It is a great pleasure and a privilege to have been invited here this evening to deliver this talk.
I am conscious that it is more than twelve months ago that Professor Lindstadt and the Law Faculty first suggested that I should come and speak. The intention was I think that I might focus on Human Rights and the Government’s proposals to scrap the Human Rights Act and replace it with a British Bill of Rights, a proposal that I continue to believe, if pursued to be a serious mistake. But I have given a lot of talks about this recently. Furthermore the delay in my coming to join you has seen the development of an unparalleled political and constitutional crisis for our country. The EU referendum campaign and its outcome has precipitated a debate on our future as a nation which remains unresolved. Indeed events have been unfurling so rapidly that the original draft of this talk has had to be revised several times and I admit to widening its scope from where I originally started.
Brexit may mean Brexit as our new Prime Minister insists, but what form exactly it should take is unclear. Apart from those who hope in some way to see the decision of a small, but significant, majority of the electorate reversed, there are differences of view across the political Parties as to what future relationship the United Kingdom should seek to have with the EU. Some talk of the desirability of our being part of the Customs Union and the Single Market and accepting the restrictions on our freedom of action that would result in our remaining members of the European Economic Area, particularly in respect of not having control over freedom of movement. Others say this issue is so important that the United Kingdom should seek an external relationship with a trade agreement that may give us something far short of full single market access without tariffs or restrictions on providing services. They consider this is a price worth paying as it, to use the much heard phrase, “gives us back control”, something which has become a mantra for many who supported Brexit and argued that we had lost control of our destiny.
It is also noticeable that leaving the EU is breaking apart the previous broad consensus between the mainstream political parties as to how the economy should be managed. It can be seen in the demand for a return to socialism in large sections of the Labour voluntary party and in the differences of view about free market economics amongst Brexit supporting Conservatives, all facilitated by the prospect of the existing EU framework being removed. Meanwhile the economic policy to reduce the Public sector borrowing requirement to zero by 2020 has had to be abandoned.
But most importantly there is a domestic crisis of confidence in our political institutions-which echoes a similar phenomenon throughout western democracies as we have just seen in the USA. The public are showing an increasing dissatisfaction with the way our politics are being conducted. We can see this in the progressive decline of the two party system and the rise in support for radically different alternatives, from UKIP to the SNP and, through the Greens, to the emergence of Mr Corbyn on the back of an anti-parliamentary movement-a willingness to let a thousand flowers bloom within the Labour Party. There are splits within my own Party as to the role Parliament should play in initiating and managing Brexit and we have just witnessed vitriolic abuse being heaped on judges for ruling that Article 50 cannot be triggered using the Royal Prerogative. While the referendum on Scottish independence may have been won by those wishing to keep the United Kingdom together, the narrowness of the majority and the subsequent majorities for remaining in the EU both there and in Northern Ireland, raises further questions on the maintenance of long term national unity because of the divergent views on how our country should proceed.
I could not hope this evening to look at all aspects of these issues. But I mention them first because they highlight for me the extraordinary times in which we are living. And they are all affected by the topic that I would like to examine. This is the extent to which Brexit constitutes a potentially profound change in our country’s relationship with both our own and the international legal order and the consequences that could flow from this both domestically and internationally. In voting to leave the EU, the electorate has demanded of the government a change in direction for the United Kingdom in respect of participation in building supra national legal frameworks and in what it expects from our own unwritten constitution that has become heavily intertwined with them. As I think this has a potential to affect many aspects of our life I felt this might be a good time to give this subject some consideration, particularly as it has seemed to me, in following the debate, that many of the issues may not be well understood and if they are not, we are unlikely to come up with sensible or lasting solutions. In setting out to examine this I would like to emphasise that this is a politician’s view of the issues, not an academic lawyer’s. As you will be aware I campaigned for us to remain in the EU because I believed it was in our national interest to do so. But despite this partisanship, I trust that I can also approach the issue tonight with a bit of legal rigour as well.
THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY
Central to the debate on Brexit has been the compatibility of our membership of the EU with the principles of national and parliamentary sovereignty. It has been frequently asserted that EU membership undermines this sovereignty in a manner which is damaging of our independence and of our national traditions of parliamentary governance and democracy. It has been used as one of the key arguments of why we should leave. But this merits a little examination.
