 Good evening, ladies and gentlemen... It's a great pleasure that I welcome you to tonight's McKenzie Stuart lecture, the annual lecture of the Centre for European Legal Studies here in the Faculty of Law at the University of Cambridge. I am Kenneth Armstrong, I am Director of Vigilings and Professor of European Law at the University. Cyhoedd yn gobeithio eu cyfrwyr o'r adeithio gweld yr oed yn gweithio'r enw. Mae'r adegau yn tyfnwyd o wneud o'r dewisio, yn ystod arall o'r adeithio arall o'r adeithio, ac yn ystod o'r adeithio yma yma, i wneud i'r adeithio arall o'r adeithio a'r adeithio arall o'r adeithio, of Lord Mackenzie Stewart, the UK's first judge to be appointed to the European Court of Justice. Now Lord Mackenzie Stewart went on to be the president of the court and this lecture, I think this lecture series is a fitting tribute to all the UK judges, the lawyers and civil servants who, since 1973, have played leading roles in shaping the political and judicial institutions of the European Union. Now the lecture series is generously supported by Sherman and Sterling and Sells is grateful to be able to partner with them in organising tonight's event. Now our speaker this evening is the right honourable Dominic Graves, QCMP, and he'll be known to everyone in this room although perhaps for somewhat different reasons. He was called to the bar in 1980 and was appointed QC in 2008 and in between he was elected to Parliament in 1997 for the constituency of Beckinsfield and in opposition he served as shadow attorney general, shadow home secretary and shadow justice secretary. Of course under the coalition government he was appointed attorney general and served in that role until July 2014. But I think it is perhaps his life outside of shadow cabinet and cabinet which has given Dominic Graves a heightened profile in recent months it's fair to say. His amendment to the European Union withdrawal bill is significant for two reasons. Firstly that any amendment made onto the face of the bill in the first place no mean feat and secondly because of its aim to give Parliament a legislative role in the approval of any final withdrawal agreement. Now whether we will actually get an agreement on a withdrawal may however turn out to be more difficult than we might have thought and certainly following this week's publication of the EU's draft of that agreement. But our topic tonight isn't the usual stuff of Brexit in the sense of the usual chatter about regulations, financial contributions, institutions and procedures. Rather the protection of human rights in the UK has been a preoccupation of Dominic Graves beyond the boundaries of Brexit nonetheless Brexit and the forces that are driving it do lead us back to important questions about what the protection of human rights looks like in a democracy that seems intent on going alone in the world and doing so in the name of sovereignty. So tonight's lecture is entitled what price sovereignty Brexit in human rights. So on behalf of the Centre for European Legal Studies, I now invite Dominic Graves to give the 2018 Mackenzie Stewart lecture. Thank you so much for coming. Thank you for the introduction. I'm most grateful for the kind invitation that's been extended to me tonight to give this talk and it's a particular privilege that its name reflects the undoubtedly outstanding contribution Lord Mackenzie Stewart made to the development of EU law and the work of the European Court of Justice in Luxembourg. I think probably as a Scots lawyer he was ideally placed to bring the breadth of the United Kingdom's legal traditions to the development of EU law and in helping facilitate the court's jurisprudence on things like market regulation and fair competition he was striving to ensure that the principle of cross frontier freedom to trade and work which of course underpins the EU would operate in practice as well as in theory and his election as president of the court at a time when it was actually under a great deal of pressure I think reflected on his abilities and the respect in which are both he and our national contribution was held. So I do wonder what he would have made of the circumstances in which we find ourselves today. I have to say it's with sadness that I contemplate the events form the background against which this lecture is taking place. If all goes according to the government's plan then by this time next year our participation in the development of the European Union law will be approaching its end. Some like my colleague Boris Johnson will welcome this as the necessary step to restoring parliamentary sovereignty and nationhood it was he who described the referendum result as our independence day but others including myself will not. To my amusement I found that my concerns as to what's happening and my response to them in parliament have been earning me as an ex-attorney general the label's rebel commander and a bespectacle Che Guevara and if that's really what I have indeed become then this talk at least offers me a moment of reflection as to how I've got there and why I consider that we're at risk of losing far more than we will gain from leaving the EU. There's of course nothing settled about Brexit on which to base some definitive commentary or opinion its final form remains unclear for 20 months now we've seen the development of an unparalleled political and constitutional crisis for our country it's precipitated the fall of one government contributed last June to the failure of another to get a coherent mandate for carrying it