Don’t moan about legal overreach—worry about our rights

‘Britain seems to be one of just three democracies without a constitution, alongside Israel and New Zealand. But, inside the EU, we are under a constitution, since government and Parliament are constrained by EU law’

Wig & pen

The consequences of Brexit for the British constitution are not being considered in this election campaign. Perhaps they ought to be. For taking back control means not only taking back control from Brussels to Westminster; it also means taking back control from the courts to Parliament and the executive. Brexit could return us to the elective dictatorship pinpointed by Lord Hailsham in the 1970s. Indeed no democracy has hitherto moved from a protected to an unprotected system.

Jonathan Sumption, however, might well welcome this development, since the central theme of his Reith Lectures, now published as Trials of the State: Law and the Decline of Politics (Profile Books, £9.99), is scepticism towards codified constitutions and criticism of judges who have taken over the role of politicians. Judges, in the view of the former Supreme Court justice, have made law in the light of their own preconceptions rather than simple interpretation. The expanding role of the judiciary is, he believes, a long-term consequence of “the arrival of a broadly based democracy between the 1860s and the 1920s”. But, if the problem is excessive legislation rather than over-active judges, it is perhaps odd to suggest that the answer lies in transferring powers from judges to politicians.

Sumption is unhappy about the human rights culture, and unhappy about the 2016 Brexit referendum. Both, however, are a consequence of political decisions—the Human Rights Act of 1998, and the EU Referendum Act of 2015. which received a majority on Second Reading of 544 votes to 53, being supported by all parties in the Commons except for the SNP.

One of our best legal brains, Sumption gives the impression of being unhappy with the way the world is going, but in a somewhat unfocused way; the result is that he sounds like the Victor Meldrew of constitutional law.

Doubts about referendums were expressed before the first Europe referendum in 1975 by Jean Rey, former President of the European Commission, who declared: “I would deplore a situation in which the policy of this great country should be left to housewives. It should be decided instead by trained and informed people.” Doubts about referendums are, all too often, doubts against trusting the people, and therefore doubts about democracy. To argue about the 2016 referendum is to suggest that Britain ought to remain in the EU even though a majority of voters wanted Britain to leave.

It is odd that Sumption is opposed to the Brexit referendum, since in his fourth lecture, he deplores the decline in public engagement, insisting, rightly, that “the essence of democracy is—participation”. But turnout in the referendum was 72 per cent, the highest in any national election or referendum since 1992. In a referendum, by contrast with an election under first past the post, there are no safe seats. A voter living in Bournemouth or South Shields could be sure, therefore, that her vote would count.

The high turnout was a striking illustration, surely, of democratic commitment on the part of the least fortunate in British society. The greatest threat to democracy, after all, is an inert electorate, one that has ceased to think about public issues. “As we do not learn to read or write, to ride or swim, by being merely told how to do it,” John Stuart Mill wrote, “but by doing it, so it is only by practising popular government—that the people will ever learn how to exercise it.”    

It is Sumption’s worries about the expanding role of judges that make him so sceptical of the value of a codified constitution. Britain seems to be one of just three democracies without a constitution, alongside Israel and New Zealand. But, inside the EU, we are under a constitution, since government and Parliament are constrained by EU law. Parliament cannot, after all, legislate to restrict EU immigration while Britain remains in the EU, which is a superior legal authority to Westminster. The European Court of Justice, as well as national courts, are under a duty to disapply or annul legislation incompatible with EU law, which, since December 2009, has included the European Charter of Fundamental Rights. This Charter provides a much wider catalogue of rights than the European Convention, and, by contrast with the Convention, requires judges to disapply legislation conflicting with human rights. The constitutional system of the EU, by contrast with the British, is protected, therefore, against the abuse of legislative power.

But Brexit removes us from this protection. Britain will exit from a major international human rights regime. That is rare, if not unprecedented, for a democracy. The protection of rights will in future be the responsibility of Parliament. The other 27 member states will of course continue to be subject to the Charter. Are British MPs so much more sensitive to human rights than the legislators of other EU member states that they should be entrusted with the power of protecting our rights? This is a question that Sumption does not ask—perhaps because it admits of only one answer.

In 1992, Israel enacted a Basic Law: Human Dignity and Liberty as a step towards a constitution. This provided that a law contravening the rights enumerated in it would be unconstitutional, and could be declared invalid by the courts. The President of Israel’s Supreme Court, Aharon Barak, then declared that: “The new legislation has taken Israel out of its isolation and placed it in the larger community of nations in which human rights are anchored in a ‘written and rigid’ constitution.”  Is it not time for Britain also to come out of her Sumptionesque isolation?  Ought not Brexit to be our own constitutional moment?