The process of withdrawing from the European Union will have a significant impact on the legal framework that protects human rights in the United Kingdom. A complete withdrawal from the EU would mean that the UK would no longer have to comply with the human rights obligations contained within the EU Treaties, the General Principles of EU law, which include respect for fundamental rights, or EU directives and regulations protecting fundamental rights. The Charter of Fundamental Rights (the Charter) would not apply and the Court of Justice of the European Union (CJEU) would most probably cease to have jurisdiction over the UK.
Given the profound nature of these changes, we agreed to conduct a short inquiry into the potential impact of the United Kingdom’s proposed withdrawal from the European Union on human rights.
At the outset, we stress the fact that this is only our initial foray into the complex subject of the implications of Brexit for human rights in the UK. Following the publication of this short report, we intend to return to these (and other) Brexit-related issues in 2017. Nonetheless, we have reached a number of preliminary conclusions which are sufficiently urgent and important that we are drawing them to the immediate attention of the Government. We have also raised a series of further questions that will need to be explored in greater detail during the course of 2017.
Our call for evidence was open-ended; however, we did highlight a number of matters including: the residence rights of UK and EU nationals; the impact of leaving the Charter on the overall legal framework of human rights protection in the UK; and the impact of withdrawal on a wide range of human rights (including workers’ rights, disability rights and discrimination).
The EU rights in question are extensive. In this report, we have focused on:
i)rights capable of replication in the law of the UK following Brexit;
ii)rights enjoyed by UK nationals in other Member States of the EU which might be retained following negotiation with the remaining EU Member States;1
iii)the extent to which individual rights currently protected under EU law are likely to be protected under the European Convention on Human Rights (ECHR);
iv)questions about the human rights obligations which might be included in any new bilateral trade agreements post-Brexit.
One of the most immediate and pressing concerns arising from Brexit relates to the residence rights of EU nationals currently in the UK and UK nationals in the EU. It is estimated that there are currently 2.9 million EU nationals resident in the UK. Just under 1.2 million UK nationals are thought to live in the 27 other EU Member States. The Secretary of State for International Trade, Rt Hon Liam Fox MP, has reportedly described EU nationals in the UK as one of the “main cards” in Brexit negotiations and Minister of State for Human Rights Sir Oliver Heald told us that the Prime Minister was seeking an “early agreement” on the status of UK nationals in Europe and EU nationals in the UK. He confirmed that the Government’s view was that to agree a unilateral position on the issue would not be helpful.
On this matter, we believe that it is not appropriate to treat individuals’ fundamental rights as a bargaining chip in negotiations with the remaining EU Member States, and indeed the Government will continue to have obligations under Article 8 of the ECHR, as we set out below. Moreover, irrespective of the moral issues raised by this approach, we also question the practicability of any policy for the mass deportation of EU nationals.
The actual position of such individuals is legally complicated and will depend on length of residence and other factors. The picture for both UK and EU citizens remains far from clear at this stage. For example, the House of Lords EU Justice Sub-Committee has received compelling evidence to the effect that some EU nationals who have been in the UK for over five years will not currently meet the criteria for permanent residence in circumstances where they have not effectively been exercising their Treaty rights whilst resident in the UK.
The rights of EU and UK nationals may be protected under Article 8 of the ECHR, but these rights are in no way absolute and do not provide the same protections as offered by EU law. Notably, interferences with Article 8 rights can be justified in certain circumstances where they would not be under current EU law.
However, although ECHR rights can be restricted, it would not be possible for the UK Government to establish a bright-line rule that would allow the deportation of EU nationals merely on the grounds that they had only been resident for a fixed period of time. Other factors, such as family connections and the residence rights of any children, would certainly be relevant and each case would have to be considered on its own facts. In the unlikely event that the Government sought to deport EU nationals, there could be the potential for significant, expensive and lengthy litigation leading to considerable legal uncertainty for a prolonged period of time. These cases would also have the potential to clog-up and overwhelm the court system.
Should any UK citizen currently resident in the EU have to return to the UK post-Brexit, a further issue may arise as to their entitlement to benefits, including job seeker’s allowance, housing benefit, universal credit and pension credit, (for example because of the ‘habitual residence test’).
In spite of being pressed to do so, the Government has, so far, refused to give an undertaking to protect the residence rights of EU nationals in the UK, arguing that it would potentially undermine its negotiating position with the other EU Member States. We note that the Government indicates that it is hopeful of an early agreement on this issue and is treating it as a priority. We recommend that the Government addresses the issue of residence rights urgently. This could be done by providing an undertaking to the effect that all of those legally resident at a reasonable cut-off date will be guaranteed permanent residence rights. The Government should also seek to safeguard the residence rights of UK nationals resident in other EU Member States at the outset of its Article 50 negotiations by way of a separate preliminary agreement. This ought to be done as soon as possible: if such action is not taken, individuals will be subject to continuing and distressing insecurity during at least two years of potentially protracted negotiations.