out it divides families friends generations and political parties it's breaking apart the previous broad consensus between the mainstream political parties as to how the economy should continue to be managed this can be seen in the demand for a return to socialism in large sections of the Labour voluntary party and in the differences of view about free market economics amongst brexit supporting conservatives all facilitated by the prospect of the removal of the existing EU legal framework look at what Jeremy Corbyn had to say about that this week meanwhile like most revolutionary upheavals it's bringing economic uncertainty in its wake and it's also accompanied by a crisis of confidence in our political institutions a public are showing an increasing dissatisfaction with the way our politics are being conducted there are serious disagreements still being played out at present as to the respective roles that parliament and the executive should perform in authorising and carrying out the brexit process and we've had the vitriolic abuse heaped on members of the judiciary for ruling on part of this issue in the miller case it also threatens the unity of our country because of divergent views in different parts of the united kingdom as to how we should best proceed now i mention all these issues because they emphasize for me how the future of human rights after brexit on which i do want to concentrate this evening simply can't be isolated from the wider issues and extraordinary times in which we're living brexit constitutes a potentially profound change in our country's relationship with both our own and the international legal order with consequences that may flow from this both domestically and internationally in voting to leave the EU the majority in its repeated mantra of taking back control was making some form of demand of the government for a change in direction for the united kingdom in respect of our country's participation in building supranational legal frameworks and our willingness to be bound by them the referendum was also a demand concerning what's expected of our unwritten constitution which has become heavily entwined with the supranational frameworks the united kingdom has helped to build it's because brexit has the capacity to affect so many aspects of our national life that i thought it might be worthwhile giving this topic some consideration in the context particularly of human rights but i do want to emphasize that this is a politician's view of evolving issues not an academics analysis i also want to look at how these matters are being played out at present in the debate taking place in parliament it's an interesting feature of our current debate on the future direction our country should take that when you leave aside the arguments about the economy freedom of movement immigration there is actually one thing on which most participants agree namely the importance of law for our country in reflecting developing and protecting our national identity and our well-being my brexit supporting colleagues having differing degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence parliamentary democracy and our system of law it fits in with a national if probably principally English narrative that can be traced back to Magna Carter habeas corpus and a Bill of Rights of 1689 it emphasizes the exceptionalism of our national tradition which we can undoubtedly see recognized from a very early date in the mid 15th century we have it celebrated by Chief Justice Fortescue in his de laudibus legum angliau written in 1453 use of torture is deprecated trial by jury and due process praised and with it the uniqueness and its uniqueness to england there's even in fact an excellent section in it which i suggested in parliamentary debate might be relevant to who had the power to trigger article 50 the king of england he said cannot alter nor change the laws of his realm at his pleasure but it took a court case to sort that out and of course to this we can add the case of proclamations of 1610 in which Sir Edward Cook repeated what Fortescue had actually said 150 years earlier petition of right of 1628 the commentaries of William Blackstone Lord Mansfield's ruling in Somerset's case this national narrative has proved and is still proving at times very important it continues to act as an effective restraint on British governments trying to curb freedom when tempted to do so by threats to public order or national security we saw that over 90 and 42 day pre-charged detention just a decade ago under the last Labour government and of course it places parliament as the central bastion of our liberties the trouble is that this comforting political tradition is not necessarily supported by a detailed study of our history it's possible to find periods and instances when its norms have not been observed from northern Ireland to Kenya or Malaysia it's also been used to support opinions that are far less helpful to the rule of law as Lord Bingham defined it in his eight principles which he expounded in his 2006 lecture for parliamentary sovereignty can also be used merely as an assertion of power particularly when the executive has effective control over parliament in theory at least our constitution is that the queen acting with the assent of her lords and commons enjoys an exercise of power unlimited by any other lawful authority what the late Lord Halsham characterised as its capacity for creating elected dictatorship and it's after all what allowed Henry VIII in his act of supremacy of 