By Eustace Davie*
Brexit is the consequence of a clash of fundamental legal/philosophical values that are not visible to the casual observer. Deep-seated values that represent part of the British constitution which is made up of the freedoms of individuals determined by the courts and by generally accepted conventions.
That it is the Brits and not one of the other countries that has voted to exit the EU is therefore not surprising. The British history and legal system made an enduring melding of governance problematic. There is no written constitution to which the EU bureaucracy could refer if they were to attempt to avoid a clash.
AV Dicey in Introduction to the Study of The Law of the Constitution wrote that “two features have at all times since the Norman Conquest characterised the political institutions of England. The first of these features is the omnipotence or undisputed supremacy throughout the whole country of the central government. The second of these features, which is closely connected with the first, is the rule or supremacy of law.”
Dicey wrote that foreign observers, such as Voltaire and Tocqueville were struck, far more than Englishmen themselves with the fact that England was a country governed, as was scarcely any other part of Europe, under the rule of law. The vast bureaucracy that has grown in Brussels for the purpose of issuing regulatory instructions to EU member states is alien to the fundamental nature of British law, making Brexit inevitable.
Whereas other members of the EU would have been accustomed to taking orders from the bureaucracy, the British general public would not take kindly to the process.
“When we say that the supremacy of the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions,” wrote Dicey.
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First, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.
Second, speaking of the ‘rule of law’ as a characteristic of the country, means that no one is above the law, and everyone is subject to the ordinary law of the country and amenable to the jurisdiction of the ordinary courts.
The Brexit referendum provided voters who had opted out of British politics an opportunity to get back in. https://t.co/M4Dbqm31J0
— Foreign Affairs (@ForeignAffairs) July 6, 2016
“There remains yet a third and different sense in which the ‘rule of law’ or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.”
Establishing a European free trade area had a great deal to commend it. Extending the relationships between the various nations comprising the EU beyond free trade to regulatory regimes was bound to cause friction. Not fully understanding the functioning of the British legal system and the liberties to which the British people are accustomed under the law, it is not surprising that the Brits would come to resent the regulations emanating from Brussels.
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There have been rumblings for some time over various issues. One of the main problems has been the growth of a huge EU bureaucracy in Brussels, which, according to reports, is not accountable to the members of the EU. The member countries, on the other hand, are subjected to a multiplicity of regulations on a wide range of issues.
New problems are constantly arising, with country governments being told, for instance, that they do not have control over the granting of permanent residence to people coming from other parts of the EU. Decisions regarding the acceptance of refugees has also caused dissent. This latter issue appears to have played an important role in swinging the British vote towards “leave”.
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When counted, the unexpected Brexit vote to leave the EU came as a shock to the participants in the referendum. The British government, including Prime Minister David Cameron, were so sure that the vote would favour remaining part of the EU, that no time was spent on preparing for a “leave” result. While the majority of Londoners voted to remain part of the EU, as did Scotland and Northern Ireland, the people living in the smaller towns and villages around the country determined that “enough was enough!”
Doom and gloom hovers in many quarters but that will not include the canny Brits who decided to take back their country. Their forebears fought too many wars to allow them to meekly hand over control of their country to Brussels. They will happily live with the fact that their opponents are incensed about their loss. The British have acted independently for many centuries and reverting to independent action once again through Brexit should not provide them with too many difficulties.
- Eustace Davie is a Director of the Free Market Foundation.
