There is an undercurrent in some discussions about Brexit that part of the problem is that we Brits are fed-up with and inclined not to care about rules and law.
Certainly I always found it a constant topic raised by constituents when I was an MEP to complain about EU rules and regulations. However, when you asked the complainant to point to any specific regulatory culprit few, if any, could. This is a strange malaise from a nation that normally prides itself on its inherent sense of fair play and apparent willingness to behave in a ‘sportsman like’ manner. Now it seems we are ready to ignore the rulebook of international treaties and just head for the exit whatever the consequences.
Perhaps the issue is that at the golf or cricket club we are close enough to the action to see how the rules are made whereas in terms of our governance, be it national or European, we have lost sight of and understanding for the legislative process. We simply don’t care how the law is made anymore; we just don’t want it. Or do we?
The disconnect with the legislative process and the implications for our democracy and the rule of law were at the heart of the Annual Bingham lecture delivered at Grays Inn this week by Lord Judge. He started with a history lesson taking us back to the early sixteenth century when parliamentarians risked execution to protect and protest their legislative rights against a growing executive power of the King. Where asked Lord Judge are those brave parliamentarians now?
He continued by describing the tsunami of legislation confronting parliamentarians today, which means that detailed and adequate scrutiny is almost impossible. At the moment, huge quantities of contemporary law is simply allowed to sail through unchecked as secondary legislation; completely constitutional but we should not assume that this means it equates with the principles of the rule of law. The system is about to be further strained over the coming years by the Brexit process.
Lord Judge also gave a telling example from the recent Wales Act, which starts with a celebratory political fanfare (not legislative) about the devolution of powers to the Assembly. However, in a later ‘legislative’ provision the Secretary of State is seemingly granted powers to override the devolved Assembly. Thus the reality is that centralised government power remains supreme; devolution is undermined. We seem unable or unwilling to think in a constitutional manner to guard against this growth in centralised executive power.
It set me thinking about my time in the European Parliament. This is a young Parliament jealous of the increasing legislative and scrutiny powers it has fought hard to wrest from the Commission and Member States over the years. Every legislative committee meeting had the presence and ready advice of the Parliament’s Legal Service. Commission proposals, which even vaguely threatened the Parliament’s legislative power, would be referred for a careful check to the Parliament’s Legal Affairs Committee. Parliament scrapped and protested to open up the means of dealing with legislative implementing measures through use the comitology process. In addition, after the Lisbon Treaty, I saw at first hand, as part of the team that agreed the implementing provisions of the Treaty with the Commission, how we ensured among other things the rights of the Parliament in international negotiations; rights that we now see go far beyond what many national parliaments, particularly our own, at Westminster enjoy. This is exactly why Brexit can never be done in secret.
It might seem unlikely but the European Parliament, in reality, could give its Westminster counterpart a lesson or two in standing up for transparency and democracy. Of course, the European Parliament took on these fights on behalf of Europe’s citizens trying valiantly to create a more democratic Europe. Yet the truth is the British public feels itself remote from (or disinterested) in both legislative processes. This disconnect with lawmakers, be they judges as ‘enemies of the people’ or parliamentarians, is deep and growing. This is dangerous for we are about, so it seems in this very presidential feeling General Election, to hand a big majority to an increasingly unchecked government. Parliament needs a renewed sense of its own importance, not for itself, but because of the democratic mandate and scrutiny power it exercises on behalf of all of us. This is an election where we need parliamentarians who are both close to their electors and careful legislators. Only in this way will the rule of law and the fair play we have always been so proud of be protected.