safety legislation with the aim of simplification and reducing unnecessary burdens on small and medium‐sized enterprises.
Brexit
In June 2016 the British people voted on whether they wished to remain in or leave the European Union. By a small majority they voted to leave. By Article 50 of the Treaty of Lisbon a Member State may decide to withdraw from the Union in accordance with its own constitutional requirements by giving a notice of its intention to withdraw. If a withdrawal agreement is concluded it will leave from the date of the agreement but, failing an agreement, two years after the notification. In R (on the application of Miller) v. Secretary of State for Exiting the European Union (2017) the Supreme Court held that the Prime Minister needed the approval of Parliament to trigger Article 50 because it involved repealing the European Communities Act.
Article 50 was triggered in March 2017 to expire on 29 March 2019 but it proved impossible to achieve a withdrawal agreement that could command the approval of a majority in the House of Commons. The period was extended to expire on 31 October 2019, and further extended to 31 January 2020. The agreement negotiated by Mrs May, then the Prime Minister, included a transition period until the end of 2020 during which the UK would remain subject to EU law while issues like trading agreements, customs arrangements, particularly on the border between Northern Ireland and the Republic of Ireland, were resolved. In the event that no deal was agreed the UK would leave the EU without any such arrangements being put in place. Mrs May resigned as Prime Minister in the summer of 2019 and the Conservative Party elected Boris Johnson as its new leader. Johnson negotiated a new withdrawal agreement which achieved a majority in the House of Commons but this was followed by a General Election in December 2019 in which the Conservatives were re‐elected with an overall majority. The UK formally left the EU on 31 January 2020, allowing eleven months of transitional negotiations.
Over the nearly 50 years that it was a Member State, much of UK law reflected legislation and case law from Europe. If those laws automatically ceased to have effect on withdrawal day, that would leave an enormous void which would take years to fill. For that reason, arrangements were put in place to preserve legislation and case law derived from EU sources unless or until it was replaced by primary or delegated legislation from the Westminster Parliament or decisions of the Supreme Court. The European Union (Withdrawal) Act 2018, which takes effect the day after the UK leaves the EU, repeals the European Communities Act, places all EU legislation into UK legislation immediately and withdraws devolved powers from Scotland, Wales and Northern Ireland for a period of two years. If there is a transition period, EU law will continue to have effect for the period of the transition. If there is no transition period, EU legislation is frozen at the leaving date, but interpretation of the retained and frozen EU law will be for UK courts rather than the European Court of Justice. Precedents established by that court will only be able to be overruled by the Supreme Court, though at time of writing there is a suggestion that new legislation could give the courts below the power to depart from EU court rulings.
After withdrawal the UK will be free to change or modify any laws derived from the EU, including health and safety, working time, environmental and equal treatment directives. Free movement of labour will no longer apply, so EU citizens will lose the automatic right to enter and work in the UK and UK citizens will lose the equivalent right to migrate to EU Member States. Amendments to UK legislation can, in many cases, be made by statutory instrument rather than primary legislation if they relate to matters of detail rather than fundamental changes of policy. The UK will no longer be bound by EU directives or regulations coming into force after withdrawal and will be able to disregard subsequent decisions of the European Court of Justice, though it is likely that UK courts will regard them as persuasive.
The European Convention on Human Rights and the Human Rights Act 1998
The Council of Europe was established at the end of World War II, before the European Union. It now has 47 Member States. Though several nations are members of both, the two bodies are quite separate. The European Convention on Human Rights and Fundamental Freedoms is a treaty of the Council of Europe, to which the UK is a signatory, in fact one of the founding members. It creates the European Court of Human Rights. The European Court in Luxembourg (the Court of Justice of the European Union) must not be confused with the European Court of Human Rights in Strasbourg, France. Decisions of the Strasbourg Court are not directly enforceable in the UK, though they carry considerable moral and political influence.
Although the UK was a prime mover in the creation of the Human Rights Convention, the impetus for which was the horror of what had been done to the Jews in Germany under the Third Reich, the British government for a number of years was of the view that it was unnecessary to give UK citizens the right to petition the Strasbourg court, since everyone knew that the UK was above reproach. In 1966 it was accepted that this was not necessarily the case and that British citizens should be given the right to appeal to the Human Rights Court where they were dissatisfied with the lack of a remedy from the domestic courts, and for 20 years this was the ultimate source of complaint for those who were dissatisfied with British justice. Because there was no internal procedure to challenge a decision as contrary to the Human Rights Convention, a disproportionate number of claims was made to the Human Rights Court by British citizens.
The Labour government elected in 1997 declared that the UK would incorporate the Convention on Human Rights into UK law and this was done by means of the Human Rights Act 1998, which came into force fully in 2000. The Act preserves the sovereignty of the Westminster and Scottish Parliaments. In the last resort, an Act of Parliament can lawfully deprive British citizens of their rights under the Convention. However, Parliament, and the courts in interpreting legislation, are obliged as far as possible to comply with the Convention. Thus, a decision of the UK Parliament to pass legislation which conflicts with the Convention would be a deliberate decision that the interests of this country override the Human Rights Convention. In such an unlikely case the Strasbourg court and the other members of the Council of Europe might make representations, and there is the possibility that the UK might even be expelled from membership of the Council of Europe. The higher courts are given power by the Act to make a declaration of incompatibility between legislation and the Convention. This happens only rarely, but when it does there is obviously pressure on the legislature to change the law. One example is the ruling by the House of Lords that persons suspected of terrorist offences may not be imprisoned indefinitely without trial A(FC) v. Secretary of State for the Home Department (2004). In 2009 the House of Lords made a declaration that the procedure of provisional listing by the Secretary of State for Health under the Care Standards Act 2000 of care workers considered unsuitable to work with vulnerable adults was contrary to Article 6 of the European Convention. Mrs Wright is a registered nurse. She was dismissed for gross misconduct in November 2003 from her job in a care home. She was provisionally placed on the ‘unsuitable’ list in February 2005, but eventually, many months later, her name was removed from the list after an appeal to the Care Standards Tribunal. During this period she could not be lawfully employed in a care home. Article 6 provides that in the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The House of Lords decided that the power of the Secretary of State to place a name on the provisional list without the individual being able to make representations as to her innocence was contrary to Article 6. Although in due course an appeal could be heard by the Care Standards Tribunal, in the interim the nurse was in limbo and permanent damage might be done to her reputation and career. She should be entitled to a hearing before her name could be placed on the list, other than in a case where there was an urgent need to prevent harm to patients (R (on the application of Wright) v. Secretary of State for Health (2009)). The listing of those deemed unsuitable to work with vulnerable adults was transferred to procedures created by the Safeguarding Vulnerable Groups Act 2006, but the principles laid down by the House of Lords in the Wright case are of general application.
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