‘Taking Back Control’: A Public Lawyer’s Perspective

Last month, I gave a talk on Brexit to my colleagues at Queens’ College. In light of recent events, I think it is worth reproducing here.

As a humble public lawyer I do not claim to be able to look into the hearts and minds of those who voted in the referendum on the United Kingdom’s membership of the European Union in June 2016.

Not for me sweeping claims about somewheres and anywheres; urban elites and the left behind; comfortable retirees and the just about managings.

One of the architects of the LEAVE campaign, Dominic Cummings, said the referendum was ‘men going at it blind’. My gifts of sight being altogether modest, I will leave the soul-gazing to others.

What interests me is the notion of ‘taking back control’, prominent in the weeks and months leading up to the vote, and since the result transformed from slogan to mantra, from rallying-cry to government policy – at Lancaster House and elsewhere the Prime Minister has been, to coin a phrase, perfectly clear: control of borders, control of laws, control of money.

If I turn a lawyerly eye to the European Union (Withdrawal) Act 2018, however, it appears that much of the control to be wrested from the bearhug of bureaucrats in Brussels will end up not in the hands of the elected representatives of the people but, in many instances, in the grasp of those who have never braved the judgement of the electorate in the cities and shires of Great Britain and Northern Ireland.

The first act of a Parliament freed from the shackles of the Treaties, a Leviathan rediscovering its lost sovereignty, will be to bring into United Kingdom law, without discrimination, the whole body of European Union law as of Brexit day. No fine toothcomb will be passed through the mass of Treaty provisions, regulations, directives and decisions – without even pausing to count how many there are, they will all be transplanted into the British legal system, zombie norms that will govern the country, yet all too real for the individuals and businesses subject to them.

It is true that the undead will not roam freely throughout the land forever more. Parliament – subject to the potentially stifling constraints of Britain’s future relationship with the European Union – will be free to change the law. Under the Withdrawal Act, however, the default is that changes, if any, will be made by ministers, who have been granted by section 8 a legislative power – a power to make regulations with the full force and effect of primary legislation – to remedy any ineffectiveness or deficiency in the operation of retained European Union law. Public lawyers call such provisions ‘Henry VIII Clauses’, after the monarch who had a penchant for proclamation: no compliment is intended.

In the Explanatory Notes when the Bill was introduced, Her Majesty’s Government suggested that the section 8 power could be used to strip away the rights of EU nationals resident in the UK, in the event of a ‘No Deal’ Brexit, as neat an illustration as one could hope for of the sweeping power to be placed in the hands of ministers, with minimal oversight from a Parliament already struggling to exercise its scrutiny functions over the annual flood of ministerial regulations, soon to become a deluge as the nation readies itself for life after European Union membership.

It is not difficult to imagine some large beasts making their way into British law amidst the torrent: there is nothing to stop ministers from using this Henry VIII clause to create new forms of civil liability or erect new government agencies.

To describe these regulations – these legislative regulations – as ministerial is generous, for they will be drafted, as all delegated legislation is, in windowless offices in Whitehall, far from the sunlight of public scrutiny.

Perhaps some of this ministerial legislation will be struck down by the courts as ultra vires. Not everything Whitehall and the Prime Minister’s Office thinks is a deficiency or an ineffectiveness will turn out, in the cold light of judicial oversight, to be a deficiency or an ineffectiveness within the meaning of the Act. For my part, I have grave doubts about the lawfulness of the threat made in the Explanatory Notes, doubts the courts might ultimately be called upon to address.

Indeed, the courts will have a leading role to play in the post-Brexit theatre. Not only will they be asked by individuals great and small to set the limits of ministerial legislative powers, but they will also give form to the zombie norms given half-life by Parliament.

Will the European Union law right of ‘free movement of persons’ continue to exist here when Britons themselves will no longer be able to travel and work freely throughout the EU? The courts will tell us. How much weight will be given in future to the decisions of the Court of Justice of the European Union in Luxembourg? The courts will tell us. What ‘general principles’ of European Union law and its Charter of Fundamental Rights will figure amongst the zombies, and will they be reanimated as European Union law develops further on the Continent? The courts will tell us. Will fundamental principles of the common law – the principles of legality, rationality and procedural propriety – trump or be subordinate to the zombie norms? The courts will tell us.

They will tell us, because they will be asked – by individuals Remainer and Leaver alike, by business and even by Her Majesty’s Government – to sort out the confusions and internal contradictions of Parliament’s Withdrawal Act. And the judges of these courts – though they are as far from being ‘Enemies of the People’ as you could imagine – are unelected and hardly accountable, yet will shape the landscape of Brexit Britain.

Indeed, the Supreme Court already has, in the Miller case, and is poised to deliver a judgment, between now and Christmas, of profound significance for the powers of the Scottish Parliament and, potentially, the future of an increasingly fragile Union.

It is hard, as the saying goes, to distinguish between a ray of sunshine and a Scotsman with a grievance, but Holyrood has plenty, not least because the scope of its competence post-Brexit will be shaped in Whitehall, not Westminster, London, not Lothian, as the Withdrawal Act gives ministers the power to give and take law-making power from the Scottish Parliament, to identify those zombie norms the Scots themselves may slay and those they may attack only with prior, written permission.

The result of the referendum, then, is to ‘take back control’ but to hand it promptly back to Brussels, to ministers and civil servants and to judges. Well, not quite promptly, for there will first be a transition period in which Britain has agreed to act as if it were a member of the European Union, without any of the rights accompanying membership status. If a withdrawal agreement is eventually, somehow, struck, the European Union (Withdrawal Agreement Implementation) Act will give legislative form to what has accurately been described as ‘vassal’ status.

Sadly, the difficulties of ‘taking back control’ reflect unattractive features of the contemporary British Constitution. Ministers are routinely given legislative power; indeed, some of the more egregious recent examples of skeletal legislation (such as the provisions triggering the ‘Prevent’ duty with which we are so familiar) give such authority to private or quasi-public bodies. Judges play a large role in the life of the nation, plugging large accountability gaps. Provision for devolution of power to the constituent parts of the United Kingdom has been made ad hoc, in piecemeal fashion, and the arrangements rely for their proper functioning on high levels of intergovernmental trust, which are currently lacking.

I do not wish to reopen old wounds, or the referendum debate, but simply to observe as a humble public lawyer that the control so proudly and loudly taken back will, if all continues as planned – and I use the word “planned” loosely – end up in the most unlikely hands.

My critique is not of Brexit itself, for one can easily imagine alternative Brexits, one initiating a bonfire of the regulations transforming the UK into Singapore-on-Thames, a deregulated colossus looming over mainland Europe, for instance, or one retaking the commanding heights of the economy for the State, ushering an era of comprehensive plans to tackle alienation and inequality, thereby triggering waves of radical reform across the Continent.

Whether support in the country exists for such schemes I neither know nor claim to know. I do not know what is in the hearts and minds of the British people. But it would not surprise me that somewheres and anywheres; urban elites and left behinds; comfortable retirees and just about managings harbour deep doubts about the current project of ‘taking back control’.

This content has been updated on November 15, 2018 at 11:11.