Editorial - Feb/Mar 2020

At 11pm on Friday 31 January, after 47 years as a member, the UK left the European Union – undeniably an historic moment. But, for now, little will change and for 11 months, until 31 December, the UK must keep paying into the EU budget and abiding by EU rules. However, as the emphasis shifts to negotiating the UK’s future relationship with the remaining 27 Member States, it’s important to take stock of the major rule of law challenges thrown up since the 2016 referendum.

As our coverage (‘Brexit: referenda a “double-edged sword” for democracy and rule of law’) notes, there are very serious issues to be addressed, and these go much further and wider than the UK’s relationship with Europe. Democracy, rule of law and human rights are in trouble, not just in the UK, but worldwide. Research by Cambridge University’s Centre for the Future of Democracy reveals that public satisfaction with democracy has ‘plunged during the political stalemate following the EU Referendum’. The malaise isn’t isolated to the UK and Brexit isn’t the only cause: the proportion of people dissatisfied with democracy in developed countries worldwide has risen markedly since the financial crisis, reaching 58 per cent in 2019.

Nevertheless, leading figures such as Nils Muižnieks, former Commissioner for Human Rights at the Council of Europe, are clear about the dangers of referenda. He highlights their tendency to target vulnerable groups in society. This point is echoed by Justice Richard Goldstone, Honorary President of the IBA’s Human Rights Institute. ‘Majoritarianism is not democracy,’ says Goldstone. ‘The rule of law and fundamental human rights should always be protected and especially from the majority.’

Muižnieks suggests that, ideally, an institution, such as a constitutional court, would vet the constitutionality of a referendum and the question being posed. This would certainly have helped deal with some of the more contentious aspects of the Brexit referendum: whether it was advisory or binding; funding; foreign intervention; a toothless electoral commission. Instead, the UK is faced with the reverse scenario and troubling suggestions of political control of what ought to be an independent judiciary. This looks very much like a reaction to the Supreme Court’s ruling that the UK government’s attempt to prorogue Parliament had stopped it carrying out its ‘constitutional functions without reasonable justification’. Such troubling moves to undermine the independence of the judiciary, and the separation of powers, must, of course, be robustly opposed.