Of human rights and Brexit: the importance of the EU Charter.

Yesterday, as you may be aware, was Day Two of the Commons’ consideration of the Lords amendments to the European Union (Withdrawal) Bill. Lords amendments that were up for debate in the House included Amendment no. 1 (to prevent the repeal of the 1972 Act unless the UK government sets out plans to negotiate a continued customs union post Brexit); amendment no. 51 (to oblige the UK government to prioritise continued participation in the EEA during the negotiations); and amendment no. 5 (to allow for the transposition of the EU Charter of Fundamental Rights into domestic law post Brexit). I had been glued to the Commons livestream and BBC Parliament throughout Tuesday (13 June), Day One of consideration, and Wednesday, Day Two of same.

Yesterday, I recalled how I had followed as the Lords inflicted defeat after defeat on the UK government on the Bill. I remembered feeling so utterly relieved that vital issues had been raised in the Lords, and that important amendments had been tabled to the Bill (including an amendment to uphold the provisions of the Good Friday Agreement, to allow for continued North-South co-operation, and to prevent a hard border on the island). I had felt so frustrated at the government’s lack of consideration of such pressing issues, at their continuous intent to pursue a hard Brexit, at their seemingly haphazard Brexit policy. To see the Lords debate and consider the issues which the government seemed intent to ignore was refreshing and uplifting. Finally, I thought, finally issues like the Good Friday Agreement and the need to prevent the imposition of a hard border in Ireland were being considered and would be inserted into draft legislation. Finally, human rights and equality protections were being recognised, and tabled for inclusion in the draft legislation.

You see, the outcome of the European Referendum in the United Kingdom which led to the Brexit result always had vast political, economic and social implications. There remains, however, considerable uncertainty as to what those ramifications will be – including the implications for human rights standards and protection. This uncertainty has not been helped by the repeated dismissals of the UK government that human rights and equality protections would not diminish – even as the White Paper on the then-named Great Repeal Bill was published, with the deliberate ommission of the EU Charter.

The European Union (Withdrawal) Bill when introduced in the Commons last year in accordance with the White paper did not make provision for the retention of the Charter. The UK government considered then (and still does now) it to be an exception to the incorporation of EU law into UK law, with the Bill stating the Charter shall not be part of domestic law on or after exit day. The Bill states this does not affect the retention of any fundamental rights or principles which exist irrespective of the Charter. The UK Government has emphasised that the Charter did not create new rights; rather it codified rights and principles already present in EU law.

This claim is inaccurate.

All EU member states have signed up to the European Union Charter of Fundamental Rights. The Charter was given legal status in 2007 through the Lisbon Treaty, and was introduced in December 2009. The Charter complements the European Convention on Human Rights (ECHR), and recognises at Article 52(3) that wherever Charter rights correspond to Convention rights, the meaning and scope of the rights are the same as those laid down by the Convention. This provision does not prevent EU law providing more expansive protection. Indeed, EU law has availed of this, as outlined below.

Now, the scope of the Charter is narrower than the ECHR, in that it applies the convention rights only to public bodies and only when they make decisions within the scope of EU Law. Moreover, the Charter has not been incorporated into domestic law through the Human Rights Act 1998. However, in other respects, the Charter offers greater scope through enforcement at the Court of Justice of the European Union (CJEU). The CJEU can disapply national law and provide remedies. In contrast, recognised breaches of Convention rights in primary legislation can only lead to a declaration of incompatibility, thus leaving any remedy to Parliament. Moreover, the Charter also goes beyond the Convention in outlining social and economic rights alongside civil and political rights under the headings of dignity, freedom, equality, solidarity, citizen’s rights and justice.

Therefore, whilst rights similar to most Charter rights can be found in ECHR and domestic laws, it is important to note that similar is not necessarily the same. The Charter protects important rights that may not be fully secured by other sources.

The Charter is widely considered to be the most advanced document of its kind, and includes rights that cannot be found in any other directly enforceable fundamental rights instrument to which the UK is a party. Unlike older instruments, the Charter contains ‘third generation’ rights – such as to data protection and guarantees on bioethics – that have proven especially important in protecting people’s rights in light of rapid technological and societal change.

UK law does not have the domestic equivalent of the Charter, meaning there could be a gap in human rights protections for such outlined third generation fundamental rights ie socio-economic rights post-Brexit.

Lord Pannick moved the amendment in the Lords which sought to allow for the transposition of the Charter into UK statute post Brexit. He emphasised the significant protections it provides, the legal uncertainty that would be generated should it not be incorporated into domestic law, and the loss of rights protections which are not present in current domestic legislation. The majority of peers who voted on his amendment understood the significance of the Charter, and voted in favour of retaining it. And so the government was defeated.

