As the Conservative MP and prospective scholar Chris Heaton-Harris reminds us, it is important when reflecting on Brexit within the academy to identify the potentially positive as well as the negative aspects of leaving the EU. Conor Gearty (LSE) scrutinises this notion of a happy Brexit, and outlines multiple areas in which the EU Withdrawal Bill will constitute a large transfer of power to the executive branch and may lead to the restriction of civil liberties. Brexit is Britain’s Vietnam: every rational person knows it is not going well, but no one with authority seems able to say so.
A happy Brexit?
Much of the discussion at this stage is necessarily speculative as ‘Brexit day’ has yet to arrive; even the provisions of the EU (Withdrawal Bill) currently before Parliament, intended to manage the change, may not reach the statute book in their final form. That said, and in the spirit of Heaton-Harris, two possible upsides present themselves. The ONS has reported a tangible rise in English (but only English) happiness since the Referendum vote, and it is hard not to see this as somehow causally connected. It is perfectly possible that economists overstate the link between material wealth and emotional and spiritual well-being. Major religions have over many centuries managed to make poor people feel good and there is no reason, in principle, why a well-told national story (one the English in general and Jacob Rees-Mogg in particular are good at: Agincourt; Churchill; heroic singularity etc.) might not work the same trick. And of course Brexit might deliver material gains in at least the medium term, so adding to the happiness one assumes, and perhaps eventually (or even immediately) drawing the citizens of the other Kingdoms into the happy net.
Civil liberties and Brexit
Second, there was and is undeniable strength from a civil liberties perspective in this idea of ‘taking back control’. Civil liberties are linked to but not quite the same as human rights, overlapping but more targeted than human rights. They are concerned more with process than outcome, ensuring a politically free society in which liberty is maximised (Gearty 2007). In theory, Brexit should achieve this, and perhaps it might two or three further revolutions down the line. In the short term however if the Bill currently before Parliament emerges in anything like its current shape the effect of Brexit will be a large transfer of power to the executive branch, unprecedented in modern history, and one that itself threatens to be of doubtful legality (if the courts choose to follow up on their recent threats to oversee the legitimacy of primary legislation).
The details behind this will appear in a longer version of this blog on my own website, to be published very soon. In summary and for now it is hard to argue with the wise words of Conservative MP Dominic Grieve, when he recently wrote that the Brexit bill ‘seeks to confer powers on the Government to carry out Brexit in breach of our constitutional principles, in a manner that no sovereign Parliament should allow.’ This is I think very much the civil libertarian position, one that distinguished civil liberties advocate David Davis MP (who fought a bye-election in 2008 on civil liberties, we should recall) would definitely share were he not the minister responsible for the measure.
Burking Poor Old Mrs Constitution, (Wikipedia), licenced under CC BY 4.0.
Now on to our broader, closely-related topic. The first point to make here is that causality is complicated with regard to anticipated breaches of human rights post Brexit. We cannot be sure not only what kind of Brexit we will get (if we get one at all) but if/when we do what causes what – this is not like the body count in Vietnam or the Gulf War, bloodily tangible evidence of impact. If any deaths, ill-health or misery are caused by Brexit it will prove perhaps harder to gauge this than the rise in happiness tracked by the Office of National Statistics. And if we do find a spike in such statistical indicators it might be because of unrelated events, or (also possible) unrelated policies of the government – for example on austerity: the rise to 5.2 million of the number of children living in poverty that is predicted over the next five years by the Institute of Fiscal Studies flows from non-Brexit-related government welfare cuts that bite deepest on households with young families. If there is a hard Brexit one thing we can be sure of is a shrinking of opportunity for UK citizens – in terms of education abroad; freedom of movement; access to health care when abroad, and much else. Just because we can’t yet see these people yet does not mean they will not exist.