In theory at least our constitution is that the Queen, acting with the assent of her Lords and Commons, should enjoy an exercise of power unlimited by any other lawful authority. This means that any government, with a parliamentary majority, could pass a Bill to require us to collectively worship the Moon every Thursday. Provided the Queen were minded to give royal assent to it and no Royal Assent has been refused since the reign of Queen Anne, then that would be the law of the land and we could be punished for not conforming. This may sound fanciful, but as Henry VIII Act of Supremacy showed in 1534, the use of parliamentary authority to coerce the subject on matters of deepest conscience and belief was once a reality and was used to overturn the existing order of Catholic Christianity under papal authority, that most contemporaries considered permanent and immutable.
But in it’s modern form the doctrine is a more subtle one.It owes its origins to the struggle between monarch and parliament in the 17th century. James 1st, coming from Scotland, lacked understanding of the requirements of legality as understood south of the Border. His belief that he was entitled to rule free of constitutional restrictions brought first him and then his son Charles 1st and grandson James IInd into collision with Parliament and his subjects, particularly lawyers. When after civil war and decades of political conflict, Parliament finally enshrined its supremacy over the Crown in the Bill of Rights of 1689, its 13 clauses created the powers and privileges Parliament enjoys today and asserted the primacy of the law over the will of monarchs and the executive. In particular Clause 9 in its traditional interpretation created the principle that the actions of Parliament cannot be impugned in any court and that the will of Parliament as expressed in the statutes it passes, may be open to interpretation by our courts to give them effect, but cannot be contradicted or overturned. It further means in practise and now as a matter of established convention, that a government cannot function or survive if it loses the confidence of a majority in the House of Commons.
It is, of course with these powers that Parliament in 1972, at the behest of the then Conservative government enacted the European Communities Act which gave primacy to EU law in our country. In doing so it chose, through accepting the mechanism of “Direct Effect”that developed thereafter, to allow what is now the Court of Justice of the European Union to override United Kingdom statute law and indeed to allow the superior courts of the United Kingdom to do the same, so as to ensure our conformity with EU law in all areas in which the then EEC and now the EU has competence.
There is no doubt that this has been very controversial. It has led to Parliament not enacting any legislation contrary to EU Law. In theory of course Parliament has had the power to do so. As my colleague Sir William Cash has often advocated, all that has been needed is for legislation to contain a “Notwithstanding Clause” overriding the 1972 Act. But to do so would put the United Kingdom in breach of our treaty obligations and successive governments have refused to adopt such a course of action. Indeed even in the aftermath of the Brexit Referendum, suggestions made during the campaign that the UK should exit the EU, not by invoking Article 50 but by immediately repealing those parts of the 1972 Act which we considered offensive while giving notice of our desire to negotiate a new relationship with the EU, as advocated by Michael Gove and others, have not been pursued.
Even more controversially there have also been decisions of the European Court of Justice and of our own courts overturning national law. From Rv Secretary of State for Transport, ex p. Factortame in 1990 onwards, the United Kingdom has, as have other EU countries to live with the reality that laws enacted by Parliament may be overruled if found incompatible with our EU Law.
The justification for requiring that supremacy should be given to EU law by the Treaty signatories was the not unreasonable one that without it, achieving adherence to the treaties and convergence between the practice of member states in implementing EU law would be very difficult. But it is hard to avoid concluding that the requirement lies at the root of some of the feeling of powerlessness felt by sections of the electorate and reflected in the Referendum result. How often it was that I heard on the doorstep that people were fed up with being told what to do by unaccountable foreigners! This is despite the efforts of successive governments to try and mitigate the democratic deficit in respect of Directives and regulations by having them scrutinised before implementation in our own Parliament through the European Scrutiny Committee of the House of Commons and its Lords counterpart. There have also been opportunities to do this at a collective level in the EU Parliament. But as in practise the EU Parliament has never enjoyed any democratic legitimacy among United Kingdom voters and its list system guarantees the detachment of MEPs from their electorates, it has been unable to act as any kind of public focus for challenging and holding to account EU decision making. There has also been a tendency for successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its citizens and for failing to highlight our own role within the EU Council of Ministers in framing most EU law. So it is perhaps hardly surprising that the EU has never been popular or accepted in our country.