The government had avoided an embarassing defeat previously in the Commons. In November 2017, the former Attorney General Dominic Grieve MP tabled an amendment that would have enshrined the EU Charter into UK law as part of the EU (Withdrawal) Bill. During the third day of debate on the Bill, the Solicitor General, Robert Buckland, said the UK Government was willing to work with Mr Grieve to see how rights under the Charter could be kept after Brexit, and would introduce its own amendment to this effect later in the bill’s passage. Mr Grieve said that was sufficient reassurance for him, and so he would not press for a vote on his amendment.

On the 5th December 2017, the UK Government published its Right by Right analysis of the Charter. The conclusion was that there would no weakening of rights protections post-Brexit, even if the Charter ceased to be part of UK statute. However, the UK Government’s Right by Right analysis, contrary to its aim, clearly demonstrates what will be lost when the Charter is abandoned. As highlighted by Liberty and Amnesty, the analysis cites the general principles of EU as providing equivalent rights -yet these are the very same principles whose enforceability is eroded by the European Union (Withdrawal) Bill.

In addition, the Equality and Human Rights Commission sought independent legal advice which found that, as opposed to the prevention of weakening of rights protections, rights would in fact be lost, such as those which do not have direct equivalents in other UK human rights law e.g a freestanding right to non-discrimination, protection of a child’s best interests and the right to human dignity.

The Opinion concluded:
In summary, therefore, my principal conclusion is that the approach currently taken in the Bill does not achieve the Government’s stated intention that the protection of substantive rights conferred by the Charter will not be weakened. That intention can only be achieved by 13 incorporating relevant provisions of the Charter in the corpus of EU law which is retained after Brexit.

And so we come full circle, to Lord Pannick’s amendment receiving support from a majority of peers in the Lords, to that amendment returning to the Commons for a potential showdown in accordance with parliamentary ping pong. I followed the debate with interest.

In April this year, at the SDLP annual conference, I proposed my motion which included a provision to note with concern that the UK government’s EU (Withdrawal) Bill omitted to transpose the EU Charter of Fundamental Rights into domestic law upon withdrawal from the EU. I noted my concern that the government’s Brexit policy was not considering vital human rights and equality protections. My motion overall called for the prevention of any weakening of human rights protection post-Brexit.

I spoke in my capacity as the SDLP’s International Secretary, and said (half jokingly!) how since I was elected to the post, I had not stopped talking about the ramifications of Brexit to NI, but particularly my concerns about implications for human rights and equality standards.

Yesterday, I watched as the House of Commons voted by just twenty votes (321-301) to reject the amendment from the House of Lords to the EU (Withdrawal) Bill that would have incorporated the EU Charter into domestic law.

Watching as the vote was confirmed, I felt a crushing sense of loss.

The EU Charter provides for additional recognition and protection for third generation, fundamental rights, socio-economic rights such as workers’ rights (including collective bargaining). The Charter has allowed for the evolution of important rights we now take for granted. It has been a valuable addition to equality and non-discrimination law, specifically around LGBT rights, children’s rights, and rights of the elderly. I could not, and today I still cannot understand how MPs could vote to reject important provisions on human rights, equality, and non-discrimination protections.

I was disappointed, but sadly not surprised. After all, the party of government has long supported the repeal of the Human Rights Act 1998, and its replacement with a British Bill of Rights. Moreover, the Conservative party would also been keen to see the UK withdraw from the ECHR – a deeply concerning prospect.

No matter what the UK government, various ministers, or the UK government’s ‘right by right analysis’ state, UK law does not have the equivalent of the EU Charter. Excluding the EU Charter from the EU (Withdrawal) Bill, with the implication that it will not be retained post Brexit, will result in a significant reduction in human rights protections. There will be a gap in human rights protections for those third generational rights, those socio-economic rights, as well as generate legal uncertainty and confusion.

There will also be a specific impact on NI: the Good Friday Agreement provided that there would be an equivalence of human rights and equality standards across the island of Ireland. If NI loses the protections advanced by the EU Charter whilst the Republic retains them, then citizens in NI will suffer from a diminution of human rights standards, recognition, and protection. The UK government is a co-guarantor of the Agreement; it should be aware that its desire to refrain from incorporating the EU Charter into domestic law clashes with the Agreement.

The overall decision to leave the European Union has highlighted -and in conjunction with the UK government’s current Brexit policy, threatened -the Good Friday Agreement’s aim of ensuring an equivalent level of human rights protection across the island of Ireland. The potential loss of the Charter in conjunction with the ongoing absence of a Bill of Rights for Northern Ireland means human rights protections could be undermined. The UK government as a co-guarantor of the Good Friday Agreement must understand it has a responsibility to support the full implementation and realisation of all provisions of the Agreement, including those which require equivalent human rights standards and protections. Apparently, the UK government is not aware of this important responsibility.

At the SDLP annual conference, I concluded my speech by saying, “Theresa May says Brexit means Brexit. We must say human rights mean human rights.”

I am disappointed and frustrated by yesterday’s vote and the continuation of the UK government to pursue a purist Brexit ideology which is ignoring human rights and equality provisions. We deserve better. Our human rights deserve better.

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