The vote to keep the EU charter out of UK law was defeated last night (21 November) by just ten votes. So Clause 5(4) remains: ‘The Charter of Fundamental Rights is not part of domestic law on or after exit day.’ It’s true that the Charter has had an influence on EU and therefore domestic law, as David Davis well knows with his own case (albeit eventually lead by Tom Watson) having been successful before the European courts: The Davis and Watson case in the ECJ engaged articles 7, 8 and 11 in a way that certainly added value to the argument, and there are many other examples.
But all is not as it seems. The Explanatory Memorandum assures us (at para 99) that ‘The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill. References to the Charter in the domestic and CJEU case law which is being retained, are to be read as if they referred to the corresponding fundamental rights. ’ So it’s sort of still there. There is a complex discussion on this in letters exchanged between the chair of the Joint Committee on Human Rights Harriet Harman and David Davis, and much remains to be resolved as to what exactly is involved in applying principles but not rights. Perhaps so far as the Charter is concerned it is a bit like the impact of the EU on sovereignty which, as all will recall, the Brexit White Paper infamously summarised as follows: “Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.” (Para 2.1)
There are some guarantees in the EU (Withdrawal) Bill – in particular free movement directives transposed into UK law. But questions have been raised about the coherence of this, given that the stuff being transposed is entirely based on an assumption about EU membership. Perhaps there is no meaning to the transposition. Even if there is how can we be sure that these will not change, either before or after Brexit Day?
So far as the first is concerned, of course, EU citizens here are a ‘bargaining chip’ (© Liam Fox) and the whole point of Brexit is surely its nationalist force – it is land, not the people on it that matter, and certain people on that land matter more than others. An especial folly of those advocating Brexit is to pretend this is not the case, trying to have their nationalist cake and eat it with human rights instruments. This cannot work.
And with regard to the second, post-Brexit situation, no promises from Theresa May’s administration, even if reflected in law, are worth the paper they are written on – the beauty of parliamentary sovereignty is, as every first-year law student will tell you, that Parliament cannot bind its successors. And this is the case however grand the role of the UK supreme court is promised to be. Unless we have a sharp constitutional change, that body is also slave to Parliament’s will. This is what ‘taking back control’ looks like. Every now and then the reality of this surfaces only to be quickly glossed over, by those for whom such truths must be avoided at all costs.
As usual the Irish are simply ignored by the British Brexit-drivers
A particular subset of EU citizens are the Irish. As usual the Irish are simply ignored by the British Brexit-drivers: it is as though these advocates of withdrawal cannot get their heads around the changes achieved by Irish revolutionaries and their supporters in 1921. But how can the Common Travel Area revive if the frontier between the Republic of Ireland and the United Kingdom (including Northern Ireland) is an external EU border? How can people come and go between the two places – sooner or later this vast hole in the EU’s territorial integrity will have to be filled in. And what then? Will the UK retaliate against border controls in Dublin by imposing their own controls on the entry of the Irish into Britain and (even) Northern Ireland? Will the millions of Irish in the UK need to be registered? Will they be expelled to Ireland? Unfortunately, as we are beginning to see with so many of the implications of Brexit, wishing away a problem does not make it disappear. The Irish Taoiseach Leo Varadkar is right to be concerned, and insults from the British press and patronising jibes from senior Unionist politicians will not make the issue go away. But then as so often with the proponents of Brexit, hit the person, not the argument. But even the Mail is now vaguely having to acknowledge Ireland is a separate state and not – like Wales and Scotland still – required to take instruction from the English on Brexit.
The right to security
No better explanation of the negative impact here can be found than that set out by May in the only speech she gave during the whole referendum campaign, on 26 April 2016. Here is exactly what she said then:
The European Criminal Records Information System, Financial Intelligence Units, the Prisoner Transfer Framework, SIS II, Joint Investigation Teams, Prüm. These are all agreements that enable law enforcement agencies to cooperate and share information with one another in the fight against cross-border crime and terrorism. They help us to turn foreign criminals away at the border, prevent money laundering by terrorists and criminals, get foreign criminals out of our prisons and back to their home countries, investigate cases that cross borders, and share forensic data like DNA and fingerprinting much more quickly.