PRACTICAL LIMITS ON PARLIAMENTARY SOVEREIGNTY
But discussions about restoring parliamentary sovereignty of the kind that formed the background to the Referendum often ignores the extent to which that sovereignty is not and has never in reality been unfettered. It has long been closely linked in our unwritten constitution to the principle that it is only exercisable within certain limits both domestic and international.
When last year we celebrated the 800th anniversary of the sealing of Magna Carta, we remembered not just a historical event but the start of a national narrative of there being limits on sovereignty. The Barons who were responsible for obtaining it from King John had of course preoccupations a little removed from our own. They were dealing with a King who was operating outside the acceptable norms of kingship in the 13th, not the early 21st century. But although as a 13th century peace treaty it was a failure, its reissue on numerous occasions in the century following caused it to become embedded in the national consciousness of medieval England. Its legacy is still key today to our understanding in our country on the limits to governmental power and our rights as the Queen’s subjects.
Firstly, the Charter was of great importance because it was very effective in reducing the monarch’s ability to raise money by arbitrary fines or levies. This meant that there was little option but for the King to summon councils or as they were called by the 1320’s “parliaments”, to approve general taxation. Once the Commons emerged as distinct body by the end of the 13th century, this practise was institutionalised, as was the Commons power to demand redress of grievances in return for taxes. It can properly be seen as a seed of modern parliamentary democracy.
But as importantly, the Charter expresses an insistence on concepts of justice that were seen by the Barons as overarching and inherent in the realm of England. It is particularly noticeable in the two surviving clauses 39 and 40 which concern the prohibition on punishment without due process of law and the promise not to delay or deprive any person of justice. These are often cited today as the defining statements on the limits of arbitrary state power. As the Charter was invoked repeatedly in the succeeding century there is evidence these concepts entered our national DNA. In the 15th century we have Chief Justice Fortescue writing a treatise De Laudibus Legum Angliae, (In Praise of the Laws of England) which celebrated what he saw, even then as English exceptionalism. He stated that “The King of England cannot alter nor change the laws of the realm at his pleasure”. A statute required the consent of the whole realm. He deprecated the use of torture and lauded the system of trial by jury and its uniqueness to England.
In the oath of office I was required to take as Attorney General and which dates from the heyday of supposed Tudor absolutism, I noted with interest that I was required to say “I will duly and truly minister the Queen’s matters and sue the Queen’s process after the course of the law and after my cunning…..I will duly and in convenient time speed such matters as any person shall have to do in law against the Queen as I may lawfully do, without long delay, tracting or tarrying the party of his lawful process in that that to me belongeth.” Thus in serving as the sovereign’s lawyer and furthering her legal interests I was also made to promise as required by clause 40 of the Charter not to abuse my position to delay or deprive justice to anyone else even if my office gave me the power to do so.
So it is not surprising that this theme was also prominent in the dispute between King and Parliament in the 17th century. Sixty years before the Bill of Rights, Sir Edward Coke, the Lord Chief Justice of James 1st, defied the King and argued that his sovereignty was limited by rules of natural law and not just by the need to govern through Parliament. He developed the idea of an “Ancient Constitution” coming from the Anglo-Saxons, reinforced by Magna Carta and now being subverted. This was of course myth but it was of great potency. In Dr Bonham’s case he went further and commented that “in many cases the common law will control acts of parliament and sometimes adjudge them void; for when an act of parliament is against common right or reason, or repugnant or impossible to be performed, the common law will control it and adjudge it to be void”. The Leveller John Lilburne took up this theme when he claimed Magna Carta was “the indubitable right and inheritance of every free born Englishman” and stated that any legislation contrary to it, however enacted, was void.
Thus the Bill of Rights of 1688/9, in asserting the primacy of Parliament, also contains the ethos by which that primacy might be limited. If the accusation against James IInd in the Bill of Rights is that he had sought to “subvert the Lawes and liberties of the Kingdom”, then what if it was the government of the Crown with a parliamentary majority that sought to do so- what Lord Hailsham called “elected dictatorship”? On this the Bill of Rights is silent. Its drafters saw Parliament as the upholders of rights and liberties not its subverters and the principles developed by Coke of a legal framework that might restrain Parliamentary sovereignty were abandoned.
