Brexit has posed a challenge to the law, both at domestic level and at EU level. In the last few months in the absence of a functioning parliament, a political crisis came close to a constitutional crisis and the law has been required to step in. As I argue in a new policy briefing published by the Bennett Institute, the law is being used in three ways.
First, it being used to shape the politics. Take the case of the Benn Act. In that crucial window in early September 2019 when parliament sat for a week before the first prorogation occurred, Parliament decided to use the time to do something innovative – and unique in recent times. With the aid of the (unconventional) Speaker, it took the powers for itself, using SO 24 (and amending SO 14), and enacted a piece of highly prescriptive legislation mandating the unwilling executive to ask for an extension to Article 50 if certain conditions had not been satisfied by 19 October 2019. The concern was, of course, that the government, apparently intent on securing a no-deal Brexit, was doing everything in its power, including closing parliament for 5 weeks, to run down the clock and leave with no deal on 31 October. The majority in parliament did not want that and so supported the Benn Act.
On 19 October Boris Johnson was indeed forced to write the letter to the EU requesting an extension. The EU granted a three month extension. And the Prime Minister has used that time to get a ‘one line’ bill through Parliament and (eventually) call an election. With hindsight, the Benn Act may have provided a major catalyst in the Brexit process. For a Prime Minister apparently determined to leave the EU on 31 October 2019, leaving with no deal was now impossible at domestic level because of the Benn Act (Article 50 did, of course, require the EU-27 to agree to any extension request). So the only alternative for Boris Johnson was to see if he could negotiate a deal with the EU – hence the key amendments to the Withdrawal Agreement, the so-called ‘frontstop’. Law shaping politics.
Second, the law is being used to constrain the politics. Take the case of the 250 odd words of Article 50 TEU which have placed considerable, if not total, constraint on the shape of events in the last three years. The separation of the divorce from the future negotiations, as (over)emphasised by the European Council Guidelines of April 2017, has proved to be the Achilles heel for the UK of the negotiations since 2017. It is rumoured that early in the process the UK took to the Commission its own legal opinion on how far a future trade deal could be negotiated during the divorce phase. The Commission refused to even consider it. ‘Our way or the highway’. Further, triggering Article 50 – and thus the ticking clock in Article 50(3) -put huge pressure on the negotiations. A no deal Brexit is serious for the economies of the UK and EU. Yet this was the direction of travel in the absence of agreeing and approving the Withdrawal Agreement. Similar issues will apply with the 11 month transition period which the UK will enter into, once the UK leaves the EU. This will constrain the ambition of the agreement the UK can enter into. Law constraining politics.
Third, the law is being used to respond to the politics. And the Miller/Cherry decision in the Supreme Court is only the start of law – or rather in the absence of a written constitution, the courts - responding to the politics. The next decade will be a challenging period for the judges. They will be asked to interpret the EU(W)A 2018, to work out what s.6 means about the account being taken of the case law of the Court of Justice. They will need to interpret and give effect to the 600 or so SIs that have been rushed through parliament using the s.8 Henry VIII powers. There will be mistakes and infelicities because they have been produced under pressure and without widespread consultation. Law responding to the politics.
Brexit has brought the relationship between law and politics into sharp focus and will put an increasing burden on the judges. There are, however, risks associated with this. Those voting leave were in part voting against a project seen as created by the elites for the benefit of the elites. They were voting against the supremacy of EU law. There will be severe resistance if the elites – which include lawyers – are seen as trying to recreate that system in some form at domestic level. The Prime Minister has noticed this. The Conservative manifesto says: ‘We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.’ Law – and the courts - are increasingly the battleground in the broader remain/leave struggle currently being fought out across the country. And the Prime Minister wants to put a stop to this.
This blog is a summary of the key findings from a new working paper titled: "Brexit and the [rule of] law", by Professor Catherine Barnard. Read the full paper here.
About the author
Catherine Barnard is a British legal scholar, who specialises in European Union, employment, and competition law. She has been Professor of European Union and Employment Law at the University of Cambridge since 2008. She has been a Fellow of Trinity College, Cambridge since 1996, and also serves as the college's senior tutor. Barnard studied law at Fitzwilliam College, Cambridge (MA Cantab), and the European University Institute (LLM). She earned a Doctor of Philosophy (PhD) from the University of Cambridge