1534 to use parliamentary authority to coerce subjects on matters of deepest conscience and in the last century enabled the authorisation of detention without charge under the defence of the realm act in wartime our EU membership however provides an example of how over more recent British history but particularly since the end of the second world war we've embarked on policies that have developed and changed our laws not just through domestic mechanisms but through international engagement not withstanding our pride in our national sovereignty successive British governments in the last two centuries have sought to make the world a better safer and more predictable place by encouraging the creation of international agreements governing the behaviour of states when I was attorney general I once asked the Foreign Office to tell me as to how many we were signed up they were very reluctant to provide me with a figure and finally said they refused to go back beyond 1834 but since that date they had records of over 13200 then I think the figures actually gone up to about 13500 that the UK had signed and ratified and most of those were still applicable arranged in importance from the United Nations Charter to local treaties over maritime access and fishing rights over 700 contained references to binding dispute settlement to arbitration by a court or tribunal in the event of disagreements over interpretation with the passing years these treaties be they the UN convention on the prohibition of torture the creation of the international criminal court have been dealing not just with interstate relations but with the conduct of states towards those subjects over which they exercise power now so important has been this treaty making that the ministerial code until 2015 referred specifically to the duty of civil servants and ministers to respect our international legal obligations at all times this was then deleted by the then prime minister David Cameron probably in reaction to being reminded of this point too often and probably by a me but the deletion could only be cosmetic in its effect the cabinet office had immediately to admit when the deletion was announced that it made no absolutely no difference whatsoever to the obligation because it's one of Lord Bingham's eighth principle of the rule of law if it were abandoned we would be sanctioning anarchy on the international stage in fairness successive UK governments have despite some lapses been pretty consistent in observing its principles where after all still in the midst of commemorations of the first world war which we entered explicitly to honour an international treaty obligation to guarantee Belgian neutrality what the then german chancellor was happy to describe as a scrap of paper but that's not prevented us agonising and complaining over its impact particularly in areas where it places constraints on the united kingdoms part and legislate at will on domestic matters now i don't want to get too diverted this evening by the history of our adherence to the european convention on human rights and its incorporation into our law through the human rights act however much it may have had an influence on my political career but i do put it forward as an example of an international treaty that has brought in its wake intense disagreements as to its value any reasoned examination tells me that its impact has been profound and beneficial over the years it's produced a number of landmark decisions which have challenged and halted practices which were once considered acceptable in western democracies but which would now be seen as wholly unacceptable by the overwhelming majority of the british public and despite difficulties of the enforcement of some of its judgments particularly in countries where the rule of laws previously been non-existent the Strasbourg court can show that it's been instrumental in bringing about positive changes of attitude by public authorities with a long track record of serial human rights violations and since the Brighton Declaration of 2012 negotiated by my friend and colleague Ken Clarke with a bit of assistance from me it's improved its processes reduced its backlog of pending cases and unimplemented judgments and engaged in a constructive dialogue with our own senior courts that is influencing its jurisprudence on any showing our support for the convention and the Strasbourg court has been a major achievement of british soft power on the international stage yet for all this my party which supported its creation and the later writer personal petition is still calling for a review with the possibility of replacing the human rights act with a bill of rights that might call into question our future adherence to the convention now fortunately i'm reasonably optimistic that this will not in fact happen but it is symptomatic of the discomfort of supranational court causes and the continuing dislike by some of the effect of the human rights act it's noteworthy that other mainstream parties have at times been less than forthright in upholding the obligations the convention imposes on us when it might need them to confront adverse we might need to to confront adverse public and media comment labors long silence over resolving the issue of votes for some convicted prisoners arising out of the first judgment was very telling and it's welcome to be able to note that both the government and the Labour party have shifted their position it looks likely that this issue is now resolved so it's with those thoughts in the mind