In the last year, we have been able to check the criminal records of foreign nationals more than 100,000 times. Checks such as these mean we have been able to deport more than 3,000 European nationals who posed a threat to the public. The police will soon be able to check DNA records for EU nationals in just fifteen minutes. Under the old system it took 143 days. Last year, the French used information exchanged through the Prüm agreement to locate one of the suspected perpetrators of the November attacks in Paris.
These are practical measures that promote effective cooperation between different European law enforcement organisations, and if we were not part of them Britain would be less safe.’
Social and environmental rights
It may well be that as Professor Merris Amos has observed, ‘the real diminution in human rights protection actually lies further down the track when retained EU law is converted into domestic law’.
Potential changes could reach any or all of the following, and more besides:
- Equal pay; maternity; holiday entitlements; health and safety protection; agency workers; TUPE
- Clean air (Heathrow), clean beaches, unpolluted waters
- Protection of the rural environment
- Food safety
These are policy areas which have been largely developed and protected by EU law, often in the teeth of UK hostility. It is asking a lot to believe that they are bound to remain the same, especially as there is a very strong drive towards a low-regulation, business-friendly environment to take the place of the ‘sclerotic’ EU on the UK’s departure. Powerful business leaders and politicians have been pushing such a view: people like James Dyson; Priti Patel and Martin Callanan, while the chair of the Institute of Directors Lady Barbara Judge has recently observed, arguing for change in this area, that ‘long maternity leave is bad for mothers’. We can expect much more of the same – and of course, change will be often capable of being brought about by ministerial order – and even those bits of the current bill which make that impossible might themselves be changed. We really are in a world of executive power.
Certainly, the EU takes this possibility of a plunge downmarket in search of prosperity at any cost seriously – see the remarks of Barnier on 20 November.
The Human Rights Act
An odd feature of the current crisis over Brexit is that the Act survives, as does membership of the Council of Europe, for now at any rate. It may well offer a degree of security against Brexit mayhem not only for European citizens but for local victims of serious intrusions into their rights as well. But the measure does not, of course, allow legislation to be overridden, and as we have seen the current Brexit Bill could change shape post-enactment to allow alteration of the Human Rights Act by ministerial order. May’s record on human rights is extreme, epitomised by her determination to leave the Council of Europe altogether. Expect more denunciations of human rights law as post-Brexit reality bites – ‘taking back control’ is a long war, fed by scapegoats for failure.
And what, in conclusion, of Labour? Rafael Behr is surely right when he wrote: Brexit Tories open the door to revolution. Corbynites walked through. A Labour government is a high probability at some point soon, and one led moreover by Corbyn and McDonnell. If it comes before Brexit it may not stop withdrawal but under Keir Starmer’s astute guidance it may produce a different negotiating atmosphere. If it comes after, what then for human rights? In the very old days people like myself (and old socialists like John McDonnell and Jeremy Corbyn – I am guessing without remembering confidently what their line was) were very suspicious of human rights as a tool with which the powerful could resist change. Will this be once again the case if private utilities and other companies fight back against nationalisation, using the property and due process rights they have under the Human Rights Act? Is forward into the next decade under Labour back to the 1970s so far as the war over human rights is concerned?
I will editorialise right here at the end. Brexit strikes me as our Vietnam. Everybody rational knows it is – how can I put it politely? – not going well. But no one with authority seems able to say so. Does anyone have the clout and the courage to go with it? Where is our Senator Eugene McCarthy?
This post represents the views of the author and not those of the Brexit blog, nor of the LSE.
Conor Gearty is Professor of Human Rights Law at the LSE.
