Is Brexit just a snag in European Union integration without accompanying regression in human rights legislation? Of course not. Brexit signals a backsliding in human rights protections and imperils the closest thing to a constitutional framework for human rights in the United Kingdom.
The U.K. has over 40 years of EU law transposed into its own laws. Together, the EU laws, which are supreme to the domestic laws of the EU states; the Common Law system of England and Wales, which is law created by judges in courts; and the legislative directives of the Council of Europe, an international organization comprised of 47 European states, constitute an overarching, legally-binding system for the promotion, respect and protection of fundamental human rights and freedoms.
The human rights protections provided to British citizens by the U.K.’s membership in the EU and Council of Europe are distinct but also complementary. The EU’s Charter of Fundamental Rights and Council of Europe’s European Convention on Human Rights, which established the European Court of Human Rights as the apex interpretative body of EU law, all contribute to the human rights framework that protects citizens in the U.K. However, it is not the U.K. government’s intention to retain all EU law following Brexit. Instead, it has introduced what is now published as the European Union (Withdrawal) Bill, which will end the supremacy of EU law in the U.K. legal system when passed.
For any U.K. electorate, the decision not to transpose the EU’s Charter of Fundamental Rights— one of the main instruments governing human rights protection in the EU— into domestic law via the withdrawal bill should cause concern. It means British citizens will be stripped of some of the legal protections guaranteed by the Charter if no equivalent legislative interventions are put in place.
This could mean a reduction in human rights and procedural remedies in areas within the scope of EU law. These areas include privacy, data protection and the right to a fair hearing, to name a few. The General Data Protection Regulation of the EU, passed in 2018, hinged on the Charter, for instance. It is currently directly applicable in the U.K. and affords British citizens an elevated degree of personal data privacy and protection that expands on the protections offered by the UK Data Protection Act of 1998. The introduction of the right to be forgotten, for example, provides an obligation to erase any personal data held by an organization upon request by the right holder, the obligation to ensure that personal data is collected only after explicit consent, and the right to access personal data upon request in a readable and portable format, rights which are some of the data security protections accorded to all EU citizens. There are currently no immediate equivalent protections in U.K. domestic law.
It would also mean the loss of a backstop of protection against regression to the national laws in areas such as anti-discrimination, environmental protections, workers’ rights, access to social security, and health care and consumer rights.
Furthermore, an EU exit represents the loss of the oversight role by the European Court of Justice over the U.K. in observance of its human rights obligations under EU laws. The Court of Justice has long protected fundamental rights by interpreting them as general principles of EU law for the last three decades.
It is clear that the elimination of European oversight over the many social gains exposes these guarantees to governmental attack and other mechanisms for dilution post-Brexit. As the situation stands, removal of legal protections may not even involve substantive parliamentary oversight. Historically, the U.K. government has strongly opposed much of Europe’s social rights agenda. So, only time will tell if Brexit will mean the end of many social rights protection in the U.K. The collective right of EU citizens were established at different times and in different ways, and the Charter was designed to summarize all the personal, civic, political, economic and social rights into one binding instrument.
At the moment, the U.K. has several layers of human rights protection frameworks that directly and indirectly impact its legal mechanisms in place to uphold fundamental individual rights. Where common law falls short, the U.K. courts rely on the jurisprudence of its affiliated regional and judicial institutions: The Court of Justice of the European Union and the European Court of Human Rights. This means the U.K. courts are obligated to consider the decisions of the European Court of Human Rights and act within the case law jurisprudence developed by it, not to regress from it and therefore undermine the level of protection afforded to UK citizens. Equally, the U.K. parliament and the executive are bound by its decisions as a State obligation under international law.
Of importance to note is that while the Charter’s direct applicability in the U.K. ends on “exit day,” the protection derived from the European Convention on Human Rights and the subsidiarity role of the European Court of Human Rights will remain unaffected. The U.K. still remains a member to the Council of Europe whose membership is hinged on ratification of its convention. In fact, the Council’s mandate revolves around the objectives of the Convention, and all 47 members states must be contracting signatories to the law.
The Debate: Fundamental Rights Protections Post-Brexit
Much of the discussion at this stage is necessarily speculative as “exit day” has yet to arrive; even the provisions of the European Withdrawal Bill, with the amendments from the House of Commons set to be returned to the House of Lords, may not reach the statute book in their final form. The whole decoupling process is a beehive of uncertainties, at least for now. No final negotiation terms have yet been reached, and the stalemate seems not only to be in Brussels, the decoupling negotiation seat, but also at number 10 Downing Street.
At the moment, while the government remains adamant in its response to parliament that there will be no rights regression, the Joint Committee on Human Rights, a select committee of both the House of Commons and House of Lords, remains unsatisfied with these answers. Some believe the disapplication of the Charter will not only result in a regression in rights protection but also create legal uncertainties. As general principles of EU law, the Charter rights form the anchorage upon which most legislation is established.
Human rights activists are calling for a reevaluation of Brexit, and a recent advisory case by anti-Brexiters in Edinburgh has expressed that the U.K. could still stay in the European Union if, for example, the current withdrawal stalemate continues and the resultant negotiation terms in the European Union Withdrawal Bill are rejected by Parliament. However, at the moment, there are no immediate indications as to when the court of sessions in Edinburgh will set down the case for a full hearing. While the opinion may take a long time to come, it remains worthy for consideration before “exit day” arrives.