that i turned the impact that the EU has had on human rights law it's clear that in the way it's developed EU law has influenced rights the legal order under the EU treaties is of the greatest importance since it provides the mechanism to ensure that the carefully agreed rules governing the interaction of nation states and european bodies are respected as the product of an international treaty the EU can only be effective and be seen to be legitimate if its own operations are considered to respect the letter and spirit of the treaties that created it furthermore the very ambitious nature of the project has produced a requirement not only for there to be the primacy of EU law over the national law of its member states in areas of EU competence but also the creation of parts of that law by its central bodies without the need for any domestically generated primary or secondary legislation at all in some cases it's obvious that such a source of law could operate abusively whatever the good intentions of its creators might be the EU's member states clearly wish that EU law should further principles of democracy and the rule of law and values found in the constitutional traditions common to the member states including those principles reflected in the european convention on human rights and other international treaties on social and economic rights to which all members are signatories as set out in the preamble to the charter of fundamental rights but those general principles therefore need protecting this is why they're now in the text in the charter which also covers the key obligations of member states in respect to the four freedoms conferred on EU citizens in the treaties it does seem to me therefore to be rather ironic that the charter should have been on the receiving end of so much vilification in the united kingdom now i can see that criticism can be made of its use to claim rights that might be considered to fall outside of the scope of the treaties altogether i experienced this as attorney general when i appeared in the supreme court for the government in chester and McGeach in 2013 where an attempt was made to use the charter to claim prisoner voting rights in EU elections it's however noteworthy that this attempt failed one can also see the court of justice of the european union may be accused at times of misapplying rights under the charter through a defect in factual reasoning and perhaps an insufficient regard for the intention of the signatories the case of tele swag and what's not article eight of the charter on data retention is such an example but the critics of the charters existence seem to me to ignore the point that without it and the general principles of EU law it embodies the risk would have been very much greater of seeing EU law being created or applied in a way that didn't respect the limits of the treaties or interfered with fundamental rights and then left individuals and legal entities without any means of redress but recognition of these benefits has been lost in the repeated denunciation of the charter as an alien document intent on imposing a form of written constitution on us contrary to our principles of parliamentary sovereignty yet on a practical level however the impact of general principles of EU law in our country does appear to me to be rather different it's been the principal driver in recent years in promoting the development of equality law and social rights for example it's due to EU law and article 21 of the charter that there are rights to protection against pregnancy discrimination equal pay for work of equal value protection against discrimination at work on grounds of sexual orientation religion and age the equality act 2010 may be a piece of parliamentary domestic legislation that would have been supported nationally in any event but it owes its origins to changes brought about by EU law in northern Ireland the lack of an equality act means that equality's protections are even more a direct result of EU membership and it's noteworthy that despite some expressions of concern on the burden on business there's never been any serious resistance to these developments and of course it's still happening in the recent supreme court decision of walker and in a spec mr walker relied on a framework directive interpreted in line with general principles of EU law of non-discrimination to disapply a provision of national law which restricted the extent to which same sex spouses could receive pension payments from pensions earned by their deceased spouse to political level i have not heard one word of criticism about this decision despite my earlier comment it's also clear that another area of importance is privacy law article 8 protects personal data and in the matter of david davis and tom watson's challenge to the data retention an investigatory powers act 2014 the court of appeal agreed with the divisional court that article 8 of the charter was more specific than article 8 of the european convention on human rights my own opinion that the final decision of the court of justice of the european union is deficient in its reasoning doesn't diminish the importance of this right in google and vital hall directive was interpreted in line with general principles of EU law the chr and the charter serves to require the payment of compensation to breaches of privacy even when these breaches could not be shown to a given rise to a pecuniary harm as EU legislation implementing the directive could not be interpreted in line with it the provision restricting