You may not have heard of Brexecutive Power, but if Theresa May has her way, you’ll certainly experience its effects. Brexecutive Power is the executive’s exploitation of the vague mandate of the referendum to overrule institutions as diverse as the House of Commons, House of Lords, Holyrood, Stormont, the Welsh Assembly, the Queen, the High Court and of course, Brussels. It’s scary, it’s against the spirit of our unwritten constitution, and it’s happening now -- unless we do something to stop it.
How Theresa May manages to detach the free movement of goods, services and capital from the free movement of people, will be the defining question of her premiership. The associated task of disentangling the UK’s economy, law and politics from the EU is a process that has never been undertaken before and whilst technically possible, is extremely daunting. What is now clear is that she will use as many of the powers available to the office of Prime Minister as possible to get this done. It is hard to underestimate how alarming the use of this executive power could be for human rights in this country.
Theresa May is intent on using outdated powers to override the parliamentary process. It is extraordinary that she continues to fight the Article 50 case when senior judges reasserted the sovereignty of Parliament.
More concerning still is that Brexit could entail the removal of the human rights protections afforded by EU law and the EU Charter of Fundamental Rights. The government stands to gain further powers, at a time when the Prime Minister is stretching her powers to the absolute limit. This is deeply concerning. Alongside the free movement of goods, services, capital and people, we are now in an era of the free movement of data and the free movement of environmental degradation. These are just two examples to show how the EU has lead the way in protecting UK citizens for many years.
One of the key manifestations of environmental degradation, in the UK has been air pollution. EU law has allowed us to expose the government consistently ignoring commitments that they should end the preventable levels of air pollution.
According to the environmental law firm ClientEarth’s Alan Andrews, “At least 29,000 people die every year as a result of air pollution in the UK. Every government department has a responsibility to protect human health by complying with air quality limits.”
We were only able to fight for cleaner air because of explicit rights and obligations set out in EU law. On Brexit, without UK citizens’ rights being updated in domestic law, the government could be free to acquiesce to the deaths of thousands every year from polluted air.
Brexecutive power also stands to gain substantially in our increasingly data-driven society. The free movement of data is set to become a very important battleground between commercial rights/consumerism and the rights of the individual for years to come. The development of online rights to privacy under the EU Charter of Fundamental Rights have not only surpassed UK laws and provided a check on state practices but are set to become a global authority on how we balance the extraction, storage, transfer and deletion of data in a fair and just way.
To date, UK governments have shown little regard for the rights of citizens’ data as a subset of their self-identity. Without explicit rights enshrined in UK domestic law, incorporating specific protections for the individual, the world portrayed by TV series Black Mirror may not be far away. After the draconian Investigatory Powers Bill was rushed through parliament, do you trust our politicians to prevent information about your life being commodified and used in ways in which you have no control? Even if you do, why would you leave such power down to trust and not codified in the structure of enforceable and accountable rights?
89up thinks that UK citizens’ EU Charter rights such as those on the environment and data should be more prominent during the current discussions on Article 50, Single Market membership and Parliamentary sovereignty. Charter rights affect how we as people and as a country will experience free movements of goods, services, capital, people, data and environmental degradation for many years to come.
This is even more important as we realise what it feels like to live through the resurgence of nationalism and the reorientation of geopolitical power towards autocrats and populists. Politics has got ugly, fearful and angry and that is proving a fertile ground for hard right-wing politicians currently seeking to obtain and retain office. A lot of the promises being rhetorically fed to the disenchanted will not come to pass and a lot of people will be upset when they realise this. Focusing on our common values and principles and how we shape them into accessible laws is an easy and effective beacon beyond the politics of the paranoid.
Please donate to ‘They’re Your Rights: Fight for Them’ our new campaign to have EU law and Charter rights enshrined in UK law, no matter what happens on Brexit.
Sashy Nathan, Director of Advocacy and In-house Counsel at 89up