Conor Gearty – The British constitution, Brexit and human rights
The flexibility of the British constitution, once thought to be such a strength, has played a large part in destroying the country. In this edited version of a recent lecture delivered in Cambridge, Professor Conor Gearty (LSE) explains why he now believes more than ever that only the experience of no-deal will bring Britain to its senses.
‘There was an old lady who swallowed a fly
I don’t why she swallowed a fly.
Perhaps she’ll die?’
Thus starts the old nursery rhyme that doubles as not only a scary bedtime tale for three year olds but also, I suggest, as a perfect morality tale for Brexit Britain. The story continues with increasingly horrific swallowing in pursuit of a solution to that initial, fatal ingestion and – spoiler alert! – ends badly.
Well, in our contemporary morality tale, it is the British people who have swallowed parliament, parliament that has swallowed the government, the government that has swallowed law and the result is the same as in the nursery rhyme when the horse gets swallowed: ‘She’s dead of course!’
So how does this analogy work? Consider first the people, by which of course we mean primarily the expression of ‘their’ will via referendum. The European Union Referendum Act 2015 declared itself ‘An Act to make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union.’ Section one made clear that the holding of such a plebiscite was compulsory and set out the question that had to be asked. Section two identified who was entitled to vote, and various other sections and schedules deal with the detail. Nowhere in the Bill or enacted measure is there any reference to the effect of such a vote one way or another.
As a House of Commons Library briefing paper (pdf) put it at the time of its introduction, the Bill ‘does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.’ There was plenty of learning in the textbooks and among constitutional experts in Parliament confirming this was the case. Indeed in the past when Parliament has wanted a referendum to be binding it has gone to the trouble of saying so, as was the case with the (defeated) referendum on changing the voting system in 2011.
Now lawyers like myself may regard it as a sad fact, but it is a fact nonetheless, that law does not govern political practice. And whatever the precise legal position, the government of the day have regarded the referendum outcome as binding. And in a system so rooted in constitutional conventions, thinking makes it so. Labour (led it is said by a closet Brexiteer) did not fight the assumption and the smaller (but after the 2017 election critical) Democratic Unionist Party of Northern Ireland shared this view. When the matter came before Parliament at the insistence of the courts, the vote at second reading in the House of Commons to deliver on the referendum result by sending a notification of departure to the EU was 498 to 114. As the various arguments in favour of Brexit have drifted away so its protagonists have fallen back with ever-increasing levels of passion on a narrow procedural point with which to make their case: the people have spoken. None seem unduly disturbed by the fact that the people had already spoken – in 1975 – so there must be on their part some sense of a possible return to the issue, as they would surely have insisted had the result been the other way. But voting to live can be revisited whereas voting to commit suicide, if acted upon, is bound to be a one-off.