Fundamental Rights ‘vs’ Brexit

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The Charter of Fundamental Rights of the EU (the Charter) brought together the rights protected under EU law in a single document. It reaffirmed the rights and principles that already existed in EU law and was given legal effect by the Lisbon Treaty on its entry into force in December 2009. Article 6(1) Treaty on European Union (TEU) provides for the Charter to have the same legal status as the EU Treaties.

The Charter applies to member states when they are acting within the scope of EU law. It is comprised of rights which already existed in EU law and were drawn from many sources including constitutional traditions and international obligations common to the member states, as well as provisions laid out in the European Convention on Human Rights (ECHR). Many of these rights are provided for in the UK under the Human Rights Act 1998.

The UK, along with Poland, negotiated a protocol to the treaty relating to the application of the Charter when it was initially introduced. This provision prevents courts from ruling that any particular law, regulation or administrative provision of the United Kingdom is inconsistent with the Charter provisions. The UK Government were opposed to a legally binding charter, due to concerns that it would result in British citizens going to the European Court of Justice in attempts to enforce their Charter rights in the UK.

Brexit has presented an opening for the UK to diverge from established EU rules and principles, and it is clear that the current government intend to do this. Clause 5(4) of the Withdrawal Bill states that the Charter will not be retained in UK law after its exit from the EU. This position was reaffirmed last month when MPs voted down (by 317 votes to 299) an amendment which sought to retain Charter provisions. In its recent factsheet, the Department for Exiting the European Union justified the position on the grounds that the Charter was “never the source of fundamental rights,” and simply reaffirms rights that already exist under EU law. It states that substantive EU law will be converted into domestic law, therefore protecting fundamental rights in the UK.

The government’s plans have been heavily criticised by the Labour party, as well as various civil rights bodies and charities. Shadow Brexit Secretary Kier Starmer stated that the government’s plan will “take rights from the charter and scatter them to their original sources: the polar opposite of effective human rights protection.”

The Equality and Human Rights Commission have warned that there will be no adequate replacement of the Charter once the Withdrawal Bill comes into force. They argue that removal of the Charter will cause legal confusion and gaps in the law. The group stated that fundamental rights “must be the focus for the type of country we want to be after Brexit. Current protections must not be jeopardised.”

Last November, the Law Society of Scotland published a report in response to the Joint Select Committee on Human Rights consultation. The report identified several Charter provisions which are based on UN conventions or other international instruments and are not ratified into domestic law. Enforcement of these rights may become more difficult post-Brexit as “they cannot be the basis of action in courts in the UK but can only be adjudicated on the international plane. In relation to other rights which could have been adjudicated before the Court of Justice the European Union (CJEU), that route will be terminated by Clause 6 of the bill.”

It is clear that enforcement of certain fundamental rights and principles will become more difficult for UK citizens post-Brexit, particularity in domestic courts. Induvial will likely be forced to depend more heavily on the ECHR. It is yet to be seen whether the government’s position will be challenged in the future and whether further domestic legislation will be introduced. 

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