compensation to pecuniary loss was disapplied again the overwhelming impression i have a public reaction to this outcome that it was positive unless one perhaps excludes the self-serving response of some sections of the media i also can't overlook the recent decision in bank harbush in the supreme court held unanimously that two provisions of the state immunity act 78 inconsistent with article 6 of the chr interestingly on the basis of those provisions went beyond what was required to give state immunity under customary international law proper force as bank harbush's claim for the failure of her employers to comply with employment law ought therefore to proceed but the ability for this to happen rested on the ability to disapply the legislation immediately because it also breached article 47 of the charter otherwise the court would have been left with simply making a declaration of incompatibility and here again i just have never heard from any of my conservative colleagues at Westminster a squeak of opposition to this decision or the fact that EU law has overridden a statute that appears on the court's reasoning to have been unnecessarily restrictive in relation to our obligations under international law finally in this brief survey the charters helped guide the legislative process to ensure that areas like workers rights in article 27 are kept in mind when the law is changed the same applies to environmental protection uh it's our 27 environmental protection in article 37 and consumer protection in article 38 of course i have to accept that there are some of my colleagues in parliament who take the view that at most the only human rights that should be protected are those in the convention and even then some wish any rights protection to be purely domestic and not subject to any international treaty obligation at all the cross party commission on a bill of rights set up by the coalition government in 2010 highlighted not to my surprise substantial philosophical difference on what constitutes human and fundamental rights that merit special protection there may be an important jurisprudential distinction to be drawn between liberties and rights and as a conservative i've always been a bit cautious about the ability to widen the scope of fundamental rights and some economic and social rights place positive duties on the state that may in theory be important aspirations but can in practice be very hard to fulfill and involve a difficult and perhaps not readily justiciable balance between competing policy areas we ought to be careful to ensure that law is not allowed to intrude too far into the realm of legitimate political choices but that said it's clear that there's grown up in the last half century areas of law particularly around equality and privacy workers rights and consumer protection that are not well covered by the convention and are seen as fundamental rights by an overwhelming section of the public so much so indeed but the present government has been at great pains to emphasise that in leaving the EU it's not its intention to diminish any of these rights currently enjoyed by UK nationals through the ackee the problem however is that the approach of the government has set out in the EU withdrawal bill really does suggest something rather different having just spent four months considering the EU withdrawal bill I have to start by applauding the skills of the parliamentary draftsmen and women who put it together I don't think I've ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument and where the entire structure was so closely interwoven that the same end could often be achieved by wholly different routes the bill proposes to take a snapshot of EU law as it stands on exit day and import it into our law thus EU directives implemented by either primary or secondary legislation to be known as EU derived domestic legislation in clause 2 EU regulations referred to as direct EU legislation clause 3 and directly affected provisions of EU law clause 4 are all to be retained in so far as not replaced by primary UK legislation on matters such as immigration, trade, customs, agriculture and fisheries but the government intends to enact before exit day but at the same time the government is then excluding the charter of fundamental rights which is not to be part of domestic law after exit day nevertheless allowing general principles of EU law to survive along with the ability to make continued reference to the charter but only in so far as it's necessary to interpret the retained EU law the principle of supremacy of EU law is going to continue post exit day as regards laws enacted prior to exit day or modified after exit day where that modification clearly intends to preserve the supremacy but schedule one paragraph three one makes clear that from exit day on there will be no right of action in domestic law for any failure to comply with any of the general principles of EU law those general principles are not defined paragraph three two then states that after exit day I quote no court may disapply quashal decide that action is unlawful because it is incompatible with general principles of EU law so the government intends to reduce both the charter and the general principles of EU law to no more than interpretive aids to retained EU law the protective rights previously provided to challenge any abuse arising from the operation of EU law evaporate leaving only the possibility of a challenge under the human rights act if the protections are covered by the convention from