Keep Calm to Address the International and Domestic Law Issues Raised by Brexit

– By : Oonagh Fitzgerald –


Just half a year after the 800th anniversary celebration of Magna Carta 1215 , is it time for English, Scottish and Northern Irish men, women and children to assert their rights as European citizens?

A referendum held in the UK last Thursday threatens to deprive them of what they had come to believe were their birth rights: the rights to travel freely between Europe and the UK, and to share in the regional goals of collective peace and security, sustainable development, human rights, cultural diversity and economic integration. These rights are too significant and fundamental to be swept away by the choice of the majority on a referendum.  The strong reactions in Greater London, Northern Ireland and Scotland, where voters had overwhelmingly supported the Remain option, suggest what is needed now is thoughtful reflection about how to deal with this vote and how to reconcile it with the requirements of domestic and international rule of law, human rights, peace and security.

European statespersons understandably reacted with shock and dismay, as though this vote result is actually a sovereign act, which it is not. It is simply an expression of a somewhat grumpy population.

If the sovereign must act within the rule of law, it is undeniable that the people must do so also.  How can all the laws that bind a nation be swept away by the majority’s answer to the question, “Should the United Kingdom remain a member of the European Union or leave the European Union”?  In fact, they cannot, and in order to give effect to the vote there would need to be extensive effort to amend international obligations and domestic law. Regardless of the popular vote, the English, the Northern Irish and the Scottish have a right to rule of law. That is the law that was forced upon King John I in the 13th century, and built upon over the centuries by judges of the Common law, by statutes of Parliament, by the international agreements that created a unified Europe after the horrors of two world wars, by the statutes of the European Parliament and regulations of the European Commission, and by the decisions of the European Court of Justice and European Court of Human Rights.  All law that can possibly still exist must be interpreted as continuing to exist because international and domestic rule of law necessarily prefer order to chaos.

In the discussions following the vote, it has become clear that no one knows precisely what the vote means from a legal perspective as the referendum language does not specify what laws would be changed. By the laws of nature, the UK left Europe a long time ago and remains separated by a watery channel. By the laws of people, however, they are bound in many ways, and the vote did not articulate which of those ties must be broken. International and domestic rule of law must prevail until this specificity can be determined.

Prime Minister Cameron blundered by allowing this referendum to proceed without planning for its legal and political consequences.  European statespersons understandably reacted with shock and dismay, as though this vote result is actually a sovereign act, which it is not. It is simply an expression of a somewhat grumpy population. This is not how international law is made or undone.  International law is made through international negotiation by the UK Executive branch, acting in a representative democratic capacity, and given force within England, through Parliamentary enactment. In this case we have a resigning Prime Minister, who may have realized how impossible it would be to negotiate intelligibly for the UK sovereign on the basis of the referendum result.

What is needed is a government with the intellectual and moral authority to responsibly take the helm of state and steer the UK out of this disaster of its own making, to address the groundswell of ill-humour demonstrated by the vote, to reassure the Scottish, Northern Irish and English citizens who insist upon their rights as European citizens, and to address constructively the fracture with Europe.  This may sound disappointing to the Leave voters, but it is realistic and prudent.  There needs to be a clear message to Brussels that the UK government is studying the results of the referendum; that the vote does not necessitate, and should not be interpreted as, an invocation of Article 50 of the Treaty on European Union; and that the UK will take advice on the appropriate course of action consistent with and respectful of domestic and international rule of law.  If ever there was a time for a strong UK Civil Service, this is it.  They need to start dampening the fires of intemperance burning on both sides of the English Channel.

There will need to be a painful and painstaking process of reviewing domestic and international laws to determine what ought to be changed to address the majority’s generalized desire to “leave” without destructively setting UK citizen against UK citizen while considering what can reasonably be negotiated with European partners. By removing the European rights currently enjoyed by English, Scottish and Northern Irish, the Prime Minister may risk not only removing the UK from Europe, but breaking up the UK itself. It will be crucial in this dangerous and uncertain climate to keep calm, and not alienate the UK from international and domestic rule of law.


Copyright 2017 the Center for International Governance Innovation. This article was first published by the Centre for International Governance Innovation and is reproduced here with permission.

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