Audit 2017: How democratic is the Brexit process?

Many political and constitutional steps are needed in order to for the UK to leave the European Union, after 44 years as a full member. Cumulatively they form one of the biggest constitutional changes in British history, and one dogged by intense controversy and disputes. As part of our 2017 Audit of UK Democracy, Joelle Grogan examines how far the Brexit process meets democratic criteria for such a momentous transition, or falls short of these standards.

Anti-Brexit marchers in London, July 2016. Photo: duncan c via a CC-BY-NC 2.0 licence

This article was published as part of our 2017 Audit of UK democracy. We have now published: The UK’s Changing Democracy: The 2018 Democratic Audit with LSE Press, available in all ebook formats. You can download the whole book for free, and individual chapters, including a fully revised version of this article.

What does democracy require for the way in which the British withdrawal from the EU is decided, implemented and achieved?

• Only Parliament can finally decide the terms on which Brexit is achieved. The 2016 referendum provided a significant statement of popular support to leave the EU. But giving effect to this decision is highly technical process that only Parliament can navigate successfully – since there cannot be a plebiscite on each sub-issue. Parliament is accountable only to the electorate, which itself has the prerogative to change it at the next election.

• Cross-party co-operation and engagement are needed, especially in a hung Parliament, as now. The full Brexit process will not be resolved within the next two years, or even in multiple parliamentary terms. So it necessitates careful deliberation from all MPs and parties in Parliament. This is not to suggest uncritical support for a singular interpretation of an ambiguous mandate, but rather to advocate for what Parliamentary democracy ought to epitomise: informed debate by elected representatives and the capacity to compromise on the best course of action.

• The process must fully involve the devolved legislatures. Scotland and Northern Ireland voted in the majority to remain, and the land border with the Republic of Ireland makes the issue of critical importance to Northern Ireland.  For both Scotland and Wales the previous devolution legislation assigned all powers to the devolved Parliament or Assembly that were not reserved to the UK. Yet the May government’s Brexit process seems to involve two stages, in which all powers shift back to Westminster, and only then are devolved down – potentially breaching the previous constitutional understanding. Navigating this cannot be done by Westminster imposing a solution.

• Government must openly communicate with the public about the achievable outcomes and feasible timelines for Brexit. Acknowledging the complexity of the task can rebuild trust with negotiating partners, and build public recognition of the need for an extension to the time to negotiate a Withdrawal Agreement or a transition period.

• A progressive, sectoral and methodical plan of law reform is needed, prioritising the rule of law. Separating the UK from the EU is a highly technical and challenging process of law reform. There is now no pre-European Community law to rely upon, because people have built their lives and businesses on the certainty of the law of the last 40 years. Sensibly reforming the law to reflect post-Brexit UK entails committing to prioritise legal certainty and accountability above expediency and ease of policy implementation. It will also require a well-resourced and enlarged civil service, with open and transparent consultation processes.

• Robust accountability mechanisms are needed to scrutinise government decisions taken under the Brexit process. The 2016 referendum gave a mandate to withdraw as a member of the European Union, but not to radically change the foundations of the British legal system. Such delegated powers as are necessary to quickly address deficiencies in the law arising from Brexit must be balanced by effective and robust oversight mechanisms. This includes acknowledging the central duty of the judiciary to review these decisions so as to uphold parliamentary sovereignty and the rule of law.

Brexit is in the eye of the beholder. The 2016 referendum result is seen by many Leavers as the ultimate expression of the popular will of the British people. But Remainers often picture it instead as the upshot of a poorly-framed question to an ill-informed, and under-representative segment of the population – even the product of a ‘gerrymander’. In the context of such all or nothing Brexit paradigm, auditing the democratic legitimacy of Brexit is challenging. However, there are clear and manifest issues with regards to the process of Brexit, rather than the outcome and the decision itself.

Recent developments

Since the 2016 referendum, much has happened. The Prime Minister who championed the referendum resigned and a new majority party leader (and thus PM) was selected, who rather promptly lost much of her standing in an early general election supposed to underpin her position. There was hard-fought litigation on Parliamentary sovereignty to trigger Article 50, and the government decision to go ahead began a two-year countdown. A European Union (Withdrawal) Bill (‘Repeal Bill’) aims to solve the issues of the separation of the UK from the EU within two years of exit day. Very little of any of these changes has directly addressed the issues immediately pertinent to the Brexit process.

