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26th February 2020
External Relations & Trade Institutional law

Op-Ed: “Oh, to be in England now that Brexit’s there: some personal literary reflections” by Kieran Bradley

I arrive in England a few days before the end of January. To my surprise, the main topic of conversation is the Withdrawal Agreement. Yes, you know: taking back control of our money, of our (Canadian) borders and from our (in-)laws. ‘Megxit‘ is the word on everyone’s lips and in every medium: traditional, social, virtual, and even political. So now we know who should have been in charge of the United Kingdom’s Brexit negotiations: no ifs, no buts, no threatening to die in a ditch, a deal done and dusted in ten days, and the future relationship sorted too.

A few sleeps later, the moment of British withdrawal from the European Union at last comes to pass. In the battle of the literary giants, Donne (‘no man is an island’) has been bested by Shakespeare (‘this sceptred isle … this blessed plot, this earth, this realm, this England’). In London, the occasion was marked by a countdown, with giant white numbers projected onto the façade of No. 10 Downing Street on a red, white and blue background, with speeches and singing in Parliament Square led by Nigel ‘You’re not laughing now’ Farage, and a recording of the chimes of Big Ben (the iconic bell has been hors de combat for repairs for several years, producing a pleasing ambivalence about the character of the Brexit bongs). I am, however, in a sleepy market town an hour north of London, where during the day tourists jostle with students for space on historic footpaths, and both are at risk of their lives from passing cyclists, rushing headlong like electrons, all entitlement and heedless velocity. In the distance, I hear a few desultory fireworks, but otherwise the night-time streets are empty, save for a few carousers making their way home at the top of their voices. Where, I ask myself, is a Brexit party when you need one?

The following morning dawns foggy and damp, as if nothing had happened. And in one way, nothing much has, yet. Now we are in what the European Union calls the ‘transition period’ and which the United Kingdom government, somewhat mulishly, insists on calling the ‘implementation period’, or in its exit legislation, the ‘IP’. With commendable tact, the first references in the Withdrawal Agreement, in both the preamble and the substantive provisions, are to ‘the transition or implementation period’; thereafter tact runs out, it is just ‘the transition period’. ‘Implementation’ of what? Global Britain? Empire redivivus in the Anglosphere? First we take Sunderland, then we take Manhattan?

But in another way, all is changed, changed utterly. Until 11 pm on 31 January, the United Kingdom did have a written constitution (with a small ‘c’), for the conduct of part – and not a trivial part – of its economic, social, and even political and legal life; a written constitution, respect for which is subject to external supervision, investigation, condemnation and, if need be, the imposition by an international judicial authority of measures of enforcement. This is a constitution which seeks to guarantee, amongst other fundamental values, the rule of law, of which the independence of the judiciary is an essential element, as the Court of Justice of the European Union has repeatedly held in its painful rulings on judicial reform in Poland and Hungary.

If the British government is to be believed, it was the irksome nature, and the very efficaciousness, of the external supervision by the Court of Justice which justified, at least in part, the United Kingdom’s exit from the European Union. Bringing an end to the jurisdiction in the United Kingdom of the Court of Justice’s jurisdiction became a central objective of the Brexit process, and a ‘red line’ in the negotiations on the Withdrawal Agreement. In its White Paper of February 2017, a sort of ‘explainer’ of the referendum result, the government vaunts the virtues of the WTO dispute settlement system, where ‘the outcome was prescribed, but not the means’, whereas in the EU system, ‘there is a right to an effective remedy from a judicial body’. Obviously the latter is to be avoided at all costs.

It is true that a Withdrawal Agreement has been concluded, and that it reserves an important role for the Court of Justice in ensuring its provisions are respected, including and especially those concerning the Irish Backstop and the rights of the more than three million EU citizens resident in the United Kingdom. As regards the latter, for example, the Court of Justice will be able to provide preliminary rulings at the behest of the United Kingdom courts for the next ten years or so. Given that the referendum was essentially won on matters of immigration policy, the possibility of such outsourced judicial review is clearly of fundamental importance, not least psychologically, to those concerned. In everyday life, nonetheless, the situation of the EU citizens in the United Kingdom will depend to a significant extent on the will and the capacity of the local judiciary to enforce the provisions of the Agreement and of EU law which it applies in the United Kingdom.

Already the auguries are not good. It is widely reported, for example, that the Prime Minister has ordered his staff to find a way to ‘get around’ the Ireland Protocol and the necessity for border checks on goods moving from Great Britain to Northern Ireland. Of course, this may be more of a tactical manoeuvre in the run-up to the big prize, the future relations/trade plus agreement, than a concrete intention, but it conjures up the possibility that the government may wish to use the Backstop and citizens’ rights as bargaining chips in the negotiations which are about to start. In the land of untrammelled parliamentary sovereignty, how long and how far could the courts hold out against a determined executive?

