Constitutional law, Brexit and the Bhopal encounter

by Pratik Datta, Suyash Rai, Shubho Roy.

Your representative owes you, 

not his industry only, 

but his judgement; 

he betrays, instead of serving you, 

if he sacrifices it to your opinion. 

-- Edmund Burke (1774)
 

The UK has been a member of the EU since 1973. In June 2016 it conducted a referendum under the European Union Referendum Act, 2015 about whether it should withdraw from EU. The majority was in favour of withdrawal - commonly referred to as Brexit.

For many people with a simplistic understanding of democracy, that was that. The people had spoken, and democracy was supposed to reflect the will of the people. Theresa May's government intended to act on this majority will and withdraw from EU.

This would have affected rights of UK citizens (especially the minority anti-Brexit group) under the UK's domestic law - the European Communities Act, 1972 (ECA). Yesterday, the English High Court prevented this. In a major constitutional ruling, the Court held that UK Government (the executive) cannot initiate the formal Brexit process and affect rights of UK citizens under ECA. ECA rights were given to the UK citizens by the UK Parliament and only the UK Parliament can by vote take away those rights. This principle has immense relevance to India in light of the recent police encounters in Bhopal.

The question before the Court

For any EU Member to withdraw from EU, it has to give a notice to the European Council under Article 50 of the Treaty on European Union (TEU). Therefore, for UK to withdraw, it also needs to give a notice. The constitutional question before the Court was whether the Crown (the executive) can give this notice unilaterally, or whether this needed to be voted upon by the UK Parliament.

Basics of UK's constitution

As in any democratic state, in the UK, the State has three wings:

1. Legislature: Which makes laws - UK Parliament
2. Executive: Which implements laws - Crown
3. Judiciary: Which adjudicates disputes regarding implementation of laws - Supreme Court, High Court etc

Unlike most other countries, UK does not have one written constitution. However, for the present purpose, three constitutional principles are well accepted:

1. The UK Parliament is sovereign. It can write whatever law it wants to, unless it itself has restricted its own power to write such a law.
2. The Crown (the executive) has prerogative powers if there is no Parliamentary law on that subject. Prerogative powers cannot be used by the Crown to alter Parliamentary law.
3. The Crown can exercise its prerogative powers to enter into or withdraw from treaties.

When the Crown enters into international treaties, it imposes international obligations on UK. Such obligations could affect the rights given to UK's citizens under UK's Parliamentary laws. But the constitution says that the Crown cannot use its prerogative powers (treaty making powers) to alter UK's Parliamentary laws. Therefore, a treaty entered into by the Crown cannot affect rights given by UK Parliament to UK citizens, unless it is ratified by the UK Parliament.

EU laws v. UK laws

EU laws are of two types:

1. Directives: These require Member States to amend their domestic laws.
2. Regulations: These automatically override the domestic laws of Member States.

Before joining the EU, the UK Parliament was sovereign and UK Parliamentary laws were supreme. But the condition precedent for joining EU was to allow EU laws to override the UK Parliamentary laws. Otherwise, that would be breach of the EU Treaty. Therefore, to allow EU laws to override UK Parliamentary laws, the UK Parliament passed the European Communities Act, 1972 (ECA). The ECA enabled EU laws to be treated as domestic UK laws which could override contrary UK Parliamentary laws.

The issue with Brexit

The ECA is a UK Parliamentary law. It gives UK citizens certain rights by incorporating the EU laws into UK's domestic laws. For example, UK citizens could enjoy reciprocal rights of movement in other EU member states. UK citizens also had the right to seek reference to EU Commission to take regulatory action in relation to a violation of competition law in UK.

If a notice for Brexit is given, the UK will no more be an EU Member and UK citizens will lose the above rights. For example, if UK is no more part of EU, a UK citizen cannot enjoy the reciprocal treatment in another EU member state or to refer a matter to the EU Commission. Now, if the Crown issued this notice initiating Brexit and abolishing the rights of UK citizens, it would effectively amount to the Crown altering the rights given to the UK Citizens by the Parliamentary law - ECA. In other words, if the Crown uses its prerogative power to trigger the Brexit process, it will effectively alter the rights given to British citizens under UK Parliamentary law. And that would be unconstitutional!

Consequences of the judgement

Although the High Court's decision may be challenged, the judgement is well grounded in constitutional law jurisprudence and is very well drafted. There is a high probability that the Brexit issue may now be voted upon by the UK Parliament. And the Parliament will not be bound by the decision in the referendum; it will only be advisory in nature.

On the face of it, the judgement defeats the popular will of the people expressed in the Brexit referendum. But in spirit, it is a major win for rule of law and democratic institutions in UK.

Relevance for India

This cardinal principle of constitutional democracy has much relevance for contemporary India. Too often, in India, people fail to see the concepts of a representative democracy as opposed to a direct democracy.

Recently, the Madhya Pradesh police shot dead eight under-trial prisoners after they allegedly escaped from a jail in Bhopal. Media reports suggest that the policemen had orders to kill the under-trials. There was no intention to arrest them. A section of the Indian population feels such extra-judicial encounters are justified. And legal procedures like CrPC are unnecessarily cumbersome.

What they tend to overlook is that a representative democracy is not the same as rule by majority. In a representative democracy, citizens elect their representatives for every five years or so. The representatives are accountable to their respective constituencies and that shapes their individual decisions. But once in Parliament, they are not mere ambassadors from their constituencies. The Parliament is a deliberative assembly of one nation, with one interest - that of the whole. In Parliament, the representative must apply his own judgement and take a decision not for local purposes but for general good. That is why in a representative democracy, direct referendums on all issues are neither required nor desired.

And once such elected representatives have made a law in Parliament, that law binds every citizen. The majority of citizens may not like a law but they cannot directly vote and override it. Similarly, the executive may not like a law, but it cannot override it either. Both the executive and the majority cannot override a law made in Parliament by the elected representatives. To do so, they have to elect the appropriate representatives who will change the laws in Parliament.

India is a representative democracy with a constitution. The elected representatives in the Indian Parliament chose to enact laws and give certain rights to under-trial prisoners. The executive (including police) acting on majority will cannot take away those rights. For that, the majority has to act through its representatives in the Parliament and get the law amended. The Brexit judgement reiterates this fundamental principle of a representative democracy.