Yet in the succeeding centuries this issue has remained a lively topic. It lay at the root of the argument of the American colonies, in their Declaration of Independence, complaining of the British Government and Parliament’s oppressive taxes. It was invoked at the time of the Great Reform Act of 1832, by the Chartists in the 1840s and the Suffragettes, who even compared themselves to the Barons of 1215 in demanding the vote for women and in resorting to violent action when blocked by a parliamentary majority. And it can be argued that in deciding to hold the United Kingdom’s first nationwide referendum in 1975, on whether or not our country should remain in the EEC, shortly after our accession to it, Harold Wilson was accepting that the nature of the constitutional change that was taking place required something more than just parliamentary approval, even if it also served to accommodate Labour Party dissent. Nowadays we are told that the 1975 referendum only legitimated the membership of a Common Market and not some European super state. But the constraints on parliamentary sovereignty that were being implemented were perfectly clear then and it received the approval of a substantial majority.
BREXIT AND PARLIAMENTARY SOVEREIGNTY IN TRIGGERING ARTICLE 50
Today, with Brexit, the same issues re-emerge in new guises. On the one hand Brexiters have argued that leaving the EU is the necessary step to the restoration of Parliamentary sovereignty and nationhood which has in their eyes been fatally undermined by the conferring of a form of primary legislative power on an international institution-the EU. The 2016 referendum thus marked for them, in Boris Johnson’s words, our “Independence Day”. But at the same time we are now being told that Parliament’s sovereignty should not extend to legislating for or even just approving the triggering of the formal Brexit process under Article 50, as the people have spoken in the referendum and nothing more should be needed. Instead the government is to implement Article 50 as the people’s agent irrespective of the extent to which triggering Article 50 might conflict with previous statute law enacted by the Queen in Parliament or the consequences it might have for the acquired rights of the Queen’s subjects.
Such a suggestion is indeed revolutionary. It runs entirely contrary to principles of constitutional law in our country that in the words of Professor A. V. Dicey and as cited in the recent case of Miller and others in the High Court, “the judges know nothing about any will of the people except in so far as that will is expressed by an act of Parliament and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors”. It also runs counter to the other key principle as set out by Sir Edward Coke in the Case of Proclamations of 1610 that the “King by his proclamation or other ways cannot change any part of the common law, or statute law or the customs of the realm”-a straight echo of what Fortescue had said 150 years earlier.
In fairness the government did not seek to justify so radical a departure from constitutional precedent and certainly did not argue that the holding of the EU referendum in June gave it authority of itself to trigger Article 50 without a statute passed by Parliament. It sought instead to contend that it was entitled to use the Royal Prerogative, because it’s action in triggering Article 50 was confined to our international relations and the domestic changes that might follow to UK laws enjoyed under UK statutes were an incidental consequence of it, that Parliament had not expressly or impliedly restricted. The Court rejected this argument as “flawed at a basic level”. It will be interesting to see what the Supreme Court makes of it. I note that it is now suggested that the government may try to argue a new ground that Article 50 is reversible and that parliamentary sovereignty is not affected by the Article 50 trigger at all. This would be an extraordinary volte face on its previous position and one wonders if it will be allowed. It also raises the possibility of the ECJ having to rule on the reversibility of Article 50.
But whatever the final outcome of the legal challenge that will now go to the Supreme Court, it emphasises the importance of the 1972 Act. In Thoburn v Sunderland City Council, Lord Justice Laws stated of it in describing it as “constitutional legislation”; “…it may be there has never been a statute having such profound effects on so many different dimensions of our daily lives. The ECA is by force of common law a constitutional statute”.
So however it is done, the importance of the next step would be hard to overestimate. Triggering Article 50 to leave the EU may not be signing a treaty, but its effect, unless tempered by a fresh treaty before leaving takes effect, has direct consequences on the future economic wellbeing and quality of life of British citizens. It also impacts on private rights in areas such as intellectual property and data protection, as most compellingly illustrated by the case brought by Tom Watson and, the now Minister for Brexit, David Davis, which is still before the ECJ. Then there are those other areas of the “acquis communautaire” that confer rights on us as EU citizens, in areas such as freedom of movement and of capital and rights of establishment, voting rights for the EU parliament, anti-discrimination laws, competition law and human rights..
