Matt Bevington / May 2018
Equality and human rights were not top of the agenda during the Brexit campaign. The EU Charter—which sets out the fundamental rights of EU citizens—was conspicuous by its absence, especially given the prominence of the message to ‘take back control’ of the UK’s laws.
The issues concerning the Charter begin with the EU Withdrawal Bill in the UK parliament. This is the main bill managing the domestic aspects of UK’s exit from the EU. It converts existing EU into UK law, and stops new EU law coming into force in the UK once it has left. However, despite carrying over the bulk of EU legislation, UK ministers decided the same would not apply with the EU Charter.
In its official ‘defence’ of the bill from a human rights perspective, the government’s only justification for getting rid of the Charter was on the grounds that it “was not the source of fundamental rights in EU law”. This itself is disputed by human rights experts. But, nevertheless, the Charter was seen as unnecessary, especially as the preamble and the chapter on the rights of EU citizens would no longer be relevant.
The real reason may have more to do with severing as many links with the EU courts as possible, particularly to avoid UK legislation being challenged in future on the basis of the Charter. But this obscurity has created a level of mistrust in the government’s motives. A recent joint report by The UK in a Changing Europe and the Oxford Human Rights Hub set out some leading UK academics’ concerns.
As far as the Charter is concerned, there are a couple of obvious problems with not retaining it. The first is that the European Convention on Human Rights (ECHR), which the government cites as the source of many of the rights contained in the Charter, does not confer equivalent rights.
To take but one example, Article 3 of the Charter protects the right to the integrity of the person. The government has said this right will continue to be protected by the general principles of EU law and by Article 8 of the ECHR.
However, both of these protections are flawed. The general principles will only be used for interpretation of existing UK law after Brexit, not for enforcing this right, and Article 8 of the ECHR is narrower in scope.
The Charter covers physical and mental integrity, and a list of bioethical protections, whereas the ECHR protects the right to a private life and non-interference by public authorities. In short, they are not the same thing.
Second, in some cases, the sources of rights the government cites do not confer the same rights at all. For example, the Charter contains a chapter on equality, something the ECHR does not.
Within this chapter, for example, the rights of the child are explicitly set out in Article 24. The government has said that this will continue to be protected by the UN Convention on the Rights of the Child. But this agreement has not been incorporated into UK law, and so does not provide rights to citizens that are enforceable.
What is more, this is not just a hypothetical problem that might occur sometime in the distant future. The European Commission’s 2016 report on the application of the Charter highlighted a case before the UK courts in which a Nigerian man’s deportation was overturned on the grounds that his children (both UK nationals) had the right to maintain contact with both parents. Article 24 provided a directly enforceable right on behalf of the children not to be separated from their parent(s). It is eminently possible this would not be the case without the Charter.
Unlike most Western countries, the UK does not have a codified constitution that sets out citizens’ fundamental rights in a way that is clear and transparent, such as the German Basic Law. Furthermore, UK legislation that would establish the inviolability of these rights, such as the Human Rights Act, does not have the strength of constitutional law. Other legislation, such as the Equality Acts, could be amended directly by ministers using so-called Henry VIII powers introduced by the Withdrawal Bill, without going through the full parliamentary procedure in the event of deficiencies. This creates even greater uncertainty about the human rights landscape after the UK leaves the EU.
Recently, the UK government has come under greater pressure over the Charter, not least because the Withdrawal Bill is being scrutinised in the upper house of the UK parliament. Amendments have been passed, including one which would retain the Charter, but these would have to be accepted by the House of Commons (the lower house). This is by no means certain.
UK citizens won’t suddenly find themselves devoid of rights the day the UK leaves the EU. The changes are more subtle than that, and comprise mostly a change in the quality and scope of rights rather than their outright removal. For this reason, the topic is unlikely to get the cut-through necessary to inform the public sufficiently about the changes likely to occur. And for that reason, when they realise it will probably be too late.