The 2017 general election was called to ‘strengthen the mandate’ of the Conservatives in the EU negotiations. Initially framed as providing certainty in the leadership for the Brexit process, and ‘stability’ in government, it resulted in a loss of both. While the question of Brexit was identified as the key election issue, neither of the top two parties (who predominated) emerged strongly in support of the remain side. Nor did they engage with each other on the form of Brexit to be pursued following the election. So as a metric for the democratic legitimacy of Brexit, the inconclusive 2017 result served neither to validate the government’s choices on the process, nor to repudiate them.

The only certainty is uncertainty. The business of Brexit is a process which is so fast evolving as to make analysis of it one day obsolete the next. A practical reason for this is in the ongoing negotiation with the EU, from which nothing can be said with certainty until there is a Withdrawal Agreement, or the March 2019 deadline falls due. Relatively little negotiation seems to have been accomplished (at the time of writing), and the UK executive seems to have not yet articulated a coherent or consistent position on the aims and means of Brexit, beyond the vacuous stopgap of ‘Brexit means Brexit’.

Strengths, Weaknesses, Opportunities, Threats (SWOT) analysis

Is the ‘Repeal Bill’ undemocratic?

The European Union (Withdrawal) Bill is designed to deliver both the legal separation of the UK from the EU, but also a degree of legal certainty within the UK following Brexit. The process envisioned by the Bill is

1. to repeal the European Communities Act 1972;
2. to convert directly effective EU law into UK law; and
3. to delegate significant powers to the executive to remedy or prevent deficiencies arising from the conversion of EU Law (a ‘Henry VIII’ power).

The European Communities Act 1972 is the Parliamentary act which at the moment gives effect and supremacy to EU law in the UK, and underlies a significant corpus of law in the UK by incorporating the acquis of EU membership, notably the EU Treaties and the EU Charter of Fundamental Rights, into British law. Repealing this bill without adequate transition mechanisms may result in a high degree of uncertainty about which law applies (or continues to apply), where and when. Many legal commentators have highlighted multiple concerns arising from the design of this bill. The most significant issue relating to the democratic legitimacy of Brexit concerns the use of delegated powers by Ministers. The Repeal Bill proposes to delegate power to the government ministers, to create secondary legislation which will change, amend or remove retained EU-law on an unprecedented scope and scale. An estimated 800 to 1,000 statutory instruments have already been envisioned, but this is likely to be an underestimation of a possible ‘legislative tsunami’ that may result from this bill.

Constraints on the use of delegated powers to change or remove primary or secondary law are limited, while the power to determine where secondary legislation is needed is broad. Ministers will also decide the level of Parliamentary scrutiny. And in some limited cases, instruments may even be made without any draft being laid before Parliament. This delegation of legislative power away from Parliament raises pressing concerns for the accountability and transparency of the new arrangements. There is no proposed requirement on the government to provide explanation, justification or evaluation of the impact of their changes made to the law. This approach could compromise legal certainty and individual rights, and give government ministers leave to implement policy choices without Parliament. For all the intention of ‘taking back control’, such a design will be less democratic, create more uncertainty and ultimately weaken Parliament, as power is centralised in the hand of very few people in Whitehall.

Will the jurisdiction of the European Court of Justice be undemocratic post-Brexit?

To a significant extent the key ‘Brexit issues’ will be determined by a Withdrawal Agreement with the EU, and not by the UK’s Parliament (or executive) acting alone. These issues include questions about the Northern Irish border with the Republic of Ireland; the rights of EU citizens resident in the UK and of UK citizens in the EU; Gibraltar; and the settlement concerning the UK’s remaining financial liabilities to the EU. However, these matters are just the headline issues so far. Many more issues will need settlement, including cooperation on matters of security, crime, family and civil judgments.

