexit is a contest between a majoritarian system of government, in which a simple majority can enact any law, regardless of the impact on individual citizens’ rights, and a constitutional system in which the fundamental rights of citizens can only be changed through broadly-based consent.
The lack of robust constitutional defence for citizens’ rights is a recurring theme in various legal challenges in the UK courts since 2016. English courts have delivered a consistent view that Parliament is the sovereign power. It alone can decide on whatever course of action it likes and anyone whose rights are threatened or diminished has little choice but to accept this, or move elsewhere.
Most modern democracies, including the USA and the EU states, have written constitutions, defining citizens’ rights and the limits of government power. The UK’s unwritten constitution imposes few limits on government action. EU law offered a proxy for constitutional stability, during the years of UK membership. The EU framework will be replaced by a constitutional vacuum after Brexit. The Conservative party, with a large majority in parliament, may soon be free to enact any measure it wishes, a deeply worrying development.
This is especially worrying for internationally mobile people, citizens of Northern Ireland, Irish citizens living in border areas, EU citizens and investors who rely on the consistent, predictable rule of law. The conservative government has declared its intention of diverging from EU law in unpredictable ways, driven by populist politics, after Brexit. Citizens and investors who may have relied on the stable foundations of EU law must wonder what the future has in store for them in a fractured UK, lacking a robust constitutional framework.
The UK plans to throw off any obligations to observe EU law or to maintain the basic rights of citizens, workers, investors, businesses and the environment. Any prior legal commitments by the UK government can be undone by a simple majority in parliament. A case in point concerns the settled status provision for EU citizens. This has been enacted in UK law but it can also be removed, diluted or amended on a whim, by a simple majority in parliament, with no reference to fundamental law.
The right of citizens to appeal to common law and ancient precedents was raised in several recent cases, notably the case of Wilson v Prime Minister at the Court of Appeal on 21st February 2019. Government lawyers argued that parliamentary decisions trump common law and precedent. This view was upheld by judges in the Wilson case, and others.
This might seem like a matter of little interest to most people but every citizen should be concerned that, once the UK leaves the EU, the conservative government will be free to do as it pleases. Any individual who feels aggrieved at their rights being trampled must accept their predicament as “the will of the people”.
Internationally mobile investors are unlikely to accept an unpredictable future and laws that can be changed at a whim. Britain’s reputation as a place to settle international legal disputes is threatened by departure from EU law, in the absence of a robust constitutional framework. Citizens in Northern Ireland have very real concerns. The conservative government is destroying the foundations of the rule of law in the UK with no proposals for a replacement. Citizens who aren’t already worried by this may soon have cause to do so.