With Brexit looming, environmentalists must fight for a robust, codified constitution
The right to peaceful protest has been highly effective in the hands of the anti-fracking movement in both stalling the fracking plans of energy firms and in raising public awareness of its environmental impacts. However, energy firms are in this for the long term: with deep pockets and government backing, we may see a pushback against local communities and councils who have the temerity to refuse planning applications for hydraulic fracturing.
It is Brexit that is likely to determine the outcome of what happens next; not just in terms of the threat to human rights and environmental protection, but the larger danger to our democracy. All of these threats come together in the form of the EU Withdrawal Bill.
Until now EU law has acted as a brake on government efforts to do away with laws and rights it sees as impeding the efficiency of the free market. The principle of ‘the primacy of EU law’ has meant that courts in the United Kingdom had the power to “disapply” acts of parliament where they conflicted with EU law and human rights. But with our departure from the EU, a cabal of powerful business and political leaders (such as James Dyson, Priti Patel and Martin Callanan) are vigorously advocating a low-regulation, business-friendly environment in place of so-called ‘sclerotic’ EU law with. Conor Gearty points to some of the potential changes which include “Clean air (Heathrow), clean beaches, unpolluted waters….protection of the rural environment” and he adds “these are policy areas which have been largely developed and protected by EU law, often in the teeth of UK hostility”
The avowed aim of the EU Withdrawal Bill is to avoid uncertainty or chaos on exit day, by transposing all EU law into UK law – in effect a huge copy and paste exercise. The guiding principle is that “the same rules and laws will apply after exit as the day before”. Transposed law will then require thousands of minor technical and administrative changes in order to bring it in line with British law, for example to remove names of EU agencies.
However, to achieve this, the bill proposes a vast expansion of ministerial power through what are known as ‘delegated powers’ or ‘secondary legislation’. In effect ministers can make changes to legislation without requiring parliamentary approval at every turn, and it is these vastly expanded ministerial powers that are causing widespread concern both within and outside Parliament. The Government has been at pains to stress that the Withdrawal Bill “does not aim to make major changes to policy” yet in a blatant breach of its word, it has dropped the EU Charter of Fundamental Rights from the proposed Bill. This is a major policy U-turn, not a minor technical change and it sends a clear signal of the governments intent once we have left the EU.
While the Human Rights Act, which includes the right to protest, remains safe for now the Conservative government has voiced a clear intention to replace this act with a diminished British Bill of Rights if they win the next election in 2022. Meanwhile, other clauses included in the EU Bill extend ministerial dictat through the use of special ‘Henry VIII’ powers to amend important domestic legislation without a parliamentary vote. These include the Equality Act 2010, the Modern Slavery Act 2015 and the future Data Protection Act: as the joint briefing by Amnesty International and Liberty points out, the expansion of ministerial power is “without precedent in their scope and effect in the modern era” (see pg2 of the joint briefing)
Brexit was positioned as ‘taking back control’ along with a rhetoric that celebrated a restored national sovereignty through parliamentary governance. In reality a hard-right agenda is emerging in which an increasingly autocratic government, tied to a predatory corporate agenda, seeks to side-line Parliament, dilute our rights and do away with essential laws and regulations on which we all rely.
Under such circumstances protest is not enough. Nor is legislative remedy by a hoped-for Corbyn government: any legislation can always be rolled back by the next returning right wing government. What is needed is a robust, codified constitution that delimits the power of parliament and entrenches a comprehensive bill of rights, including environmental rights. It must also place local government on an independent legal footing with full powers and a final say over planning, housing and the environment. Critically, it must be an explicitly anti-oligarchical constitution designed by ordinary people at a citizens’ convention and mandated by referendum.
Constitutions that entrench foundational laws and rights are deliberately difficult to amend. They require a higher order of democratic approval for their amendment such as supermajorities in both houses or referenda. The scale and ambition of such a project is considerable. But it is do-able if the multitude of protest groups, each siloed to its own specific campaign goals, start to re-frame their goals as part of a much wider theatre of conflict fought on multiple fronts: from the future of the NHS and welfare state, to disability rights, the housing crisis, the crisis in our schools and the hostile climate faced by migrant communities. By recognising common cause and reaching out to each other, a co-ordinated and powerful movement for a constitutional revolution can be achieved.
There is no time to lose and ultimately there are no other options. To let events take their course is simply to cede responsibility to elites to decide the rules by which we are governed. And that would be disastrous for us all.