affiliated to the International Association of Constitutional Law
When I teach UK constitutional law to my students we often discuss the relationship between UK parliamentary sovereignty and the rule of law, and the tensions that inevitably occur in a liberal democratic society between the ruling executive/legislature and the judiciary. One thing that is readily apparent is that these tensions – which have for some time been adequately managed in the UK via the Human Rights Act declaration of incompatibility mechanism and a general judicial deference towards Parliament – are now in danger of spinning out of control. This is likely to have significant negative consequences for the protection of human rights in the UK, and may lead to a sharp narrowing of what we conceive of as the rule of law.
From parliamentary sovereignty to populist sovereignty?
As has been stated by several commentators, in the aftermath of Miller v Secretary of State for Exiting the EU the attacks made on the judges in the media severely threaten the independence of the judiciary, and come close to outright intimidation. Chief among these critics is, of course, Nigel Farage, leading light of the UK Independence Party. The particular focus of his populist critique of the judiciary is worth taking seriously, as it indicates the challenges the rule of law may be facing in the years to come, as we adjust to the new post-Brexit, post-Trump, populist environment.
When Farage dismissed the outcome of the case – that the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union, and thus Parliament must vote on Article 50 – he openly stated that he did not care a jot about parliamentary sovereignty: what he focused on was the ‘sovereignty of the people’ (a principle found nowhere in the UK’s uncodified constitution apart from the institution of representative democracy in Parliament, the very thing Farage was disparaging). Here, there is a sense that the outcome of the Brexit referendum has brought us to a situation where popular sovereignty – or if you are more pessimistic, the tyranny of the majority – has taken on a life of its own within the UK. It may be for this reason that the Prime Minister and Lord Chancellor are so afraid to robustly defend the judiciary – they are keenly aware that there is indeed a populist constituency that views anybody who stands in its way as ‘enemies of the people’.
There is a clear parallel between Farage’s disparaging of one of the fundamental tenets of the UK constitution, and Donald Trump’s outright contempt for the US constitution – and its judicially enhanced prohibitions on discrimination on the basis of e.g. race and religion. Trump, however, has a significant advantage over the UK’s populists in that he will have the power to stack the US judiciary with judges who believe the US constitution is a sacred document – but only in its 18th century incarnation when it was essentially a document that protected white male privileges. In the UK, meanwhile, we can expect a lot more populist agitation – in the media and in terms of popular protest – about the ‘radical’ and ‘anti-democratic’ nature of the judiciary, even when it makes decisions, as in Miller, where it comes down on the side of the state’s democratic institutions rather than justifying an executive prerogative power deriving historically from the Crown’s divine right.
Rejection of human rights as a fundamental part of the Rule of Law
Furthermore, in the new populist environment, contempt for fundamental principles of the domestic constitution goes hand in hand with a firm rejection of the idea of universal or international human rights and liberal values. One of the lessons politicians are drawing from the success of populists like Farage and Trump is that it is possible to become successful and attain power precisely because you jettison the language of human rights and liberalism, and speak directly – often in apocalyptic terms – to people’s worst fears and insecurities. If the current wave of populism continues, it is entirely conceivable that the UK could leave the EU and repeal the Human Rights Act (and even withdraw from the European Convention on Human Rights/Council of Europe entirely), all to populist acclaim. These are things thought extremely unlikely even a few years ago; yet we are undoubtedly in a new climate where the West seems to be turning its back on values long thought central to its politics.
It might seem speculative, but given the unprecedented nature of our times it is worth pondering where this trend may lead. In the UK context, if the above takes place the initial effect may be a rolling back of the ‘thickening’ of the rule of law that has taken place, post-Human Rights Act. We may see a move back to a thin concept of the rule of law, more similar to that of AV Dicey’s than Ronald Dworkin’s. From there we may see a legislative weakening of common law rights, particularly in the anti-terror context, including restrictions on habeas corpus and on judicial review. The effect of this on society could be to further dehumanise some of the most vulnerable people in society, particularly terror suspects, refugees and immigrants, who are already frequently spoken of in deliberately alarmist terms like ‘swarm’.
It is certainly plausible to imagine a situation in the decades to come where the ‘rule of law’ and the expertise of the UK judiciary come to be valued and recognised primarily in the field of commercial law – where legal reasoning and the careful resolution of complex disputes over capital and property rights remain greatly respected skills by a wide range of powerful actors, from business owners and populists like Farage, to oligarchs and venture capitalists. The recent cuts to legal aid have already had the effect of sharpening the divide between solicitors and barristers working in the lucrative commercial fields of e.g. patent litigation, maritime law, mergers, etc. and those working in the area of public law. If things go on as they are, we can only expect this shrinking of public law to continue.
Looking ahead, the fact that human rights and liberal values are often used as a weapon by populists like Farage, Le Pen and Trump to beat Muslims with – e.g. look at the actual misogynists; Islam equals intolerance etc. – does not mean we, as societies held under a new populist majoritarian sway, will have a genuine interest in protecting these values any more. In the same way that the UK’s ‘proud record’ and ‘past generosity’ towards refugees is now used as a justification for not taking in refugees, it is abundantly clear that liberal values can endure as identity signifiers even when they are abandoned as moral guidance for how we ought to behave towards others (via the enactment of legal rights). In this respect, liberal values become who we are, not what we do. The more draconian elements of the Prevent strategy, where children can be reported to state authorities for making relatively innocuous comments, or the forcing of Muslim women to take off their veils at French beaches may be examples of this phenomenon, and more are likely to follow. The upshot of all this – which I admit is speculative at this stage – is that the new populism may lead us in the direction of an illiberal democracy.
Can what is happening be resisted?
Some of the above discussion may appear over the top – even hypothetical – but at this time when the unthinkable has become materially apparent, lawyers must be prepared for such eventualities. We cannot merely rely on the UK’s ‘proud tradition’ of civil liberties and judicial independence lest it become an empty statement that allows us to depart from that very tradition. Above all, those of us who believe in the rule of law and human rights may need to accept that we may need to fight all over again the battles that we thought had already been won – on women’s rights, on the rights of ethnic and religious minorities, and on the importance of constitutional checks and balances – and that we will have to do so from a position of historic defeat.
Dr Luke McDonagh, Lecturer, Law School, City, University of London
(Suggested citation: L. McDonagh, ‘What Future for the Rule of Law and Human Rights in the New Populist Environment?’, U.K. Const. L. Blog (18th Nov 2016) (available at https://ukconstitutionallaw.org/))