speaking to ministers and looking at government statements the justification tended for this is that it would be wrong as we're leaving the EU to allow any element of judicial supremacy inherent in the way EU laws operated to survive as it offends the parliamentary sovereignty we're supposed to have lost and are now restoring the alternative possibility of allowing our own supreme court to fulfil this role after exit has been dismissed it's the anomaly of the result that bothers me one of the principal complaints about EU law is that it was either forced on parliament which been obliged to enact statutes or statutory instruments as necessary to meet EU's requirements or worse still it's been directly imposed on us by the commission acting on the authority we surrendered to the EU in the treaties furthermore to try to maintain predictability we have as i've just mentioned preserving its supremacy in relation to pre-exit enacted primary domestic legislation more remarkably still we're going to treat all direct EU legislation as primary for the purpose of the human rights act see schedule eight even though a lot of it quite frankly has the character of secondary legislation and is very much technical i think i'm right in saying somebody will correct me i've found 615 implementing regulations in the area of the environment consumers and health protection alone implementing regulations are made by the EU commission using delegated authority to enact EU measures and can therefore be argued to be similar to secondary legislation in the united kingdom paragraph 19 of schedule eight has the consequence that at most such implementing regulations can be subject only to a declaration of incompatibility if they were to be in breach of the human rights act it may be many years indeed before it's all replaced with new domestic laws in the meantime those subject to retained law are going to have very limited means to challenge it in a remarkable irrigation of power paragraph one two b of schedule one leaves open the possible creation of a right to challenge retained EU law for being invalid at the date of exit but only if the challenge is i quote of a kind described or provided for in regulations made by a minister of the crowd i don't think i can actually think of any other example of a legal right being created or denied in such a fashion by the executive and while this is all being sanctioned by parliament in the withdrawal bill itself the immense scope of the bill as you will have seen as it went through the house of commons doesn't actually provide great deal of reassurance that it's full effect of this importation of law and turning it into retained EU law has in fact been considered indeed bluntly speaking it would have been completely impossible to do it as has been commented on the bill also provides for some of the most extensive Henry the eighth powers to change primary legislation this may be inevitable in order to bring brexit about within the time constraints under which we're operating and there are sunset clauses for the use of statutory instruments but it does mean that important primary legislation such as for example again the equality act could be amended by this method within the permitted period and then there was clause nine which before we amended it in the commons as a result of my amendment allowed the government to start enacting statutory instruments to take us out of the EU in further and civil withdrawal agreement even before we actually knew what it is even changing if necessary any other part of the withdrawal bill itself to do so the same features can be seen in other legislation linked to brexit the trade bill and taxation cross border trade bill all proposed to hand large amounts of unaccountable law making power to the executive on exactly the same justification taken together they constitute in my view an undermining of the rule of law because they substitute executive discretion on questions of legal right and liability rather than enacting and defining in law the criteria for resolving questions of how the law should be interpreted thereafter the complexity of what's being attempted creates uncertainty as to how the law will operate that may bring the legal professions a lot of work but it's not exactly what Lord Bingham recommended in his first principle that the law must be accessible and so far as possible intelligible clear and predictable one area in particular looks problematical it really isn't clear to me and has not been since as this started whether the continuing supremacy of retained EU law post exit allows for quashing of pre-exit domestic legislation nor what particular weight should be given to post exit cju EU authorities by our own courts assuming an intention by the government to mirror areas of EU law to maintain compatibility which seems to be the hot topic because the government keeps on talking about that at the moment as part of our negotiating strategy if such an agreement is reached it may well be that a whole new set of rules will be required and I don't find it surprising that members of the senior judiciary have expressed some concern over having to make rulings on issues that may have great political sensitivity as well as economic consequences if the choice facing a court is between regulatory consistency or divergence in an area of trade between the united kingdom and our previous partners now those are the matters on which debate in parliament have been focused apart from the debate defeat on clause nine the government