Conor – with respect, this is a dreadful piece of work. It’s about as narrow minded as reading a Tommy Robinson piece on the merits of Islam. I’ve tried to highlight how bad it is by assessing it section by section, as you’ve done. I appreciate that wealthy academics are pretty much the epicentre of anti-brexit feeling, due to being a) being wealthy “I’m alright Jack!” and b) benefiting from EU grants, but seriously, this is poor work and demonstrates a severe lack of grasp of whats going on. We are all guilty of focusing too much on our own specialisms, but zoom out a little, and get some more context, please. I’ve noted before, you claim the government wishes to march towards little England – that is as condescending as it is false, and you should snap out of that mindset, as it clouds your judgement.
A happy Brexit? You dismiss the findings, you don’t go into them, and instead start talking about Agincourt et al – that’s odd, it’s a demonstration of your bias, and it’s a clear misinterpretation of the findings. It’s as useful as a survey that demonstrated people being less happy being twisted by the far right into somehow being reflective of rising immigration – if you can’t look at the data and analyse it properly, don’t do it at all.
Civil Liberties On this section, you offer a little more nuance – of course, it is a transfer of power to the executive, but it is not from the people, but a transfer from the EU, which in almost every definition more divorced from the public than the UK government. Of course, some civil liberties are protected by the EU (because they have that power) but there is no reason to think they will not be improved or enhanced by the UK government. Indeed, without the influence of growing parties of the solid left and right in Europe, that do not have a big civil liberties agenda, there is an argument that in time, our civil liberties will be enhanced. In short, if you think that the EU protects us then, then good luck attending a same sex wedding in Romania, Poland or Bulgaria, or indeed protesting forcefully against those countries regimes – The EU has aided civil liberties in those countries, but in advanced western nations, there is no real evidence that the advancements wouldn’t have occurred anyway, and certainly no rational evidence that it will be taken away.
Human Rights – you make completely false assumptions, saying If there is a hard Brexit one thing we can be sure of is a shrinking of opportunity for UK citizens – in terms of education abroad; freedom of movement; access to health care when abroad, and much else”. You don’t know that at all. It may well be that it becomes easier to gain work visas in Australia, Canada, the US, and we know that far more British citizens seek to move and work in these countries than EU nations. It may be that free movement is retained in the EU – that is within our grasp – our decision. It’s preposterous to imply that Brexit threats our human rights, any more so than the levers of control on this issue being held by the EU do. You well know that the 2019 EU elections may radically shift the EU’s agenda and influence – thankfully my children will now be beholden to decisions made by those groups.
EU Citizens – you gloss over this, not recognising that people want more managed immigration, and not considering the merits therein. Perhaps free movement from the EU is a good thing, perhaps free movement from the globe is good thing? Perhaps restrictions on both is a good thing? The point is, that we should decide. You state, quite rightly that “Parliament cannot bind its successors” yet you do not recognize that an alternative parliament/executive/legislative (the EU) binds our parliament – that is guaranteed and accepted by you, yet the far less guaranteed (I’d say unlikely) scenarios you present are highlighted as a major risk.
Irish – Of course, this is a clear and present issue that needs attention. But you give more attention to Ireland than the UK. The British people voted to leave the EU. Of course, that creates geopolitical issues, but you cannot give more respect to Ireland than the UK. If Catalonia votes to leave Spain, it creates issues for Spain, but it doesn’t mean Catalonians should be ignored. Your assessment here reeks of have a fundamental disrespect for the will of the British people, something you conversely seem very quick to respect for those of other nations – That demonstrates inconsistent and bias on your behalf. By the same token, you should oppose the Republic of Ireland because it contributed towards issues in the north. That would be unfair and imperialistic however, just as it’s unfair to gloss over Britains right to self determination. Recognise the issues by all means, but reign in the hysteria. You don’t have to like Brexit, but fanning the flames of Irish nationalists is not needed either.
