Before a central London audience earlier this month, Charles Brasted, partner and head of public law and policy at Hogan Lovells, and leading QCs Tim Ward, Jessica Simor and Gerry Facenna reflected on the likely impact of the UK’s withdrawal on commercial human rights law and the constitutional settlement in England and Wales. There was something for everyone in the balanced and varied positions assumed by the panel members: some emphasised the flexibility of the common law as an effective means of responding to the loss of EU law rights; others noted the Brexit-driven rise of executive power at the expense of the UK’s constitutional foundations.
Brasted sought to stress the growing importance of human rights arguments to businesses seeking to challenge government decisions and noted that all may not be lost come Brexit: “Our relationship with the European Court of Human Rights and Convention will be unchanged by Brexit broadly. I will shy away from speculating as to whether the long threatened human rights reforms of the Tories are closer or further than they were before. I merely note they have proven somewhat undeliverable to date“. The conclusion? Public law challenges grounded in Convention rights are safe (for now) and have become a wholly conventional basis for commercial judicial review.
However, he went on to underline the significance of EU treaties and EU law principles in the context of challenges to UK public law decisions, regulation and legislation – treaties and principles which will likely cease to apply in post-Brexit Britain. Not only do they provide strong remedies in damages, they provide safeguards against state actions that inhibit competition and commercial freedom. And while the judiciary has been keen to emphasise the non-statutory common law basis of certain EU law concepts, it may struggle to fill the void that Brexit will create in our system of administrative law.
Indeed, the European Union (Withdrawal) Bill, which was published last week and constitutes the focus of the Government’s strategy for legislating for withdrawal, confirmed the Government’s intention to ensure the Charter of Fundamental Rights of the European Union does not form part of UK law following Brexit. In light of the more extensive protection granted by the Charter, as compared to the Convention, it is highly likely that avenues of public law challenge will be reduced.
Jessica Simor QC, in contrast, chose to hone in on a single theme: loss. The loss of constitutional rights enjoyed by business; the loss of procedural rights; and the loss of democratic rights due to Henry VIII clauses. For the last sixty years, businesses have been guaranteed the four fundamental freedoms, the constitutional core of the single market, underpinned by the most important of all human rights – the right to non-discrimination and the right of access to the courts. But come March 2019, the remaining EU27 will be free to discriminate against goods and services from the UK, a third country floating beyond the Union’s north-western border.
After briefly discussing the loss by companies of their ability to enforce trade rights through direct actions in the courts, and the possible loss of their ability to enforce civil judgments via the Brussels Regulation, Simor moved on to the focus of her argument: the loss of democracy and the rule of law as a consequence of Henry VIII clauses. Such clauses allow the executive to amend primary legislation using secondary legislation with no parliamentary scrutiny, and the pre-election White Paper indicated that a then supine parliament would readily grant such powers for an ill-defined set of (formerly Great) Repeal Bill-related purposes. This, she claimed, is very much at odds with democratic norms. But in a wry conclusion, she observed that even Henry VIII did not obtain such powers. The Statute of Proclamations (said to be the origin of the concept of the Henry VIII clause) provided him only with a right to have his prerogative writs enforced by a Council and specifically guaranteed acquired rights would not be removed. Moreover, it ultimately failed and was repealed after only 8 years on the statute book.
The now-published Repeal Bill confirms Simor’s prescient analysis. Ministers are to be empowered to amend primary legislation to deal with “deficiencies in retained EU law” arising from withdrawal, to remedy any breach of the UK’s international obligations caused by withdrawal, and to implement the terms of the withdrawal agreement reached with the EU. And that’s just for starters. The Government has also proposed a more general power to allow ministers, by regulations, to “make such provision as the Minister considers appropriate in consequence of this Act“. Yet while these powers are likely to prove highly controversial (particularly the latter), it is worth noting that an alternative method of speedily transposing EU law into UK law without deficiencies is yet to be proposed.
Finally, Gerry Facenna QC of Monckton Chambers sought to allay the audience’s fears with an exploration of the common law equivalents to the two core commercial human rights: the right to property, in all its various forms, and the right to privacy and confidentiality. In light of the protections in domestic common law and under the Convention, companies may not be losing very much in terms of fundamental rights protection, he argued, although there are undoubtedly substantive EU commercial rights that will be lost. Similarly, he noted that the Supreme Court in particular has been moving toward emphasising the common law protections for procedural rights relied on by business.
It is hard to disagree with anything said by the speakers at the event, but if you would like to make up your own mind, you can watch the recording here.