Will Brexit weaken the enforcement of fundamental rights in the UK?

This article was first published on Lexis®PSL on 2 February 2018. For a free trial and more articles like this, click here: Lexis®PSL. 

02/02/2018

Public Law analysis: As the European Union (Withdrawal) Bill continued its passage through Parliament, the House of Commons voted not to retain the EU Charter on Fundamental Rights in UK law after Brexit, even though it arguably poses no additional human rights ‘burden’ on the UK government. As this issue continues to resurface in the Lords Stages, Emma Fitzsimons, barrister at Garden Court Chambers, considers whether rights and freedoms in the UK will be undermined post Brexit.

Sir Keir Starmer MP, Shadow Secretary of State for Exiting the EU, has criticised the protection of essential rights as ‘woefully inadequate’. What is the reasoning behind this argument? Do you agree with this analysis?

Sir Keir Starmer’s comments were made in the context of a proposed amendment to the European Union (Withdrawal) Bill, which would have retained the Charter of Fundamental Rights of the European Union (the Charter) as part of UK domestic law after Brexit.

This is not the first time the government’s approach on fundamental rights has been criticised—in the previous parliamentary session, the Joint Committee on Human Rights expressed its concerns about the reluctance to address the issue (see its report: The Human Rights Implications of Brexit).

The general approach of the European Union (Withdrawal) Bill is to bring EU law into UK domestic law, with the effect that existing rights and obligations would remain the same after the UK has exited the EU. However, clause 5(4) of the Bill expressly provides that the Charter will not be included and will therefore not be retained as part of domestic law after exit day.

The government’s position, as set out in the explanatory notes to the Bill, is that the Charter does ‘not create new rights but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law.’ The government maintains that it has no interest in weakening the enforcement of fundamental rights.

All of which begs the original question—why refuse to retain the Charter if it poses no additional human rights ‘burden’ on the government? Opponents have long argued that excluding the Charter will reduce the rights of British citizens.

Amendment 4, proposed during the Commons stages would have retained Charter rights in UK law and afforded the same protection as Convention rights under the Human Rights Act 1998 (HRA 1998). It was narrowly defeated by 317 votes to 299 in the Commons during the debate at the Report stage on 16 January 2018. A wide range of interested stakeholders, including the Equality and Human Rights Commission, had voiced their support for the amendment.

The Bill now progresses to the House of Lords, and it remains to be seen whether they will take a further and more exacting view on rights protection.

Does excluding the Charter from the European Union (Withdrawal) Bill automatically mean the UK abandoning the associated rights?

Aspects of the government’s analysis is correct—where rights are protected by other mechanisms, either by international instruments or by the common law, then such rights will continue post-Brexit.

In broad terms, there are at least four areas that are affected:

Enforcement and protection of rights

Excluding the Charter from retained EU law weakens the ability to enforce and protect rights. The Charter is unique as a method of human rights protection because legislation which is incompatible with the Charter rights can be struck down by the Court of Justice of the European Union. The European Convention on Human Rights (ECHR), through HRA 1998, does not provide the same ‘strong-form’ of judicial review—it offers a softer, albeit some might argue, more sophisticated, interplay of declarations of incompatibility and political legitimacy that has been well suited to British constitutionalism. Hence, excluding the Charter will deprive an individual of the associated rights to challenge British legislation or administrative action that infringes their rights.

The wider political influence of the Charter on regulation

The value of human rights instruments is that they serve a broader purpose, by promoting and embedding rights protection into policy-making. This is an important aspect that should not be undervalued.

Certain rights developed by EU law

EU law has been responsible for the development of specific areas of rights protection. Data protection is just one example where EU law dominates. Article 8 of the Charter specifically protects the right to personal data, and is separate from Article 7, which protects respect for private and family life. That is not to say that the European Court of Human Rights jurisprudence on data protection is not significant, but the arguable value of the Charter for EU citizens is that data protection is explicitly enshrined as a fundamental right, which in turn sets a policy agenda for the regulation of data across borders. Other rights have no clear domestic equivalent, eg in areas like bioethics (Article 3 of the Charter), a positive right to education (Article 14 of the Charter) and the freestanding right to non-discrimination (Article 21 of the Charter). In this way, it could be argued that the EU has been ahead of the curve on these matters—one only need look at the ‘right to be forgotten’ or the rights under the General Data Protection Regulation (EU) 2016/679 to see how the Charter has lead on privacy protection in the digital age.