While I am respectful of the decision of the majority of the voting electorate that we should “leave the EU”, such matters of detail did not exactly feature prominently in the Referendum. It must be for Parliament to consider such issues and question the government on its strategy as to how they will be preserved, altered or unravelled before Article 50 is invoked and for Parliament to express broad approval or otherwise for the Government’s approach. It seems to me ironic that some of my colleagues who have been most vociferous in arguing for the restoration of national sovereignty are now the ones willing to lightly abandon these parliamentary rights when it suits their political agenda. If we do this, it will be a marked shift in our constitutional arrangements away from representative democracy to something for which our unwritten constitution has no precedent to set ground rules. There must therefore be a risk that as the Brexit process proceeds, the variance of view between Government and Parliament is masked, which will simply lead to a crisis further down the road. I understand the anxiety of the Government that its negotiating strategy with the EU should not be undermined, but its approach is not realistic. No Parliament worth its name can readily abandon input into the biggest domestic constitutional change in modern times which is what in reality the renegotiation is going to be all about.
Awkward questions are also raised by the practical legislative problems associated with leaving. Some of my parliamentary colleagues have suggested that all that is needed is to incorporate all current EU law, Directives and regulations into our domestic law, leave the EU and sort out what we want to keep at our leisure afterwards. The Government has responded with the promise of what it calls the Great Repeal Bill, in which Parliament will be able to lay the legislative ground for leaving the EU, principally by entrenching and converting EU law into domestic law first to avoid falling into a lawless void on the first day after our departure.
I do wonder whether the scale of this task is appreciated. There are now at least 40,000 legal acts, 15,000 court verdicts and 62,000 international standards binding on citizens and companies in the UK by virtue of our EU membership. Only a small number relate directly to business undertakings but most undertakings are affected by a multitude of rules on the environment, employee, consumer and health protection. Just identifying and understanding them will be time consuming and complex and that is before issues of their retention or abandonment are debated.
Experience suggests this will mean the drafting and enactment of skeletal legislation conferring sweeping powers on Ministers to repeal and amend existing legal rights linked to the EU by Statutory Instrument-Henry VIIIth clauses in fact and, as identified by Lord Judge in his recent lecture, the biggest threat to the integrity of our Parliamentary democracy. It has also been in practise the principal way in which we enact poorly drafted law in our country. The alternative would be a massive programme of primary legislation which in practise is beyond our resources and available time to do. This does not bode well for Parliament’s status or legitimacy in the eyes of the public. Far from Brexit restoring its centrality, there is a strong risk that it will contribute to the further erosion of its legislative role and reputation, the very thing which Brexiters argued they wanted to restore.
There is in any event uncertainty as to how the incorporation of EU law into our own law will solve the key problem of ensuring legal continuity through the Brexit process. As is abundantly clear, UK based businesses with an interest in trading or operating in the EU, want to ensure that they can do this after Brexit. But that requires a decision by the government as to the extent, if any, that it wants to negotiate a new treaty or treaties with the EU and linked to it the extent it wishes to see UK legislation after Brexit mirror the development of EU regulation and Directives so as to maintain conformity and enable any new treaty to function.
The decision as to what we will do is a political one and lies at the heart of the current debate on “hard” and “soft” Brexit. There is no basis for suggesting that the referendum can have answered this question as it was not and could not readily be put. In any event the final outcome of any future negotiations is not within the government’s gift, unless it intends to leave the EU with no attempt at creating any framework at all for subsequent relations.
Even if our decision were to be to move to a WTO relationship on all matters, this will not happen of itself. It would require the disentangling of our membership from the EU membership of the WTO and a negotiation with the 163 other WTO members to settle our new terms which could be disrupted by any of them including the EU itself, if we have not established a common position with it. Other possible relationships with the EU ranging from a Norway model to a Turkish one are going to require the putting into place of fresh legislation and laws to enable harmony of regulatory structures to be maintained in those areas where we negotiate to do so. This too is going to be highly complex. It will inevitably tempt Government into legislation with Henry VIIIth clauses, just as undermining of accountable governance as the EU itself. It must also mean that at the end of the day decisions of the ECJ and EU law as interpreted by that court will continue to have an impact in this country.
BREXIT AND DEVOLUTION
Brexit also affects our domestic constitutional arrangements. The intended recovery of national sovereignty will be against a constitutional landscape entirely different from that which existed when we joined the EU in 1973. Westminster has now granted the devolved administrations and parliaments legislative competence over many matters. These include agriculture and fisheries, food and the environment which are subject to various levels of interference and control by the EU and subject to EU law. So while foreign relations may be reserved to the UK government and Parliament, the impact of leaving the EU will mean that Scotland, Wales and Northern Ireland will be affected in areas of their competence.
