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Be Careful What You Wish For: EU, Human Rights & Commercial Cases

In Category: Thoughts
Published: 21/06/2016

Be Careful What You Wish for: Europe, Human Rights and Commercial Cases

(Brexit - Another Lawyer's Viewpoint)

Throughout history there have been those who have looked outward and those who have looked inward, and our country's response to the challenge of a, far from perfect, EU is a prime illustration of this. At the recent Legal Business Awards ceremony, in a straw poll conducted by Alastair Campbell (of Blessed Memory), the solicitors' profession showed itself to be overwhelmingly against Brexit. But that's not to say we should not indulge in a moment of patriotic prejudice to the joy of the red poster brigade - I'll come to what's really at stake in a moment. Simply from a professional viewpoint, one is apt to be jaundiced concerning the EU's contribution to our laws. 

As we all know, English common law is a very fine thing. Its precedent based approach balances, as nearly as any system can, two opposing imperatives, the need to provide certainty and the need to provide flexibility, without both of which justice cannot be achieved. In contrast, European Civil Law has little to offer.  Its judgments are inconsistent and contain scant information or reasoning. EU jurisprudence, that of the Strasbourg Court, can be particularly unimpressive.

My government right or wrong?

But. We might well remind ourselves that the EU provides some key rights and protections that we need, and that we would not have, and most probably will not have, without EU membership. If you are by nature a paternalist, you will have faith in those who govern you and assume that they are basically decent folk who know best. Well, that's fine when they are being good and competent, but the test of any system is what happens when it goes wrong. As we know, from time to time it goes wrong. Of all the opponents I have had over the years, none have proved as egregious, self-righteously hypocritical, yet underhandedly sly as government. Be it a local authority, a quango, or a department of HMG, if you want an opponent who has done something particularly bad, for the most cynical of reasons, and who will then deny it to your face and fight dirty, even when all hope for their cause has gone, to deny you justice, pick government. 

Yet, the ability to call the government to account is very limited under UK statute and common law. In most cases a victim will be restricted to the relatively narrow avenue of a judicial review, where the challenger has to clear a fairly high bar. Messages placed by politicians in the media over the last year or so presage an assault upon judicial review. The pretext (red (and purple) posters at the ready) is its alleged over-use for "pointless" immigration appeals, as if curtailing immigration challenges was the only cause or intended effect of limiting judicial review. Even as things are now, without the EU Convention on Human Rights, the ability to resist bad and unlawful government would be severely limited and, where government action causes financial loss, the ability to gain compensation would be practically impossible in many cases.

As a red-bloodied Englishman, I used to lament the undoubted resignation of sovereignty implicit in the Treaty of Rome; our catalogue of National Humiliation is, mercifully a short one (the Norman Conquest, Yorktown, the Fall of Singapore, the Cod War), and, it was galling to have to add Factortame. I used to believe that our "unwritten constitution" a thing of infinite subtly and flexibility, sufficed. We needed no "bill of rights". Define a right, I would argue, and you limit it. Our rights are unlimited. Unfortunately, they are also in key respects largely unprotected so far as our native laws are concerned. 

Renewables sector left out in the cold

By way of illustration, over the last few years I have been fortunate enough to be involved in shaping something of a landmark legal case against the Department of Energy & Climate Change over attempts made in the latter part of 2011 to make unlawful modifications to the solar PV feed-in-tariff subsidy scheme.  Remember all that rushing to get those tiles on the roof in November 2011? To cut a very long story short, in the face of stout resistance by DECC of the typical "we know best, how dare you question us?!" variety that seems to afflict politicians and civil servants alike, a judicial review challenge to the Court of Appeal had established that it would be unlawful for DECC to slash the subsidy in the way it had intended. 

DECC was, however, nothing if not cunning. It had achieved the collapse of the solar PV market anyway by announcing that it was going to do the bad thing that the Court of Appeal subsequently said it could not have done. The households that never got the lawful feed-in-tariff payments were British households. DECC's actions cost government the market's trust in its Renewables promises, and caused losses in the hundreds of millions to mainly British companies. The companies that came forward and sought compensation reckoned their losses at some £200 million. But many more did not come forward, whether because the challenge was legally risky, or, they could not afford to take action, or, they no longer existed, having been destroyed along with their businesses by DECC's actions. The claimants were all, or almost all, British companies, whose losses, caused by British government, were losses to the British economy, and which caused British jobs to be lost in the thousands, could not have received any compensation under home-grown British law. Are your red posters starting to droop now, because, really, they should be?  

Life, liberty and the protection of possessions

Fortunately, thanks to our European Family, Britain has been obliged to incorporate their pesky European Convention on Human Rights into domestic law as the Human Rights Act 1998 (HRA).  Brexit supporters will know this Act as "the Immigrant's charter" and look forward to its inevitable repeal or emasculation, after a successful stomp off with bat and ball on 23rd June.  

Fortunately, the HRA is about rather more than the hordes of millions crowding through the Channel Tunnel or tossing in the wake of Channel ferries because, apparently, they would rather risk being dead than risk being French. Even so, a challenge against HMG is never easy, and this one wasn't, not least because judge-made law in an uncertain and underdeveloped area would need to be nudged on a few clicks if the claimants were to succeed. But they did. And they did because the European Convention guarantees your enjoyment of your possessions free from interference from government, and this means that you can seek damages at law against the government 'in just satisfaction' of the losses government's interference has caused you. On the whole, I cannot help thinking that it is a Good Thing to have a remedy where cynical or capricious government acts wipe out an industry worth millions.  And I'd like to think, perhaps it's the Romantic in me, that the successful reliance upon that remedy might help to ensure better government in the future. What I know as fact, is that, if it were not for our European-guaranteed Human Rights, DECC would have got away with it.

So, the answer to the eternal question, quo custodiet ipsos custodies? is, whether you like it or not, the Courts of this country, and those of the EU, up-holding EU Convention rights.   

Brexiteers, be careful what you wish for.

James Hilsdon is a commercial litigation solicitor assisting a wide variety of business clients and consulting to a number of niche and boutique law firms. He can be contacted on jhilsdon@lexalto.co.uk or through his website, www.lexalto.co.uk

Written by James Hilsdon

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