1Introduction
Background to our inquiry
1.The process of withdrawing from the European Union (‘Brexit’) 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.4 The Charter of Fundamental Rights (hereafter ‘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.
2.As is well recognised, withdrawing from the EU does not mean withdrawing from the separate European Convention on Human Rights (ECHR). Although the Government still indicates that it is planning a British Bill of Rights, the Prime Minister, Rt Hon Theresa May MP, has indicated that she does not intend to propose a UK withdrawal from the ECHR in this Parliament as there is not a majority for it in the House of Commons.5 Nonetheless, the effects of Brexit may be at least as far-reaching on the UK’s human rights framework as the reported proposals for a new Bill of Rights.
3.Given the profound nature of these changes, we agreed to conduct a short inquiry into the potential impact on human rights of the UK’s proposed withdrawal from the European Union. 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 early 2017.
4.Our call for evidence, which was published on 15 September 2016, was open-ended as it was apparent from the outset that this inquiry would raise a substantial number of weighty issues. 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 employment rights, disability rights and discrimination).
5.In addition to these issues, we also asked what human rights obligations the UK Government should include in any new bilateral trade treaties which will replace EU Trade Treaties to which the UK is currently a party.
6.We received 59 written submissions in response to our call for evidence. A list of those who contributed is included at the back of this Report and all written submissions can be found on our website.
7.We held two evidence sessions in October and November 2016, taking evidence from Marina Wheeler QC, Professor Colm O’Cinneide (University College London), Professor Sionaidh Douglas-Scott (Queen Mary University, London), and Professor Graham Gee, (University of Sheffield and Policy Exchange) on 26 October and Rt Hon Sir Oliver Heald QC MP (Minister of State for Courts and Justice, Ministry of Justice) on 23 November. We are grateful to all those individuals and organisations who have engaged with this inquiry and provided us with useful evidence.
The Government’s engagement with our inquiry
8.In her initial letter of 12 October 2016, in response to our invitation to give evidence, the Lord Chancellor and Secretary of State for Justice, Rt Hon Elizabeth Truss MP, declined to attend and instead indicated that the Minister of State, Rt Hon Sir Oliver Heald MP QC, would appear in her place. 6 We are firmly of the view that the Secretary of State should have appeared. The fact that she chose not to is unacceptable. On 11 November 2016, almost two months after our initial correspondence7 and call for evidence, we received a letter from the Secretary of State for International Trade, Rt Hon Liam Fox MP.8 This provided an extremely limited response to our questions on international trade deals. Notably, the Government failed to provide us with any substantive written evidence.
9.While it is plain that the Government feels that it is not able to give what it describes as a “running commentary” on Brexit negotiations, it is regrettable that it is has not been able to set out any clear vision as to how it expects Brexit will impact the UK’s human rights framework. We expand on some of the issues that have caused us concern below and hope that the Government will respond positively and transparently to this Report.
The nature of the rights in question
10.The rights in question are extensive and can be usefully subdivided into three categories (as they were by the Divisional Court in the case of R (Miller) v Secretary of State for Exiting the European Union).9 These are: rights capable of replication in the law of the UK following Brexit (such as residence rights of EU nationals in the UK, the rights of workers, discrimination and equality rights); rights enjoyed by UK nationals in other Member States of the EU which might be retained following negotiation with the remaining EU Member States (such as the rights currently enjoyed pursuant to rights of free movement of persons, capital and establishment); and 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 law).
11.We have focused on the first two categories of rights and we have also considered the extent to which individual rights currently protected in EU law, particularly those relating to residence, are likely to be protected under the ECHR.
12.The two most relevant rights that apply under the ECHR are the right to respect for private and family life under Article 8, and the right of peaceful enjoyment of possessions under Article 1 of the First Protocol to the ECHR. On the latter of these points, the Minister was unable to provide us with what he himself acknowledged was “a very clear picture” of the Government’s assessment of the impact of Brexit on persons currently exercising free movement rights in the EU. He promised to write to us on this point and we will publish any correspondence as soon as it is received.10
13.We note that the question of ‘acquired rights’ (including EU residency rights and other EU citizenship rights) has also been considered by the House of Lords EU Committee. Its report, Brexit: acquired rights, was published on 14 December. The House of Commons Women and Equalities Committee is currently undertaking a continuing inquiry into the implications of leaving the EU on equalities legislation and policy in the UK. We have not sought to duplicate this work in our Report.
The EU Charter of Rights and other EU rights
14.The EU Charter is often confused with the ECHR, as the Court of Justice of the European Union (CJEU), based in Luxembourg, is with the European Court of Human Rights in Strasbourg (ECtHR). While both contain overlapping human rights provisions, they operate within separate legal frameworks. The Charter is an instrument of the EU. It is part of EU law and subject to the ultimate interpretation of the CJEU. The precise scope and application of the Charter has proved contentious and this issue is addressed in some detail in Chapter 3 of our Report.