listened to some of the concerns around henry the eight powers certainly in respect of remedying deficiencies in clause seven it agreed a sifting mechanism for deciding if statutory instruments made under the bill should be dealt with by affirmative or negative procedure it's promised to revisit the issue of legal certainty when the bill goes through the lords but I was disappointed that it wasn't able to do more to persuade the government to move further at least allow challenges to the operation of retained EU law to be brought if it was in breach of general principles of EU law I saw this I should emphasise not as a final way of resolving the problem but as a stop gap following the removal of the right to do this under the charter be interesting to see what happens to this when the bill is considered further by the house of lords the EU has been both an important source of law and also an important field of legal cooperation for us join the course of our membership it's helped to develop and promote the rule of law for our own benefit and of course that of our fellow member states our departure leaves a lot of unresolved issues as to how that cooperation can be maintained it's noteworthy in this context that the prime minister's recognised the importance for us as well as for the EU of continuing to participate in areas of justice and home affairs including the european arrest warrant the shengen information system needed to support law enforcement cooperation across the EU also the agreements such as those to manage asylum applications contained in the dublin framework which have underpinned attempts at creating some order in what is in fact a very complex and difficult field actually enabled us to return a significant number of asylum seekers to other EU countries equally important are the civil law measures which include matters as diverse as high value commercial litigation contact arrangements for children the recast brussell's regulations have created rules to ensure uniformity and certainty for litigating parties including the mutual recognition of judgments and their enforceability in member states including the use of injunctions all this has been of the greatest benefit in making the united kingdom an attractive place to litigate the government's position towards some of these latter measures appears to be somewhat ambivalent as it's been suggesting it may ask for new arrangements for our participation in substitution for the present ones but generally the government's intention is of wanting to remain in these type of arrangements after brexit and the possibility of doing this is reinforced by the fact that other non-eustates have been able to participate in some of them it's arguably very much in the interests of the EU that we should continue to do so but of course we're going to do it as associates or observers our ability to shape the continuing development of these laws and frameworks is going to be reduced all in fields of cooperation where our well established rule of law tradition means that we have hitherto been able to be principal leaders on them we're going to be rule takers not rule makers and I really do see this as one of the most serious side effects of brexit as an example we've rightly indicated our concern about how EU data sharing law is developing we're enacting primary legislation to give effect to the new general data protection regulations of the EU to which we provided input in our data protection bill but what's going to happen once we're outside the EU in respect of our ability to contribute to further changes it'll be gone although we'll still be required to observe those changes in all data exchanges with EU countries and ultimately horror of horrors for some of my colleagues so they may not have realized this it's going to be the court of justice of the european union that will in practice determine what is permissible and what is not and although the EU may be secondary to the role played by the council of europe in promoting human rights more generally on a continent its role has actually been substantial the EU fundamental rights agency founded in 2007 works to promote human rights within the EU playing an important role in member states where democracy and the rule of law are still newly established it's extensively used united kingdom NGOs and institutions to help it with its work the balance of competencies review carried out in 2014 by the then government described the agency's output as accurate and of good quality but after brexit we'll no longer be able to play any formal role in its work a useful element of UK soft power projection in promoting human rights will be lost so will our ability to use our EU membership for the promotion of human rights and the rule of law outside the EU it's easy to overlook the EU's role in doing this but it has had considerable leverage council regulation 12 36 2005 banned the export of instruments of torture and is now extended to death penalty drugs negotiations of trade deals with third countries have included provisions requiring human rights issues to be addressed turkey's abolition of its death penalty in 2004 was a requirement for the conclusion of its engagement with the european union in deepening relations with a viewed possible eventual membership so at the inevitable risk of being characterized as a remona i'm afraid that the analysis i've tried to carry out of the consequences of brexit on human rights law doesn't make me enthusiastic for its alleged benefits there may be a bright