A second matter of immediate concern is the Government’s approach to safeguarding individuals’ fundamental rights, other than those protected under the ECHR, going forward. The Government seemed unacceptably reluctant to discuss this issue with the Committee. The Minister of State was unwilling or unable to tell us what the Government saw as the most significant human rights issues that would arise when the UK exits the EU.
We were also surprised to be informed that the Government saw the question of domestic protection for fundamental rights as a matter for negotiation with the other EU Member States. Unless the Government wishes to diminish such protection significantly, it is difficult to see why this should be a matter for negotiation and how this would be negotiated reciprocally with the remaining EU Member States.
The Government has said that it will introduce a ‘Great Repeal Bill’ in the next Parliamentary session.2 This would repeal the European Communities Act 1972 and end the application of EU law following Brexit. EU law currently underpins a great many fundamental rights and yet it is unclear whether the Government intends to remove any rights which UK citizens currently possess under EU law (and, if so, which rights are under threat).
Although the Prime Minister has committed to guaranteeing existing workers’ rights, the rights protected under EU law are much more extensive than this and include (amongst other things) rights under the Charter (which safeguard, for example, privacy and data rights) and rights against discrimination. It is not clear to us why the rights of workers should be treated any differently to other fundamental rights.
Given the lack of clarity in this area, we take the view that prior to publishing the Repeal Bill, and before triggering Article 50 of the Treaty on the European Union, the Government should set out a full and detailed list of all fundamental rights currently guaranteed under EU law and what approach it intends to take towards them.
In addition, we also recommend that the Government commits to publishing its proposed Repeal Bill in draft, to ensure that it receives detailed and rigorous scrutiny, ideally by a pre-legislative joint scrutiny committee. As the Bill will not take effect until the UK exits the EU, there should be adequate time to take a measured and thorough approach to this legislation to ensure it receives adequate consideration by Parliament.
Looking forward, even assuming that the Repeal Bill initially safeguards existing rights under EU law, this would not stop a future Government from repealing laws that it did not consider desirable. Without the underpinning of EU law, the rights preserved under the Repeal Bill would be subject to repeal or amendment. Under the UK constitution, aside from obligations under EU law, there is no way to entrench fundamental rights.
We were warned by a number of witnesses that the immense task of Brexit law reform could give rise to a temptation to delegate large swathes of legislative power to the Government. This should not be done by passing a Repeal Bill which includes broadly drafted provisions delegating law-making powers to the Government by way of what are known as ‘Henry VIII’ clauses (essentially delegated powers that enable Ministers to make changes to primary legislation by way of secondary legislation). The Government must resist the temptation to allow laws relating to fundamental rights to be repealed by secondary legislation for reasons of expediency. If the rights are to be changed there should be an opportunity for both Houses to seek both to amend and to vote on such changes.
During the course of our inquiry it also became clear that even if current EU laws are preserved by the Repeal Bill, this would not apply to new developments in the EU after the UK’s departure. This would occur both in relation to future EU regulations and directives on rights and the future case law of the CJEU. EU law has been described as the engine that hauled the development of UK anti-discrimination law. Brexit will mean that any future developments would no longer be implemented automatically into UK law. The Minister of State gave us no commitment that the Government would monitor EU law developments.
The removal of the European Communities Act 1972 from the statute book will mean that the UK courts will no longer, after Brexit, give primacy to EU law. The domestic courts will not be obliged to follow the judgments of the CJEU, nor will they be able to refer questions of EU law to the CJEU. We recommend that the Government should issue detailed statutory guidance on the status of existing CJEU case law. It will also have to determine how it will approach the status of future CJEU decisions and ensure that it is not isolated from other developments emanating from the EU. The question of how fundamental rights will be enforced going forward will also be of central importance.
An important issue relating to the Repeal Bill is that legislating for Brexit will have significant implications for rights in Scotland, Northern Ireland and Wales. We have not yet had the opportunity to speak to representatives of the devolved Governments on this issue (which formed the basis of submissions in the case R (Miller and Dos Santos) v Secretary of State for Exiting the European Union currently before the Supreme Court). At this stage we merely flag the fact that the question of the impact of Brexit on the protection of human rights in the devolved jurisdictions is an issue that we are likely to revisit following the Supreme Court’s judgment.
We considered the question of Trade Agreements.3 The European Union has included human rights clauses in its trade agreements for many years. In circumstances where the UK exits the EU, and has to enter into trade agreements with other states, the Government should, at the very least, ensure that the standards included in current agreements are maintained. Any dilution of standards would mean UK standards are lower than EU standards. That should be considered unacceptable and there is an argument to be made that if the UK enters into any new agreements, this is an opportunity to raise standards.
1 It is worth noting that there are also rights that could not be replicated in UK law upon withdrawal (such as the right to vote in elections for the European Parliament, or the right to seek to persuade the European Commission to take regulatory action in relation to a violation of EU environmental laws). We did not focus on these.
2 For more on this see pages 25-28.
3 This is a subject that we are also examining in detail as part of our inquiry into Human Rights and Business.
16 December 2016