Human Rights Act– our laws significantly exceed EU requirements, especially in respect of maternity leave. To imply that the removal of a guarantee far below what we currently receive makes us more vulnerable is an irrational argument. If anything, the far lower EU standards can be used by our government as justification for lessening maternity rights – that now cannot happen
Summary – “I will editorialise right here at the end. Brexit strikes me as our Vietnam. Everybody rational knows it is – how can I put it politely? – not going well.” I appreciate that even in the culture and context of anti-Brexit evangelism, you recognize this scores very highly on the histrionic-o-meter. Vietnam ended in a defeat for democracy, the loss of a millions of lives, and the end – for a period – of US internationalism. Brexit will do none of the above – It is a case of rejoining the global norm. There are far better analogies you could draw, although of course that would require an objective analysis, something preciously rare on those who’s heads are still in June 2016.
Brexit is not Trump and, and neither Trump or Brexit is fascism. However, just like the Trump voters and the NSDAP militants in the 30s, so it is that the Brexit voters, that slim majority, will have us to believe that they are on the receiving end of aggression by the “liberals”, those who opposed Brexit and, above all, the academics. You make it clear by accusing Connor of being wealthy and of talking from the point of view of Jack who’s alright, thanks. Apart from the fact that such accusation is preposterous in the light of the revelations about the money spent on propagandising for Brexit, money from people many of whom are fabulously wealthy and are tax avoiders, the fact is that your response doesn’t answer anything. I won’t go through all your “points” because they don’t deserve my time. I’ll just say that the fact that a large number of people in this country want to see immigration being reduced doesn’t mean that they are right, or that they are not deluded in thinking that we strike a deal with the EU and enforce such policy at the same time. In fact, it doesn’t even mean that they will get that. What it probably means is that they’ll get the same amount of immigrants, but this time it will be people coming in the country with no clearly defined legal rights, benefits, chances of a pension and generally protections, thus guaranteeing that what they tried to stop, the wage squeeze and the demolition of workers’ rights, it is now bound to happen. When talking about your base we are basically talking about people in a deep state of hypnosis. Furthermore, this misguided and knee jerk reaction by the slim majority doesn’t mean that Connor is wrong. As with regards to Ireland, I don’t really understand your point. Cheekily you are implying that that Connor cannot support Ireland in this case without being unpatriotic. That kind of argument is better left with trumps and the thugs of the 30s, thank you very much.
James – a great critique, well done.
It never ceases to amaze me the way that some remain supporters are suddenly so worried about parliamentary democracy, having watched it slip away to the EU over the last couple of decades. If a temporary strengthening of the executive is required to facilitate a smooth Brexit -s o be it. We will have the power to vote in a new government and change any laws we are not happy with in 2020.
Witness also the fuss over the animal sentience issue by people ignorant of the fact that it is already recognized in the UK Animal Welfare Act of 2006. As with many other rights, the idea that they will disappear once we leave the acquis is total nonsense.
There is a degree of pseudo religious fanaticism in the way some people are so virulently anti-brexit, in the face of nearly all solid-economic data (not prophecy). The predictions made before the vote have proven to be hogwash, but people stick to them.
The hysteria is equally disappointing, especially from an academic.
It shouldn’t be asking too much for an open mind and a holistic view of this topic – articles like this don’t reflect well on the LSE in my opinion
Thanks for a nice article. If we can gently set aside the polite trolling from your critics, I think they, like many others, including myself, are finding it hard to understand the difference between rights which are conferred by different mechanisms, e.g, by treaty, directive or different categories of parliamentary law. The Lisbon Treaty gave UK citizens some rights which Parliament could only modify by triggering article 50 and pulling out of the whole treaty. Some in Parliament clearly found this restriction in their actions troublesome.
It seems to me that the fundamentally different approach to rights and obligations in the rest of Europe (with clearer constitutional rights and obligations, such as having to carry an identity card) as compared to the UK has caused a lot of friction and misunderstanding.