economic future for us somewhere outside the EU but in terms of the development of our law and the maintenance of the rule of law both here and abroad it is a revolutionary event the creator not of some new order but a potential chaos which the convolutions and oddities of the EU withdrawal bill only serve to emphasize it's a profoundly unconservative act for those ideological purists who are convinced that our laws will be improved by the removal of 45 years of foreign and newfangled accretions i think there will be disappointment the ghost of those accretions will be poltergeist lurking around to haunt them with random and unpleasant consequences for many years and the substantial legal benefits that have come from them for the majority of citizens risk being diminished or lost in uncertainty nor do i think this will be the end of the matter the reality is that over the years of our EU membership we've inevitably acted as an EU level on matters which would otherwise have featured as part of a domestic national conversation in any event it may be EU membership that has entrenched certain equality privacy and social rights in our country to the disgust of believers in untrammeled parliamentary sovereignty but might this not have happened anyway it's true that in the human rights act we proceeded with respect for our constitutional traditions in deciding on the mechanism of declarations of incompatibility rather than creating strike down powers but the idea that in 2017 we should now relegate EU derived rights to a wholly unprotected status flies in the face of evolutionary change in human society doubtless any of our forebears who frequented the court of king henry the eighth might have been surprised and appalled if they'd seen an advanced copy of the bill of rights of 1689 but that doesn't mean that their descendants in 1689 got it wrong it must at least be possible therefore that our departure from the EU a loss of the entrenched protections it entails is going to lead to a debate on how we go forward the proposal of a domestic bill of rights with protections additional to the human rights act which could adequately cover equality and privacy laws might help address the issue doubtless this debate will have opposite polls those reasonably opposed to any laws enjoying a special status and those for whom the charter of fundamental rights was the first step to an overarching architecture of entrenchment of fundamental rights and judicial supremacy in their application as I've said as a Conservative this latter view isn't mine but I really am concerned that some of my colleagues in parliament haven't even noticed the existence of this lobby or the extent to which such rights have become accepted by the public as of importance even if the public have had no reason to consider their origin or how they have been secured as brexit proceeds this debate will not be confined to Westminster the return of powers and devolved administrations the white hall and Westminster provided for in clauses 10 11 and schedule two of the bill is as we all know a source of political controversy because of the way clause 11 prevents the devolved legislatures acting any laws thereafter to modify retained EU law even if it falls within their devolved areas of competence equal opportunities except in Northern Ireland and data protection have always been reserved matters but there's no doubt the Scottish government and the Welsh assembly government have shown no hostility to rights entrenched by EU membership indeed on one view of the devolution settlements of Wales and Scotland is that human rights are a devolved matter and Wales has incorporated the united nation convention on the rights of the child into its domestic law through the rights of children and young persons Wales measure 2011 in the Northern Ireland context we continue to have the unresolved issue of implementing a special bill of rights additional to the human rights act that was provided for in the Good Friday agreement that has never been carried forward and now the Good Friday agreement quite incredibly appears to be under threat as well all these issues are likely to have a bearing on any debate on EU derived rights and the removal of protection from them as we leave and I really wouldn't wish to speculate as to where it will end up taking back control is undoubtedly a powerful idea in conditions where the decline in general confidence in institutions both national and supranational has become so marked but in an increasingly interdependent world what constitutes the benefit of exclusive control becomes harder and harder to identify the risk is that it's all largely a mirage that leaves individuals in practice fewer opportunities to enjoy a good quality of life or to obtain redress for administrative failings is also a uniquely disruptive form of change that precipitates the very reverse of quiet government which the book of common prayer has long enjoined us to pray for and which the united kingdom has traditionally aspired to deliver to its citizens the principal short term beneficiary of this is the executive as a result of its accruing more power in response to the disruption those of us who believe that a lively free and therefore successful democratic society thrives on checks and balances are just going to have to work hard to ensure that we protect and preserve a legacy of international cooperation and engagement that has done all of us in this country very little harm and undoubtedly a great deal of good thank you very much