This will impact immediately on how Article 50 is triggered. Assuming that the Supreme Court upholds the High Court judgment we will need legislation from the Parliament of the United Kingdom, which overrides the current devolution Acts, in potential breach of the Sewel Convention if consent from devolved legislatures is not given. In the case of the Scotland Act 2016 ( Section 2) and the forthcoming Wales Act, both expressly state that the UK Parliament “will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”, giving the Sewel convention some statutory footing. What legal significance this term “normally” means is as yet undetermined by our Supreme Court. But interpretation is likely to be unavoidable if disagreements emerge. It may well feature as part of the planned intervention of the Scottish and Welsh administrations in the Miller case before the Supreme Court.
On the basis of the principle of parliamentary sovereignty, it would of course be possible for the UK government to pass legislation at Westminster to override or alter these devolution provisions to enable Brexit to be triggered, if they are found to present an obstacle to doing so. But that isn’t an approach that any Government would want to take unless forced.
It is also noteworthy that some sections of the Scotland Act (section 126(9), the Wales Act 2006 (section 158(1)) and the Northern Ireland Act 1998, refer not to the 1972 Act we intend to repeal but to EU law as defined in “the Treaties”. Other forbid the enactment of any legislation that infringes EU Law. This must mean that legislation on devolved matters will be needed before we leave the EU even if the narrower Article 50 issue is satisfactorily resolved.
Brexit thus creates uncertainties in the relationships between devolved administrations and the central government that were not anticipated when devolution took place. This is a fertile field for future disagreement and the unpredictable political consequences that may flow from it.
In the case of Northern Ireland the complexities go much further. The structure of government there is not only based on devolution legislation but on an international treaty the Belfast Agreement concluded between the United Kingdom and Ireland in 1998.
In particular it is implicit in the Agreement that there is a shared EU citizenship across the island of Ireland with all that this implies in terms of freedom of movement and of trade. Indeed the third preamble to the Agreement expressly refers to “the wish to develop still further co-operation between our countries as friendly neighbours and as partners in the EU”. Leaving aside the current legal challenge in Northern Ireland to Article 50, which will now go to the Supreme Court as well, it raises difficult issues, particularly if a “hard” Brexit is pursued. Both governments lay great stress on preserving the Common Travel Area that preceded EEC accession in 1973, but that doesn’t solve the question of maintaining free trade arrangements with one state in the EU and one out of the Customs Union or of how residents in the North can continue to enjoy the full benefits of Irish nationality, including EU citizenship if they to do so as permitted by the Agreement. This, arguably, includes rights conferred within areas of EU competence by the EU Charter of Fundamental Rights, which has developed jurisprudence in a number of areas, including data protection and privacy which could be affected by Brexit. I express no view as to how this will play out. But the political stakes are high. It could affect both the peace process which remains fragile and trigger demands for fresh Border poll. In the meantime it looks like a considerable source of income for lawyers.
THE INTERNATIONAL DIMENSION
The Northern Ireland aspect does emphasise the unprecedented nature of the changes on which we are embarked. The underpinning of British foreign policy in the last 200 years has lain in the creation and observance of international treaties and obligations, designed to promote commerce and make the world a safer, more prosperous and better place for us all. We have as a nation been at the forefront of this process internationally. When I was Attorney General, I enquired of the Foreign office as to how many treaties we were adherent. They were unwilling to go back before 1834, but indicated that since then they had records of more than 13000 of treaties and agreements that the UK had signed and ratified. Many thousands are still applicable and range in importance from the UN Charter to local treaties over fishing rights. Over 700 contain references to the possibility of binding dispute resolution in the event of disagreements over interpretation-which is exactly what the EU does through the ECJ. So important has been this treaty making that the Ministerial Code referred until last year specifically to the duty of civil servants and ministers to respect our international legal obligations at all times. Even when it was then deleted by David Cameron as PM, in a fit of pique over the ECHR and prisoner voting, it was immediately emphasised by the Cabinet Office that this made no difference to the obligation, which is given the status of the eighth principle of the Rule of Law by Lord Bingham. And the EU treaties because of their importance form at present a key part of our international treaty obligations.