“I will editorialise right here at the end. Brexit strikes me as our Vietnam. Everybody rational knows it is”
So anyone who doesn’t agree with your point of view, one which actually contains some slightly less than honest content and seems to want to ignore facts such as the the rise in UK happiness index which you don’t agree with because they don’t suit your opinion on Brexit, is irrational? And you’re a professor as well. Disgusting.
Vietnam is a wonderful country in East Asia, which contrary to the author is doing just fine. Brexit is a political decision about Britain’s relationship with the rest of the world. Not the same at all.
Ironically many Vietnamese people that I know were pro-Brexit, because it will remove the unfair discrimination between British citizens of European origin vs British citizens of Asian or African origin.
Prof writes a rather long blog about the EU without mentioning the single biggest item in the EU budget, and the number one reason for the Customs Union or zollverein being the way it is. How can this happen? Is he blind, deluded or obsessed.
For the record OECD economists Fournier and Johansson have examined the effects of subsidies on the wealth of a nation and found they reduced potential GDP by £6 for every £1 spent, but I wouldn’t expect an EU shill to know this.
It’s unilateral free trade and free movement ( NRTPF of course ) for me. And a raspberry to the prof.
Brexit IS like Vietnam in the sense that Internationalists have a domino theory that the International Order will be threatened and fall if the UK asserts its independence.
As with Vietnam, what Brexit is really about is self government, not some imagined ideological threat.
As with Vietnam, where a powerful cabal in the military industrial complex started to dominate policy, the response to Brexit is being dominated by Internationalists. Internationalism is the greatest threat to mankind in the 21st century. It is a new form of imperialism that seeks to elevate multinational corporations and banks above the people. It is fundamentally corrupt which is why it is supported avidly by both the Chinese and the EU.
Come on guys, you know that rampant Internationalism must be wrong. Every James Bond movie and action adventure is a battle against forces that we all know to be insane because they want global government. Surely you know in your bones that once Internationalism crosses the threshold into real power it will be dominated by the corrupt and evil.
Brexit is not like Vietnam. I understand that you are keen to mention Vietnam wherever and whenever you can. Vietnam in the morning, Vietnam in the afternoon, Vietnam in the loo, on the bus, around the dinner table, Vietnam in Ladbrokes, on the tube, Vietnam on your flight to Benidorm. Vietnam before you go to bed, Vietnam in bed, Vietnam after bed, Vietnam when you are brushing your teeth. But make no mistake, it was the Vietnamese who were fighting for their independence and UK and Brexit have nothing to do with that. If anything, the UK is now lovingly submitting itself to Master Markets as 24/7 live in slave. Forget Vietnam and get prepared.
Yes, George, but the corporates are already in control. It will be a long struggle.
There is a degree of pseudo religious fanaticism in the way some people are so virulently anti-brexit, in the face of nearly all solid-economic data (not prophecy). The predictions made before the vote have proven to be hogwash, but people stick to them.
The only bit of happiness that I can spread is the news that MEP Molly Scott Cato has successfully challenged David Davis’ under Article 10. Mrs Santa does exist & her name is Molly! The Govt are appealing the case, but DD will have to resign if he admits that he lied & withheld IA and he will have to resign if he admits that he was too incompetent to produce any. Now that will give me a bit of happiness.
The ONS’s claim that happiness has risen since the Referendum is BS! In another report, they claim that suicide is on the rise. I suppose you can’t be unhappy if you are dead! The ONS stats probably exclude people with protected characteristics, benefits claimants or rough sleepers. The ONS stats doesn’t include those who are victims of the Government’s “hostile environment”. See:
Attempted suicides by disability benefit claimants more than double after introduction of fit-to-work assessment
Independent, 28 December 2017
Happy New Year
“There is a degree of pseudo religious fanaticism in the way some people are so virulently anti-brexit, in the face of nearly all solid-economic data (not prophecy). The predictions made before the vote have proven to be hogwash, but people stick to them.”