2018 Human Rights Lecture: The Impact of Brexit on Rights

Back in May, in the midst of the referendum campaign on the 36th Amendment to the Constitution, I attended the Law Society of Ireland where I delivered the 2018 Annual Human Rights Lecture. I had been asked to speak to the topic of ‘The Impact of Brexit on Rights’ and delivered a lecture that looked at this from three angles: protection of rights in the UK generally after exit day, the protection of rights in Northern Ireland in particular, and the future of a ‘Europe of rights’ in a Brexit context. The full text is available on the Law Society website here, but here’s the conclusion:

Brexit [is] an opportunity if not an imperative to re-make the argument for a Europe of rights and to ensure that the European Union operates as such. It can and should inspire us to make once again, and again, the moral argument for European solidarity, and for a post-nationalist solidarity of love and care across our continent. To do that we need to show that a Europe of rights can work, even as, as Ban Ki-moon has said, the world has “reached a level of human suffering without parallel since the founding of the United Nations”.[1]In this, our European Union, many millions of people live in intense suffering: they cannot school their children in their language and cultural traditions, they cannot express themselves freely without fear of persecution, they cannot walk through life without being subjected to sexual and gender-based violence, they cannot access appropriate healthcare including reproductive healthcare, they have no or unsafe homes, they have diminishing security in later life, they experience daily disregard for their dignity especially in sickness and/or old age, and they see around them at all times the deep and deeply rooted inequalities that set the conditions in which European human rights abuses occur.

Remaking the argument for a Europe of rights, thus, requires us both to articulate clearly the moral case for rights, even when their protection may require us to give up some sovereignty or when a rights violation in question seems far from our own experiences. It requires us to see a violation in Ljubljana and Limavady as equally injurious to our humanity; to care as much for our fellow European in Ghent as in Galway; to see our land as much as that of our European co-denizens as of our scattered, intergenerational diaspora.  

It requires us also to press with urgency for a Europe of rights that goes beyond practical and technical solutions to legal challenges and recommits to the true and rich solidarity that underpins the vision of Europe. That may in turn compel us to move on from a Wilsonian idealism that believes democracy and capitalism are the keys to freedom, peace and prosperity. It may require us to question again the ordoliberalism of the Union and its fiscal and economic structures and policies. It may require us to look with more care and more love on our compatriots and enact our esteem for them with more open borders, more supportive socio-economic models, and more welcoming hearts.  

This is not to say that some of the challenges thrown up by Brexit are not amenable to technical and practical solutions; of course they are. The nature and status of retained legislation in the UK is a matter, partly, of technical legal design. The operation of an all-island system of rights and a near-invisible border between the two jurisdictions can be resolved with a set of technical solutions. But even these technical and practical solutions will not work without an underpinning commitment to rights between all of the relevant stakeholders: the member states, the European Union, and the peoples of Europe and of these islands.

Technocracy ultimately fails because it conceits to divorce the technical from the political; when it comes to rights these two cannot be separated. If the reaction to Brexit is merely to seek technical and practical solutions without attending to the root causes and their potential persistence within the European Union then the setting for further ‘_exits’ will remain undisturbed, and the price may well be far greater than any us care to consider.

In Whatever you Say, Say Nothing, from which I have already quoted, Seamus Heaney closes with words that seem apt for the situation we find ourselves in now:

Competence with pain,

Coherent miseries, a bite and sup,

We hug our little destiny again.

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Triggering Article 50: The task that lies ahead

This week I wrote the Birmingham Brief, a briefly insight from University of Birmingham academics into a matter relevant to current politics and policy-making. All Birmingham Briefs can be accessed here.

On March 29, the Prime Minister will trigger Article 50, starting the official Brexit process. As a result, unless all parties agree to an extension, the UK will officially leave the European Union on 29 March 2019.

The task ahead in these two years is colossal. It is clearly in the interests of both the UK and the European Union (and its 27 remaining member states) that Brexit is orderly. In other words, that to the extent possible, arrangements are made to ensure that agreement is reached in relation to major areas, such as trade, data sharing and data protection, and travel. The UK’s relationship with some particular member states, such as Ireland, will also require special attention, not least to try to find a way to ensure that the Common Travel Areathat is so important to the two countries’ continuing relationships of politics, history, trade, friendship and kin can be sustained. All of the remaining EU27 will have an interest in making sure that their citizens, who reside in the UK, are protected and continue to enjoy security in their lives in this country, and of course the same is true for UK citizens living in other EU states. Continue reading Triggering Article 50: The task that lies ahead

Some reflections on the practical implications of Miller (the Brexit case)

Like many others, I have been thinking about and discussing Miller (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768) with colleagues today. This is the decision from the High Court that the Government cannot trigger Article 50 in order to begin the process of withdrawal from the EU without getting Parliamentary authorisation first.

Put very shortly (and without wanting to get too far into the details of the reasoning per se), this is because the Court found that, as a constitutional statute and one that created domestic rights and anchored EU rights, the European Communities Act 1972 could not be turned to naught by the Executive. The prerogative power had been constrained by this Act, and it was not within the royal prerogative to make even international treaty decisions (such as withdrawing from the EU) that would disturb this domestic statute. In other words, parliamentary authorisation is required before Article 50 is triggered and the formal process of leaving the EU can begin.

There are already, and will in the coming days, be lots of analyses on the reasoning per se from a constitutional law perspective (see, for example, the reflections of Paul Daly, Kenneth Armstrong and Aileen McHarg). My purpose here is to offer a few reflections more broadly on the implications of the judgment, especially for those more interested in its practical meaning for Brexit than in its (unquestioned) broad constitutional significance per se. Continue reading Some reflections on the practical implications of Miller (the Brexit case)