We were assured that leaving the EU would be seamless. We were told that the rights we possess as EU citizens would be retained as part of UK law. Yet, the current proposal in Clause 5(4) of the EU Withdrawal Bill states that “the Charter of Fundamental Rights is not part of domestic law on or after exit day”. The Explanations to the EU Withdrawal Bill, in almost Alice in Wonderland type thinking, justify the decision to exclude the Charter from retained EU law as follows, “The Charter did 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, as provided for in this Bill.”
With the DUP’s support, and the promise of a “detailed memorandum” from the Department For Exiting the European Union, the Government was able to head off defeat in a vote in Parliament to retain Clause 5(4) and ditch the Charter. Curiously, this memorandum was made available on 5th December, after MPs had voted, although another vote in the Commons has been promised any day now.
The document that was circulated on 5th December, whilst running to over 75 pages, is flimsy and contains no meaningful legal analysis. It “sets out how the Government considers that fundamental rights that are currently protected by EU law will be protected after exit from the EU”. Despite the promise of a “detailed memorandum” the document doesn’t even try to deliver. It points out that it “does not, however, purport to be an exhaustive analysis and is being provided only as guidance in the context of the Bill. It should not be relied on as an authoritative statement of the law” (apparently, according to the document, only courts can do that! It’s interesting that the Government is more than willing to assert what the law is when it suits them).
A pattern, it would appear, is emerging. Comprehensive impact assessments on the effect of Brexit in various areas of daily life in the UK were promised and again, there was a failure to deliver. At every opportunity the Government seeks to obfuscate. It was no different with this memorandum on the Charter. Much energy is wasted on the obvious (i.e. the Charter applies to EU institutions and contains the odd specific right only relevant to membership of the EU), instead of drilling deep into the consequences of losing the Charter as part of UK law.
Is the Government’s assertion correct that in effect the Charter is redundant and can be done away with without causing a diminution of human rights protection in the UK? Has the memorandum made the case for ditching the Charter?
Much is made in the document that the Government plans to retain EU fundamental principles post Brexit (the EU acquis referred to above) and that these can be used to interpret retained EU law. It is these fundamental principles, as well as retained EU law, that are the source of the rights in the Charter, the document exhorts. Therefore if the principles remain, there is no need for the Charter, their argument goes.
There is so much that is incorrect about these assertions, not least that the EU Withdrawal Bill expressly takes away the right to bring a legal challenge under EU fundamental principles, but that detail aside, these statements are a wilful misunderstanding and misrepresentation of the Charter. The Charter is the EU’s Bill of Rights. The Charter is an autonomous – standalone - document. The rights within it are not dependent upon their sources and - in turn - rights that the Charter contains go well beyond those sources. Those sources also extend far beyond EU law and EU fundamental principles. The Charter is now one of the three treaties making up the EU. Its significance is huge. It has quasi-constitutional status. EU law cannot exist without the Charter.
The Charter greatly enhances human rights within the EU. The 50 rights contained in the Charter go beyond the framework for human rights protection under UK law. And even though there are rights in the Charter that are contained in the Human Rights Act, the majority of the rights in the Charter are novel in a UK context.
It is beyond serious debate that, whatever broadly similar or approximate rights might exist in statute or at common law, the EU Charter adds significantly to UK law in respect of virtually all the rights contained in it.
If the EU Charter is to be excluded, the Government needs to explain how the same level of human rights protection will continue. By simply asserting that EU law and EU fundamental principles will be converted into UK law is insufficient.
I identify 32 questions for the Government (HMG) which concern Charter rights that have no obvious equivalence in UK law. I have asked the Government to confirm how they anticipate these rights will be enforced in the absence of the Charter, including which aspects of retained EU law and fundamental rights principles could be used to guarantee these rights. The memorandum circulated on 5th December does not do this. It simply repeats its own rhetoric. These questions are:
i. Will HMG identify where the right to human dignity is expressly recognised in UK law as an enforceable right? Article 1, CFR states: Human dignity is inviolable. It must be respected and protected.
ii. Case law of the European Court of Human Rights has referred to dignity, as have the courts in the UK, but that is not the same as granting an independent and enforceable right to human dignity. Is there an enforceable right to human dignity of general application under the common law or in UK statute law which will be applicable to retained EU law post Brexit?
iii. Will HMG identify where the right to respect for physical and mental integrity is expressly recognised in UK law as an enforceable right? Article 3, CFR spells out the right to the integrity of the person. This right is separate and distinct from the prohibition on torture, inhuman and degrading treatment and punishment provided for in the ECHR. If the Charter is omitted from retained EU law, will there no longer be an enforceable right to integrity of the person in the UK in relation to that retained EU law?
iv. Will HMG identify where the right to protection of personal data including the right to be forgotten, is expressly recognised in UK law as an enforceable human right? Article 8, CFR guarantees protection of personal data. This is a separate and distinct right from the right to respect for private life provided for in the ECHR.
v. If the Charter is left out from retained EU law will there no longer be an enforceable right to protection of personal data in the UK in relation to that retained EU law?
