Briefing and Accompanying Questions for Clarification from the UK Government in Relation to the EU Charter of Fundamental Rights and the Proposal in the EU Withdrawal Bill to Exclude the Charter from UK Law Post Brexit

1.      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 justifies 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.”

2.      This statement in the Bill’s Explanations is misleading. It would appear to consciously distort the impact of the Charter. The Charter has transformed access to human rights protection within the EU. Drawing on existing rights, the Charter set out a new framework for human rights protection under EU law. By making the Charter one of the three treaties making up the EU, the Charter takes precedence over EU law. The decision to remove the EU Charter from retained EU law post Brexit cannot be justified by the reasons given. Those reasons do not stand up to scrutiny.

3.      It is correct to say that the Charter did not replace EU fundamental rights principles. The Charter formulated and prescribed those principles. The EU Charter is now the principal source of EU fundamental rights. It is disingenuous to say that the Charter did not create new rights. By drawing together the rights in the Charter from many disparate sources a number of essential and core issues where recognised as rights. That was the point of drafting the Charter. It captured those rights that all in the EU could take for granted. It made visible and tangible what had previously been unknown.

4.      Prior to the drafting of the Charter in 2000 it was not possible to identify the scope and extent of EU fundamental rights. As well as identifying new issues as requiring protection as human rights which had previously not attained that status, the Charter has expanded and developed more established rights and it has recognised new rights.

5.      The decision to exclude the Charter from retained EU law risks a serious diminution of rights protection in the UK. The rest of EU law that is being retained is expected to be interpreted consistently with the Charter. The Charter underpins all EU law. By converting the EU acquis in to UK law is not the same as continuing the protection provided for by the Charter.

6.      And whilst the Explanations to the EU Withdrawal Bill acknowledge that the EU fundamental rights principles will continue to apply, this is also misleading, bordering on the dishonest, because they apply in name only. They cannot be enforced. As the Explanations point out, under Schedule 1 “there is no right of action in domestic law post‐exit based on failure to comply with EU general principles.” That Schedule also prevents courts from ruling that “a particular act was unlawful or quash any action taken on the basis that it was not compatible with the general principles”. General principles are therefore rendered nugatory. Damages are also disallowed.

7.      If the Charter is not to be retained post Brexit, to prevent that serious diminution of rights protection in the UK, it must be replaced. One method to retain a comparable level of human rights protection post Brexit would be to append the core UN human rights treaties ratified by the UK to the Human Rights Act (HRA), along with key treaties adopted under the Council of Europe.

8.      The simplest mechanism to retain the same level of human rights protection post Brexit that we currently enjoy is to retain the Charter. If retained, to ensure consistency, the Charter needs to be given the same status as the European Convention of Human Rights (ECHR) in UK law in relation to retained EU law.

9.      Again to ensure consistency, the judgments of the Court of Justice of the European Union (CJEU) should be given the same status in UK law as the judgments of the European Court of Human Rights. Under S.2 of the HRA, those judgments must be taken into account.

10.  If HMG has concerns about how the EU Charter has been determined by the CJEU, which cases which have been decided by the CJEU with reference to the Charter would HMG take issue with?

11.  The 50 rights contained in the Charter go beyond the framework for human rights protection in the UK. And even though, as the Bill’s Explanations acknowledge, there are rights in the Charter that are contained in the ECHR, which to all intents and purposes is part of UK law, the majority of the rights in the Charter are novel in a UK context. It maybe that the UK recognises those rights, for example, the UK has ratified the UN Convention on the Rights of the Child, but those rights are not enforceable under UK law. They are under the Charter.

12.  As the Bill’s Explanations correctly note, the Charter does draw upon the wider UN human rights framework but the overwhelming majority of those rights are not enforceable in the UK. This contrasts with the Charter which is enforceable in the UK when the issues in dispute are within the scope of EU law.

13.  As is clear from the EU Withdrawal Bill itself, the scope of EU law is wide and extensive and currently the Charter applies whenever EU law is engaged. The Charter does not apply to purely UK domestic law. It would not, for example, apply to the detention of prisoners, unless those detainees are held pursuant to EU law, for example under a European Arrest Warrant.

14.  Parliament has made it clear to the Government that it wants to work with it to ensure that Brexit is seamless and successful. Parliament has not authorised the Government to use Brexit as an opportunity to reduce human rights protection in the UK.

15.  The EU Withdrawal Bill and the accompanying Explanations propose a serious and significant reduction in human rights protection within the UK as a consequence of leaving the EU. If that is correct, that is unacceptable.

16.  If the EU Charter is to be excluded from retained EU law post Brexit, the Government needs to explain how the same level of human rights protection will continue.  By simply asserting the EU acquis will be converted into UK law is insufficient. It is incorrect to assert that this could establish the same level of human rights protection as is currently guaranteed by the Charter.

17.  Below a non-exhaustive list of Charter rights are identified that are either not included in the HRA or are developed beyond the rights contained in the ECHR. These rights have no obvious equivalence in UK law. The Government is asked to confirm how they anticipate these rights will be enforced in the absence of the Charter, including which aspects of the EU acquis could be used to guarantee these rights.

18.  Any diminution of human rights protection is of the utmost significance. It is people, their property and their interests that are harmed as a consequence. The Government needs to engage in this exercise with corresponding seriousness. Simply referring to the Explanations which accompany the EU Charter would trivialise what we are seeking to establish.

19.  The purpose of those Explanations was to provide a road map identifying where the rights in the Charter are drawn from. Those Explanations do not provide a legal basis for asserting rights.

20.  Relying on any distinction between rights and principles contained in those Explanations and Article 52, CFR more generally to obfuscate would be unhelpful and suggest an unwillingness to engage in this exercise. It is accepted that the distinction between rights and principles may be germane on a case by case basis, but it is not relevant to the framework of human rights protection guaranteed by the Charter itself.

21.  By requesting this detailed clarification from the Government we are seeking to establish to what extent the exclusion of the EU Charter will, may or will not dilute human rights protection in the UK post Brexit. Once there is a clearer picture following the outcome of this exercise it may be possible to support the exclusion of the Charter from retained EU law.

22.  Where the EU acquis is relevant to the response please give full details.

Questions for Clarification from the Department for Exiting the European Union (HMG):

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? 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?

 

Jonathan Cooper

Doughty Street Chambers

9 November 2017

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