There is, moreover, a lingering tendency in the Bruxembourg bubble to view the United Kingdom in its Brexit mode as if it were a slightly wayward Member State which will in the end play fair with EU rules and values; to do otherwise would simply not be cricket. Thus in September 2018, for example, the Court of Justice ruled that the United Kingdom could be trusted to apply, to an accused person surrendered under a European Arrest Warrant, essentially the same rules as a Member State would, even if the United Kingdom had left the EU without any agreement. However, as the chief British government negotiator David Frost informed his Brussels audience on 17 February, accepting the strictures of an EU-designed level playing field would defeat the ‘point of the whole project’ of leaving the European Union. By that token, unless legally obliged to do so, respecting EU rules on prisoners’ rights, a subject on which the United Kingdom Supreme Court has clashed with the European Court of Human Rights in the past, and more generally applying rules of EU law, could also be seen as defeating the ‘point of the whole project’.

But there is a more fundamental danger lurking in the undergrowth. Whether or not the impetus for Brexit was born of inchoate illiberalism, at the very least it fed off and nourished a growing impatience in some rather powerful quarters with the rule of law and the authority of judicial decisions. The most grotesque incident was the personal, indeed personalised, attack on the judges of the High Court in London who handed down the first Miller judgment, the so-called ‘enemies of the people’. The incident is grotesque less because of the lack of moderation of sections of the British press, itself hardly news, than the lack of an appropriate response by the Lord Chancellor of the day, who is under an explicit statutory duty to defend the independence of the judiciary. Having initially failed to act at all, the following day Liz Truss could only manage a few platitudes on the importance of the rule of law, before blurting out what was really on her mind, the government’s intention to appeal against the judgment.

More recently, the Prime Minister, no less, took it upon himself to criticise the unanimous ruling of an eleven-judge Supreme Court in the second Miller proceedings, not so much for the result, which was a stinging personal rebuke (though the Supreme Court avoided the question of malicious intent), as for the Court’s temerity in dealing with ‘a political question at a time of great national controversy’. In his view, those who had initiated the proceedings were not citizens seeking to uphold the British constitution (they included a large number of MPs and members of the House of Lords), but people wanting to ‘frustrate Brexit and stop this country coming out of the EU’. The criticism of the courts was carried over into the manifesto of the Conservative Party for the December elections, which promises that the new government will ensure judicial review ‘is not abused to conduct politics by another means or to create needless delays’ (for opposing views on the proposal, see Russell and Renwick, The government’s proposed constitution, democracy and rights commission: what, why and how? – UK in a changing Europe, 14 February 2020, and Ekins, Protecting the Constitution, 28 December 2019). The current Lord Chancellor has explained that the promised Constitution, Democracy and Rights Commission would allow some ‘constitutional plumbing’; this is generally understood as govspeak for curbing judicial review of acts of the government. Lord Sumption, a former law Lord, has described such an initiative as ‘a recipe for tyranny’.

In case there should be any doubts as to the government’s intentions, on 13 February, Johnson appointed as Attorney General Suella Braverman, who just weeks before had penned a philippic against the senior judiciary. Fingering the Miller cases as examples, she opined that ‘the political has been captured by the legal. Decisions of an executive, legislative and democratic nature have been assumed by our courts’. The shadow Attorney General for his part was in no doubt that the government is motivated by Miller II: ‘It’s like losing 11-nil in the cup final and coming with a baseball bat for the referee’.

For now, it is too early to know whether the government will wield a baseball bat, a conductor’s baton, or a magic wand. There’s a long way to go from a manifesto promise to the reality of any ‘constitutional plumbing’. The last round of constitutional reform in the United Kingdom under the Blair government has been criticised as piecemeal, and for having failed to go back to first principles; properly conducted, the Constitutional Commission exercise could even turn out to be a boon. Still, if the reforms do lead to some form of rule of law backsliding, such as gross political interference in judicial appointments, or the exclusion of judicial review of even egregiously illegal government action, one thing is for sure: the European Union will not be able to step in – that constitutional backstop has gone.

In which case, dear England, never send to know for whom the bell tolls …

 

Kieran Bradley is a former Special Adviser to the Court of Justice of the European Union on Brexit; the views expressed are exclusively personal to the author, and do not represent the views of the Court of Justice or of any member thereof.

 

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