vi. Case law of the European Court of Human Rights has referred to the right to protection of personal data, as have the courts in the UK, but that is not the same as granting an independent and enforceable right to protection of personal data. Is there an enforceable right to the protection of personal data of general application under the common law or in UK statute law? How will HMG ensure the same level of protection of personal data post Brexit?
vii. Article 9, CFR contains a right to marry which is gender neutral. Will HMG identify where that gender neutral right to marry is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
viii. Article 10(2), CFR contains a right to conscientious objection. Will HMG identify where that right is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
ix. Article 11(2), requires that the freedom and pluralism of the media shall be respected. Will HMG identify where that freedom and pluralism of the media is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
x. Article 13, CFR requires that academic freedom shall be respected. Will HMG identify where respect for academic freedom is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
xi. Article 14, CFR guarantees a right to education. This right, unlike the right in the ECHR, is framed in the affirmative as opposed to the right in Protocol 1, Article 3 ECHR as a right not to be denied an education. Will HMG identify where the right to education is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
xii. Articles 15 CFR grants the freedom to choose an occupation and the right to engage in work. Will HMG identify where the freedom to choose an occupation and the right to engage in work is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
xiii. As part of the Brexit negotiations how will the Secretary of State for Exiting the EU guarantee that Articles 15(2) and (3) are guaranteed?
xiv. Articles 16 and 17(1) CFR guarantee the freedom to conduct a business and the right to property. Will HMG identify where the freedom to conduct a business is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
xv. As part of the Brexit negotiations how will the Secretary of State for Exiting the EU guarantee that Articles 16 and 17(1) are guaranteed?
xvi. Article 17(2), CFR requires that intellectual property shall be respected. Will HMG identify where the respect for intellectual property is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
xvii. Article 18, CFR guarantees the right to asylum. Will HMG identify where the right to asylum is expressly recognised in UK law as an enforceable right (as opposed to granting asylum)? How will HMG ensure the same level of protection post Brexit?
xviii. Article 19(1), CFR prohibits collective expulsions. Will HMG identify where the prohibition on collective expulsions is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
xix. Is equality before the law as guaranteed by Article 20, CFR an enforceable right in UK law? If it is guaranteed by the common law does this apply across the UK and can that right be removed or limited by statute? How will HMG ensure the same level of protection post Brexit?
xx. The Equality Act 2010 deepened and strengthened non-discrimination provisions in UK law. Article 21, CFR prohibits against discrimination. Is the reach of Article 21 wider than the Equality Act 2010? In what respects will there be lesser protection against discrimination if the Charter is omitted from retained EU law? How will HMG ensure the same level of protection post Brexit?
xxi. Article 21(1), CFR expressly protects against discrimination based on sexual orientation in UK law. Will HMG identify where protection against discrimination is recognised as a human right in UK and where that right is expressly recognised in UK law as an enforceable right? How will HMG ensure the same level of protection post Brexit?
xxii. In international law, the UK is bound by its human rights treaty obligations at the UN and the Council of Europe. Do any of these treaty obligations expressly protect against discrimination on the basis of sexual orientation?
xxiii. Are the other protected grounds in Article 21(1), CFR fully covered by the UK’s wider international human rights treaty obligations? If so, how?
xxiv. The EU Charter provides extensive protection from discrimination on the grounds of sex, including in Articles 21, 23 and 33. In the absence of the Charter, can HMG confirm that these rights are fully protected under UK law and if they are, how does UK law give effect to these rights? How will HMG ensure the same level of protection post Brexit?
xxv. Can HMG confirm that all references to sex in the CFR include those who are trans?
xxvi. Article 24, CFR gives effect within the scope of EU law to the UN Convention on the Rights of the Child. That Convention, whilst ratified by the UK does not have domestic effect. What rights in UK law guarantee the same level of protection for children as are provided by Article 24 within the scope of EU law? How will HMG ensure the same level of protection post Brexit?
xxvii. The solidarity rights guaranteed by Title IV of the Charter continue to apply and Protocol 30 to the Lisbon Treaty simply clarifies their application. Can HMG confirm how these rights will continue to be guaranteed post Brexit should the Charter be omitted? How will HMG ensure the same level of protection post Brexit?
xxviii. How will a high level of human health protection as provided for by Article 35 be guaranteed? Similarly how will a high level of environmental protection (Article 37), as well as consumer protection (Article 38) continue to apply within UK law?
xxix. Is there a right to good administration within UK law which is comparable to Article 41, CFR?
xxx. The right to a fair trial under the ECHR is limited to the determination of a criminal charge and civil rights. Article 47, CFR is not restricted in this way. How does UK law provide for the same scope as Article 47? How will HMG ensure the same level of protection post Brexit?
xxxi. Does UK law provide for the same access to legal aid as guaranteed by Article 47 and if so how?
xxxii. Article 48(3) asserts that, the severity of penalties must not be disproportionate to the criminal offence. Where is there a comparable guarantee in UK law?
Human rights matter. Brexit should not be used as an excuse to dilute human rights protection in the UK. If the Government can’t answer these questions satisfactorily, and it’s clear from their memorandum dated 5th December that they can’t, they must retain the Charter as part of UK law post Brexit.