Today we welcome a guest post by Angela Patrick, barrister at Doughty Street Chambers and the author of a major new report from the Thomas Paine Initiative, Mapping the Great Repeal: European Union Law and the Protection of Human Rights. You can also watch a short video summary of the report above and here.
Winston Churchill apparently once said “let our advance worrying become our advance thinking and planning”. Today, that seems a fine sentiment with which to consider the road to Brexit.
The referendum has triggered the biggest constitutional conversation of this generation. Today, from BBC Breakfast to the pages of The Sun, from Twitter to YouTube, everyone is talking about our unwritten constitution and the separation of powers.
For the first time, a panel of all 11 Supreme Court Justices now sits to consider the important institutional mechanics of Brexit. That leaving the EU may affect our rights – and who has responsibility for that decision, Parliament or Government – is the crux of the issue before the Supreme Court.
However, while the Justices consider the “when” and “how” of Brexit; others on Whitehall and beyond are working on what happens next. An important part of that must include asking just how scrapping decades of EU law might affect how the law at home protects our rights in practice.
The Union is built upon a shared respect for human rights. Each of its members are also members of the Council of Europe and signatories to the European Convention on Human Rights*. A lot of EU law builds on human rights standards to provide greater protection for individual rights. From the ban on long working hours in the Working Time Directive to the protection for the rights of LGBT people in the workplace, an array of labour standards exist to help create a fair playing field for workers moving across the single market.
The new General Data Protection Regulation – which comes into effect in 2018 – will replace the existing EU data protection standards reflected in the Data Protection Act 1998. EU export bans prevent torture tools being sold to countries where they may be used to violate the most fundamental of human rights guarantees. Work is advanced on an EU-wide law on access for persons with disabilities, designed to achieve a “barrier-free” Europe.
EU law draws on shared values across the legal systems of Europe – including in the common law – in the General Principles recognised and applied by the Court of Justice of the European Union. The Charter of Fundamental Rights of the European Union brings together those principles and guarantees in a statement of rights which binds the institutions of the EU and Members States. The European Communities Act 1972 makes those standards part of UK law. A range of domestic rights protecting legislation – including the Equality Act 2010 – now sits on an EU law foundation.
These EU standards, of course, sit alongside the other international commitments of the UK to the protection of human rights, including in the European Convention on Human Rights, and the protection offered by domestic law, including in the common law and the Human Rights Act 1998. That legal protection faces its own political challenges, as the Government remains committed to repeal. Now is not a time for complacency.
We need to plan
How our law might ultimately change depends on many unanswered political and diplomatic questions about the UK’s future relationship with the EU.
However, Parliament is now to be asked to legislate to “break all links” between UK and EU law. As a constitutionally interested community, it is crucial to ask what that might really mean.
While we might not yet know the ultimate destination for Brexit; it is important to think about what we do not want to inadvertently leave behind.
Let’s not worry so much that we forget to start planning.
Mapping the Great Repeal: EU Law and the Protection of Human Rights is published today by the Thomas Paine Initiative. It is authored by Angela Patrick of Doughty Street Chambers. You can read the full report here.
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