Led by Dr Hélène Tyrrell and Dr Jack Simson Caird, this lecture teased out a lot of lessons and potential scenarios on how Brexit might turn out. Focusing on its impact on human rights, the constitution and the rule of law, the lecture offered a glimpse of the future, and how politicians and judges are affecting it.
According to Dr Hélène Tyrrell, one of the few certainties is that the role of human rights will change, and probably for the worse. In fact, although the Human Rights Act 1998 will still be part of domestic law after Brexit, the Charter of Fundamental Rights no longer will. This essentially translate into judges having less power to enforce human rights, and make it way easier for Parliament to potentially ignore them. In fact, when legislation was found to be incompatible with human rights, judges could disapply it through EU law. However, all that will be possible will be to declare incompatibility of the law to Parliament. This could result problematic, in a system with an already overpowered and chaotic Parliament.
Another risk highlighted in the lecture is the politicization of judges. While before Brexit judges had to ‘take into account’ the decisions of EU courts when deciding a human rights case, after Brexit they won’t be bound by those anymore. This might not be as likely as it seems. Although the role of EU law will become less clearly defined, it will certainly not be entirely irrelevant. In one third of human rights cases, the courts still refer to international jurisdictions, even though they don’t have any legal power over UK courts. This is because, as Supreme Court Judge Lord Reed stated, ‘comparative law will remain relevant, and the influence of the EU law will not end with our withdrawal’.
The chance is that one of the only positives to come out of Brexit will be the increased collaboration between British and other common law judges. However, this will come at a price of the UK losing all influence over other EU jurisdictions, given that they will not be governed by similar laws anymore.
This feature of unity between judges from different jurisdictions is in stark contrast from the attitude of politicians: a comparison was drawn between how looking for outside help is generally avoided by politicians, who are capitalizing on grand ideas to sever all links with ‘Europe’, while it is constantly used by judges to shape the laws that govern this country.
Dr Tyrrell concluded that, while the influence of British judges in other commonwealth jurisdiction will increase, do to it not being bundled with other EU judgments, it will result harder to enforce human rights.
When looking at the constitution and the rule of law through the prospect of a never-ending Brexit, Dr Jack Simson Caird presented several lessons which should been learnt from this process.
Although Brexit is hard to deliver, government is still performing under already low expectations. This is mainly due to a lack of direction, caused by a number of factors: mainly division of the party system and the lack of a plan before actually proposing a referendum. It is no secret that logic was not exactly the selling point for Brexit, but the extent to which is becoming painfully evident. This absence of direction is made worst by two other considerations.
Firstly, even though Parliament has strong legal power, it does not have sufficient political influence: this is evidenced by the lack of input by MPs in the negotiation process. Secondly, the UK is missing powerful and unifying political figures. This can be attributed either to the toxic rhetoric of politics, which is often preferred over reasonable discourse, or to Brexit having deeply divided the country.