The loss of the ‘actionability’ of general principles of EU law

The Bill makes clear that individuals will no longer be able to rely on general principles of EU law to generate a freestanding challenge to UK domestic legislation. The principles will only be retained in so far as they are relevant to the interpretation of retained EU law.

The government promised a ‘right-by-right’ analysis of essential rights. How did this work in practice? Why did some legal experts criticise the document?

On 5 December 2017, the government published a 73-page memorandum: Charter of Fundamental Rights of the EU—Right by Right Analysis. In summary, the memorandum argues that Charter rights will continue to be protected in UK law post-Brexit in a number of ways:

• through the EU law that is retained and preserved by the European Union (Withdrawal) Bill
• 18 Articles of the Charter correspond, entirely or largely to, Articles of the ECHR, and thus are protected both domestically and internationally
• eight Articles of the Charter include rights which are intrinsically linked to EU membership, and so only make sense in the context of EU membership
• other Articles include principles, which are different from rights, cannot be relied upon by individuals in the same way as rights
• the remaining Articles include rights that will continue to be protected in UK law in a number of ways
• many substantive rights are protected in the UK via common law or domestic legislation

Many legal experts have criticised the document for being just a restatement of the government’s position, and superficial in its analysis. There is some truth to the argument that the document reads more like a justification of the government’s position, rather than an effective tool for parliamentarians to use for substantive, and at times, legally technical debate.

Much of the analysis lacks a rigour that one might expect in the circumstances—the memorandum tends to set out corresponding provisions in other international human rights treaties or general principles of the common law, without much more. For example, one area in which there is an analytical deficit is the impact of the changes relating to the general principles of EU law. The government has expressed a willingness to revisit the technical detail on this.

It also arguably fails to grapple with the essential mechanics of the Charter. Tellingly, the memorandum was published after the government had made its position on the Charter clear, and so the exercise may well have been nugatory.

Which rights do you think will be most impacted by the government’s decision not to preserve the Charter in UK law?

It is impossible to say at this stage, because the government’s public position is that these rights will carry over into domestic law.

Unsurprisingly, the impact on equality law has attracted much attention. The Women and Equalities Select Committee Inquiry: Ensuring strong equalities legislation after EU Exit, voiced its concerns about the dilution of equality protection in the UK post-Brexit. The Committee recommended that the government consider introducing an amendment to the Equality Act 2010 (EqA 2010) to mirror the enforcement and interpretative provisions in HRA 1998. In response, the government restated its commitment ‘to ensuring that all the protections in EqA 2010 will continue to apply once we have left the EU’.

An amendment added to Schedule 7 of the European Union (Withdrawal) Bill during the Commons at Committee Stage sets out that certain explanatory statements must accompany statutory instruments made by ministers under the delegated powers in clauses 7(1), 8 or 9. These will require a minister to make statements:

• explaining the instrument or draft and the reasons for it
• explaining what any relevant law did before exit day and how the retained EU law is being changed
• indicating whether the draft legislation amends/repeals/revokes equalities legislation (EqA 2010, the Equality Act 2006 or any secondary legislation made under either of those Acts)—and if so, what the effect
• confirming that the minister has had due regard under equalities legislation to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under EqA 2010, so far as required by equalities legislation
• confirming that the minister considers that the instrument does no more than is appropriate

While this is a welcome amendment, it is certainly nowhere near as potent as the change proposed by the Women and Equalities Select Committee, which included adding a clause to the Bill containing an express commitment to maintain the current levels of equality protection when EU law is adopted into UK law.

Any other issues worth mentioning? What are your predictions?

Contrary to the government’s view, Brexit is likely to trigger years of complex, expensive litigation, in an age where legal aid is increasingly under threat. Some commentators have rightly commented that the very nature of the uncertainty regarding the protection of fundamental rights post-Brexit itself undermines fundamental rights and freedoms.

Interviewed by Evelyn Reid.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.