• Patrick Cox

Post-Brexit laws: confusion reigns

Given the opportunity to actually decide the legal direction of the country, the Brexiteers are clueless

An anti-Brexit protester waves an EU flag outside the UK Supreme Court building in London
Having left the EU, on which laws will top judges be able to make rulings?

'Take back control'. It's a powerful slogan that evoked a sense of the frustrated ambition, and a yearning for justice. A lot of debate during the 2016 referendum campaign focused around issues of legal sovereignty and the democratic deficit that membership of the EU entailed. Although most of the people who voted leave doubtless cared little for the constitutional dilemmas or the finer legal arguments the issues were and are real, and deserved a hearing. As Lord Neuberger, the most senior judge in the country, pointed out today, the government - stuffed with Leave campaigners - hasn't given any indication of what decisions to take now the choices have to be made. It's the most damning inditement of the Brexit debacle - and that's saying something.

Firstly a little context on sovereignty.

The charge against the EU in the referendum campaign - and for may years previously - was that being a member of the EU undermined the UK's political sovereignty. This was a powerful charge because essentially it was a true - at least on a particular understanding of what national political sovereignty is. Put simply, a country's sovereignty is its ability or right to control its own territory, notably in terms of controlling its own borders, money and laws. Part of joining the EEC (and latterly the EU post-Maastricht) was that some of the UK's political sovereignty was 'lent' to the EU institutions in Brussels. In theory, the UK was still a politically sovereign nation but in some legal and political areas - social policy and immigration policy most notably - EU law took precedence over UK-made law. That's because the UK's own parliament had passed the 1972 European Communities Act agreeing to that arrangement. In reality, as no-one seriously expected the UK to leave, there was some watering down of the UK's absolute political sovereignty.

3 quick point on the side:

Genuine political sovereignty only exists for a hegemonic imperial country (howdy USA!) and since the UK isn't one of those anymore (see Suez Crisis) it's a bit of a moot point. It was, or rather is, actually beneficial for the UK to be party to the EU's 'pooled sovereignty' arrangements because the UK gains much more than it loses (like how a child could have complete control of their beloved football, but unless they share it you can't actually play a game) it was pro-European's inability or unwillingness to defend the reality of the EU which allowed the Europsceptic obsessives to set the narrative and poison people's minds against 'Brussels bureaucrats' and the like.

Those Eurosceptics, the Brexiteers, have got their way and Article 50 has been triggered. So they should have a clear vision of what happens next, particularly in a legal sense. All that EU law, which has formed part of our legal code for decades, is about to vanish like mist in the morning. What will replace this apparently terrible, imposed continental body of law? There is a notable and shaming silence on the matter, which surely exposes the vacuity of the Leave side's arguments.

If the motivation for exiting the EU was really to improve the country then there are several sensible options for replacing the laws and regulations that first originated in the EU. You could draw up an extensive new UK legal code and take the opportunity to move positively into the 21st century by clearing a lot of the legal deadwood from the statute books. You could convene a constitutional convention and overhaul some of the most archaic of the UK's legal and political institutions, like the House of Lords. Instead, as the head of the UK's Supreme Court said to the BBC:

“If [the government] doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for making the law when parliament has failed to do so would be unfair.”

This is - in the formal, restrained and careful language of a senior judge - a full throated roar in the direction of the government to "PULL YOUR FINGER OUT!". Lord Neuberger is raising the prospect of there being nothing to replace the EU laws when Brexit happens and no guidance has been issued to say what judges should do. For the legal profession not having a clear set of guidelines is tantamount to not having oxygen to breathe. If the present situation, that is the government not working out what the hell will happen once we leave, parts of the legal system will grind to a halt. Worryingly, Neuberger, who constitutionally has to stay strictly politically neutral, has already anticipated that politicians will try and shift the blame to the judges for this political problem. Little wonder when members of his profession have recently been branded 'enemies of the people'.

So why have David Davis, Boris Johnson et al not come up with a plan? In truth because they don't know what they're doing. The true Brexit believers only ever wanted to burn it all down, without having given any thought to what might come after. It's no coincidence that the vast majority of Brexit enthusiast politicians are privileged and entitled older men, who view the pooled sovereignty of the EU as they would any attempt to curb their own freedom to do however they please, without a passing thought for the benefits of collaboration, or even a little humility. They are right-wing neo-liberal anarchists, hell bent on destruction. They said they wanted to take back control, but given then opportunity they've just not up to the job.

When it all goes down, someone else (that's us) is going to be carrying the can for these guys, and I suspect not for the first time.


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