The looming withdrawal of rights in Britain is so unusual, it is hard to see how it will play out. What does "taking back control" mean in practice?by Vernon Bogdanor / April 18, 2018 / Leave a comment
The European Union Withdrawal Bill seeks to do something quite unprecedented in the constitutional history of the modern world. By withdrawing Britain from the EU, it will turn a protected constitution into an unprotected one.
This is much less appreciated than it should be, because—on the face of it—the Withdrawal Bill is as soothing as it can be, all about providing for continuity. The bill provides for the incorporation of 44 years of EU law into our domestic law, to avoid the creation of a great legal vacuum at the moment of Brexit, in March 2019. Only later, and working to the UK’s own timetable, will it then be for the British government and parliament to decide which retained EU laws to keep, which to modify, and which to repeal altogether.
There is nothing unprecedented in this process of incorporation in itself. During decolonisation, Britain conferred continuity on the legal systems of the ex-colonies by providing them with constitutions that incorporated British law into their own legal systems. The new states then decided which laws to retain and which to discard. The same process occurred with the 26 counties of Ireland which became the Irish Free State in 1922.
But there is a crucial difference between all these historical processes, and what we are now doing in withdrawing from the EU. They were moving from an uncodified and unprotected constitutional system—based on the sovereignty of the Westminster parliament—to codified and protected systems. We are doing the opposite—moving from a codified and protected system to an uncodified and unprotected one. We are moving also from a system in which our rights have been enlarged to one where some of our rights will in effect have been abolished. Indeed, there is one important area of legal protection, so-called equality law, where there will suddenly be at least the potential for most of the safeguards that British citizens today enjoy to be swept away (see Schona Jolly, overleaf).
Our entry into the EU transformed the British constitution. Far from returning us to the status quo ante, Brexit could yet provoke a constitutional clash that could transform it even more.
Protected constitutions have evolved around the world over the last several centuries in order…