In the second post in our series of collaborative posts with New South Wales Young Lawyers’ International Law Committee, Halyna Danylak examines the rule of law implications of the Brexit referendum.
Brexit and the rule of law
On 23 June 2016, the people of the United Kingdom voted to deliver the verdict on whether Britain should remain in the European Union. Now a matter for the history books, the ‘Leave’ camp won through, even if only by the barest of majorities. A Leave result seemed so remote only weeks ago; could this have been the definitive outcome?
Below, I consider Brexit through three different rule of law issues: the process, the arguments to Remain or Leave, and the implications of the Leave vote. Intelligent people have spent years formulating sophisticated arguments on whether Britain should Remain or Leave, and I want to understand the nuanced arguments on both sides through the prism of the rule of law.
The Leave vote won by a majority of 51.9% – this led many people in the Remain camp to question whether they really have a mandate. How could a critical decision be influenced by the barest of majorities?
Let us consider the question from a rule of law perspective.
The turning point of whether to stay in or leave the European Union has been a long time coming for the British people. Segments of the British population have been growing disenchanted with the EU membership obligations for years. In 2013, in an effort to neutralise the issue, Prime Minister David Cameron ran on an election platform promising to address the contentious issues relating to Britain’s EU membership, and to hold a referendum on whether to remain in or leave the EU.
After Cameron’s election victory, the British Parliament passed the European Union Referendum Act 2015, which made full provision for the particulars of how the referendum would operate. The Parliament agreed the outcome of the referendum would provide an advisory directive on how the Parliament should act on the matter. In other words, the outcome of the referendum was not legally binding. There was widespread agreement on the wording of the question, and by all accounts it was clear and simple to understand. A campaign period of 4 months ensued, where both sides had equal opportunity to put forward their respective arguments.
On the day of the referendum, voter turnout was incredibly high at 72.2%, put in perspective by the turnout of 66.1% of eligible voters at the 2015 UK general election, which had been the highest in 18 years.
Let’s consider how the Brexit process tracked against rule of law principles:
- The decision whether to Remain or Leave was made in an open and transparent way. Elected representatives of the people agreed to a referendum process and passed an Act of Parliament outlining how the referendum would work and how the Parliament would subsequently act.
- The Act of Parliament enabling the referendum was applied equally and fairly. Both sides had the opportunity to present their case, and robust processes were put in place to ensure an accurate voting result was delivered.
- The question on the ballot paper was clear and capable of being understood by all eligible voters.
So far, so good.
However, the close result has prompted questions around checks and balances, and, in particular, judicial review. Judicial review forms part of the separation of powers, which prevents the Executive from exercising power outside the limits of its power. Could the courts be brought in if the British Government were to act in an unreasonable way on such a significant issue, either by ignoring the outcome of the referendum, or by making a decision that some believe is not substantially in the public interest, namely leaving the EU?
Emeritus Professor of International Public Law at Cambridge University, Phillip Allot, has argued that:
It is possible that a court might take the view that it is arbitrary and unreasonable and disproportionate, in the legal sense of those words, to base the vastly important decision to withdraw from the EU on the opinion expressed by a bare majority of people taking part in a referendum provided for in an act of parliament – but an act of parliament that makes no provision for the legal effect of that referendum – thereby ignoring the opinion expressed by a very large minority.
Since article 50 of the Lisbon Treaty states withdrawal needs to be consistent with national law, then, as Professor Allot has said:
An unlawful decision under UK law [to leave the EU] would be invalid for the purposes of article 50.
Obviously this would be a difficult case to run, but it is nonetheless an interesting rule of law critique to ponder!
The Leave and Remain arguments
As mentioned earlier, the Brexit referendum was precipitated by voter dissatisfaction at how EU membership was serving the British people. Both camps were seeking a mandate to strengthen the rule of law: the Remain camp favoured further EU integration and more fully developing a transnational rule of law, while the Leave camp perceived the rule of law to better function if confined to a domestic sphere.
It is worth considering the strong rule of law points on both sides.
- EU law as it stands is a patchwork legal framework. It has been unevenly developed, focused on economic development and human rights. Europe knows this and had Britain voted to remain, it is likely there would have been a strong push to provide for further integration, improved regulation and law-making, including in areas such as the environment and social policy.
- A large percentage of British law mirrors EU law. The laws are clear and capable of being known by everyone – an important rule of law principle. A ‘Leave’ vote would stir up all sorts of temporary rule of law problems, such as the disentangling of British and EU law and rushes in new legislation. Not only would the people be unsure of the law, but it is unclear how it would be adjudicated on by the judiciary.
- EU law provides more explicit protection of human rights and the rule of law, compared with the “unwritten” British constitution.
- Britain will continue to abide by many European legislative standards for trade reasons. However, by leaving the EU, it will have less say in the construction of these standards, forcing itself into the position of having to abide by rules it has no say in creating.
- The biggest rule of law critique of EU institutions was their lack of accountability, especially the European Commission. The Commission is comprised of 28 Commissioners; one nominated by each Member State. It is the Executive arm of the EU and while it cannot foist laws on Member States, there are few checks and balances over it. Apart from the fact that it is not directly elected by the people, the Commission has been criticised for not being bound by the ‘yellow’ and ‘orange’ card system counties can use to express disagreement with proposed legislation.
- EU institutions have been argued to stifle the rule of law due to the need for all 28 member states in the European Council to agree on regulations in particular areas. This can be problematic both in terms of reaching consensus but also results in the watering down of good policy and law-making.
- For the rule of law to effectively function, people should be willingly guided by the law. Evidence that this was such a sticking point for the British people was that part of the Prime Minister’s ‘Remain’ platform included a comprehensive EU membership reform package.
- The fact that the institutions are not directly electable makes them particularly susceptible to lobbying from large multinationals. This has been highlighted as leading to policy agendas which reduce competition in the EU and prevent the full elected political spectrum from substantively contributing to law and policy-making.
Viewed through this prism, the Brexit result would appear to favour a return to domestic sovereignty and rule of law with a clear separation of powers. However, it doesn’t mean that transnational rule of law is falling into disuse or that the British people are not ready for it. Instead, it reflects the British people feel EU treaties and institutions do not offer the right model of transnational law for them. No doubt, the British people will continue their participation in the international legal system, albeit through other channels.
Implications of the Leave vote
The process to begin leaving the EU will be invoked once the British Government triggers article 50 of the Lisbon Treaty. However, there are certain rule of law hurdles Britain needs to overcome in the medium term. As I mentioned earlier, the conglomerate of EU laws that have morphed into British law will bring about uncertainty in terms of the complexities of disentanglement and interpretation.
Equally uncertain, is how the law might apply if the United Kingdom breaks apart. Scotland and Northern Ireland have indicated their strong preference to remain in the EU and both would first have to go through self-determination processes to acquire statehood, as only the UK is a state in the eyes of international law.
One thing is certain, it’s a thought-provoking time to be a rule of law observer.
NSWYL International Law Committee