A key question has been whether the Court of Justice of the European Union (CJEU) has any jurisdiction in Britain following Brexit. The issue captured headlines following the ‘red line’ announced by Theresa May. The CJEU’s function is to ensure the uniform application of EU law across all Member States. It acts as a final arbiter in the case of disputes that fall within its jurisdiction, and provides an authoritative interpretation of EU law to be equally applied across all Member States.  Asking whether it is democratically legitimate to have regard to the jurisdiction of the CJEU is misplaced. In most liberal democracies, the judiciary are generally unelected in order to insulate them from the vagaries of day-to-day politics and to preserve judicial independence. Whether or not the UK will fall under the jurisdiction of the CJEU on certain EU-related issues post-Brexit will be left as part of the complex resolution of the future relationship between the UK and the EU, and depend on whether it will be necessary for participation in the Single Market.

However, what is significant about this question is that it has had to be considered at all. The pillorying of judges in the media as ‘enemies of the people’ (an accusation that was not condemned by government ministers, and was perhaps even condoned by them), or attacks on the CJEU for a lack of democratic legitimacy, both fundamentally misunderstand the whole notion of an independent judiciary, and the central values of the separation of judicial power from the executive and legislature and of the rule of law.

Could there be another ‘Miller Judgment’?

The 2016 Miller judgment by the UK’s Supreme Court was a powerful statement of the centrality of Parliament and the rule of law, above and beyond the powers of the executive. Under the judgment, the government alone does not have authority to make law which changes or removes domestic rights of individuals. To trigger Article 50, the Government must be authorised to do so by an Act of Parliament. The key result of Miller was a brief (137-word) Act of Parliament that gave authority to the Prime Minister to notify the EU of the UK’s intention to withdraw from the EU under Article 50. This Act does not give authority to the Prime Minister to agree to adopt the Withdrawal Agreement on behalf of the UK. [From the EU perspective, the Withdrawal Agreement would need to be adopted by a qualified majority vote, which requires that it is supported by at least 72% of the remaining 27 Member States and representing at least 65% of the total EU population]. It can therefore be assumed that any Withdrawal Agreement must also be passed by the Westminster Parliament. Not doing so would likely result in Miller 2.0.

However, a further question of the Brexit process concerns the immunisation of executive power from judicial challenge, and the removal or weakening of individual rights, by virtue of the Brexit process. Both of these concerns are at issue in the context of the European Union (Withdrawal) Bill. It is highly likely there will be extensive litigation arising as a result of Brexit. The recent Unison judgment concerning the constitutional right to access to justice can also be recognised as a shot across the bow from the Supreme Court for future Miller-type litigation. In a searing section of this judgment, the Supreme Court affirmed their role in ensuring that the executive carries out its functions in accordance with the law, and as regards its view on Parliamentary democracy, the rule of law, and access to justice:

‘Without such access [to the Courts], laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.’ (R(Unison) v Lord Chancellor [2017] UKSC 51, at 58 (per Lord Reed).

We may guess how the courts will be likely to regard any Brexit process that does not respect these fundamental values.

Would a second referendum deliver democratic legitimacy?

There is no clear vision of what Brexit is, or what it will deliver. The 2016 referendum delivered a result so surprising to all sides that no clear preparations had been made for a Leave vote. The referendum result has been questioned, and it is clear that the consequent process has in many cases weakened rather than strengthened parliamentary democracy. So the question of whether there ought to be a second referendum to guarantee the democratic legitimacy of Brexit has been raised, particularly in the context of any Withdrawal Agreement made with the EU. Many people are still hoping for the UK to remain a member state of the EU, and for them it may be a case of what was done by a referendum can only be undone by a referendum. From an external perspective, the question of whether it is possible to ‘un-trigger’ Article 50 is likely to be answered as a political rather than a legal question, and likely in the affirmative.

However, such a referendum is at once too early and too late. It is too early for a deal to have been negotiated with the EU-27 which can then be put to referendum, and too late for the decision to be determined by the UK electorate as negotiations have begun. From a fundamental constitutional perspective, however, there should not be a second referendum on Brexit – because that would only serve to further undermine the system of Parliamentary democracy. A democratic Brexit process is one that reasserts Parliament sovereignty over the 2016 referendum, but recognises that this sovereignty extends only to the UK borders – while Brexit reaches far, far beyond them.

This post does not represent the views of the LSE.

Dr Joelle Grogan is a Lecturer in Law at Middlesex University, and the creator of @StickyTrickyLaw.

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