Now I need to emphasise that this does not mean that we can’t leave the EU. We have in the past withdrawn from international treaties we considered had become inimical to our interests or obsolete. We did it when we pulled out of the International Labour Organisation of the UN and in the case of the EU Treaty Article 50 provides a legal route to do it. But it is a very unusual occurrence and the worldwide interest it has generated is not just because of the effect it may have on our future economic prosperity but about what it says in relation to our attitude to international engagement in the future. Assured reliability as an international partner has been one of the principal bases on which the UK has marketed itself to others. Our Defence doctrine speaks of collaborating as broadly as possible on a global basis to provide “collective security”, and ‘underpin a rules based international system” that maintains “international order”. While the Government may strive to provide reassurance of our good intent to present and future treaty partners by supporting NATO in sending troops to the Baltic states and emphasising that we leave the EU to participate more fully in the global marketplace, the ultimate failure of our EU engagement must sound a cautionary note for others with whom we may wish to engage. It also comes during a period when in relation to another important international treaty, the ECHR of the Council of Europe, the UK has shown a failure to accept the full responsibilities of adherence by not implementing its obligations to respect decisions of the European Court of Human Rights and this has not gone unnoticed by other states.
The EU is primarily a treaty about creating a single market. That does not mean however that Brexit can be neatly compartmentalised away from our interests in other areas on which the EU has an impact. A prime example of this lies in the field of serious crime and counter-terrorism. High level intelligence sharing may be done bilaterally, but the EU gives us access to the information sharing and operational coordination from Europol and the Schengen Information System, the European Arrest Warrant, mutual recognition in criminal matters and harmonisation of criminal procedure. These are all matters that the PM has consistently upheld as important to our law enforcement agencies when she was Home Secretary. It may well be in the interests of our EU partners to keep us in them in some form on our departure, but this will all have to be negotiated. We are also likely to lose influence over their future development once we are out of the EU.
All these issues should be of concern to us because the irony of Brexit is that it requires us to embark on a process of treaty making on an unparalleled scale if we wish to try and retain the agreed advantages of EU membership whilst escaping the parts we find irksome. Far from the joys of unbridled sovereignty we are going to spend the coming years trying to forge new agreements that inevitably will constrain us. We need to persuade the 27 other member states to give us an agreement that will for obvious reasons be particularly complex if it is to regulate our trade with the EU from outside the Single Market. It may require special rules and legal structures that will have to be created from scratch. We would also in those circumstances need to renegotiate all the 57 trade deals of the EU with third countries to retain the benefits they confer on us at present. All this before we even start the process of negotiating those desired free trade agreements with third countries that have so far eluded the EU and have to face up to the global growth of protectionism emphasised by the success of Donald Trump.
For the reasons I have tried to set out tonight, I have to confess that I find it impossible to participate in the euphoria shared by those, including some of my parliamentary colleagues, who either supported Brexit, or not having done so have now put an optimistic gloss on our future outside the EU, in deference to the wishes of the electorate expressed in the referendum.
This is not to say that the referendum has not highlighted the serious problems with the way the EU has developed and has been run. Its lack of democratic legitimacy, when combined with its ambitions and the economic problems and institutional dysfunction caused by the creation of the Euro, lie at the root of its current crisis. Even without the UK to disrupt it by it presence, its future looks uncertain. And if there is one lesson I derive from the problems associated with our membership it is that the requirement to give supremacy and Direct Effect to EU law, understandable as it is in the smooth creation of a Single Market has had a corrosive quality, when linked to an institution where misplaced federal ambitions have coloured too much the operation of its bureaucracy, even if in reality there has never been any real sign of this agenda going anywhere.
But the consequence of our referendum vote is that we have taken on a task fraught with legal complexity and economic risk that I fear is unlikely in the end to satisfy the aspirations of those who voted for it. Valuable as it has been for us in curbing executive power, parliamentary sovereignty and being “in control” has been mythologised. It is rightly constrained domestically by public opinion, the Rule of Law and conventions based on moral principles and internationally by the reality that our economic, physical and ethical wellbeing is and remains rooted in international engagement which requires the creation and observance of international law. In the coming months we are going to have to keep all these well in mind if we are to further the common good in our country and get us through the challenges that Brexit compels us to confront.
Dominic Grieve QC MP