15.Some Charter rights mirror rights, including many civil and political rights, found in the ECHR; others go beyond the ECHR, including some economic and social rights not found in the ECHR. Charter rights which go beyond the ECHR include, for example: the right to fair and just working conditions, the right to preventive healthcare, the right to good administration, the right to access to documents and a more wide ranging right to privacy.
16.While the rights contained within the Charter may be more extensive, the scope of the Charter is more restricted as it applies only to public bodies making decisions within the scope of EU law. As the House of Lords EU Committee has recognised:
The application of the EU Charter is narrower than that of the European Convention on Human Rights for two main reasons: not all of its provisions have direct effect, and so they cannot be relied on directly by individuals in national courts; and it applies to Member States “only when they are implementing Union law”.11
17.Finally, the CJEU is responsible for interpreting all EU law, not just the EU Charter. Individuals have limited access to the CJEU. It is not, as such, a human rights court. However, judgments of the CJEU are legally binding on all 28 EU Member States, and carry more powerful enforcement mechanisms. Moreover, where a national court in the UK finds that national legislation cannot be interpreted as compatible with the Charter, under the European Communities Act 1972 it can disapply the law itself.12
The Government’s approach to Brexit and human rights
18.We asked the Minister of State, Sir Oliver Heald MP, what the Government saw as the most significant human rights issues that were likely to arise upon Brexit. He responded that “the whole body of European legislation will be discussed in the negotiations and no doubt issues will arise.”13
19.When pressed on the fact that the UK’s human rights framework was not what was up for discussion as part of the negotiations with the remaining EU Member States (and informed that we were only asking him what he saw as the most significant human rights issues that will arise when Britain exits the EU), he said:
If you look at the overall body of law we are talking about, you have national, domestic laws that protect rights along with some European laws which have acquired rights within them, and then of course you have the ECHR with its own architecture. All of those have rights within them. In the course of the negotiations about Brexit, various European laws will no doubt be discussed and our negotiating position—which I cannot reveal today—will inform part of what we are asking for. But what remains of the rights set out in the body of European law will be determined by the negotiations.14
20.When questioned further on this point, he observed that:
Clearly, it is important that British citizens should have the rights that are needed and in so far as negotiations reveal that an area would require domestic legislation, obviously that is something the Government would have to consider.15
21.The Government seemed unacceptably reluctant to discuss the issue of human rights after Brexit. The Minister of State responsible for human rights was either 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.
22.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 is prepared to diminish such protections significantly, it is difficult to imagine why it considers that this should be a matter for negotiation and how this would be negotiated reciprocally with the remaining EU Member States.
The scope of our Report
23.The remainder of this report is in three parts. Chapter Two sets out our conclusions on residence rights of UK and EU nationals following Brexit. We also consider the protections that might be offered under Article 8 of the ECHR if no agreement can be reached.
24.Chapter Three explores some of the other human rights which the Government will have to address, most notably those that are currently protected by directives and regulations under EU law and under the Charter. We also consider the Government’s proposed ‘Great Repeal Bill’ and the safeguards which may prove necessary to ensure that rights are not diluted post-Brexit without adequate parliamentary scrutiny.
25.Finally, Chapter Four sets out our preliminary views on the question of human rights contained in trade agreements after Brexit.
4 The protection of fundamental rights was not explicitly included in the founding Treaties of the European Communities, which contained only a small number of articles that could have had a direct bearing on the protection of the rights of individuals. An explicit reference to fundamental rights at Treaty level appeared approximately 30 years later, with the entry into force of the Maastricht Treaty (1993). Since the entry into force of the Amsterdam Treaty (1999), and notably the Lisbon Treaty (2009), protecting fundamental rights is now a founding element of the European Union. Examples of fundamental rights included (but was not limited to) the right to protection of human dignity and personal integrity; expression, equality before the law, the principle of ‘good administration’, and environmental rights. The Charter of Fundamental Rights, which is divided into six titles organised to reflect the importance of EU principles (namely: Dignity; Freedoms; Equality; Solidarity; Citizens’ Rights and Justice) was designed to consolidate the fundamental rights that already existed under EU law. For more detail, see: http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/554168/EPRS_IDA(2015)554168_EN.pdf
5 See: e.g. May takes aim at European Convention on Human Rights, Financial Times, 4 October 2016
6 Letter from Rt Hon Elizabeth Truss MP, Lord Chancellor & Secretary of State for Justice, to the Chair of the Committee, regarding the oral evidence session, dated 12 October 2016.
7 Letter from Rt Hon Harriet Harman MP, Chair of the Joint Committee on Human Rights, to the Secretary of State for International Trade, regarding inquiry into the implications for human rights of the UK’s planned withdrawal from the European Union, dated 13 September 2016.
8 Letter from Rt Hon Liam Fox MP, Secretary of State for International Trade, to the Chair of the Committee, regarding the announcement of a new inquiry into the implications for human rights of the UK’s planned withdrawal from the European Union, dated 11 November 2016.
9 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)
11 House of Lords, The UK, the EU and a British Bill of Rights, Twelfth Report of the European Union Committee, Session 2015–16, HL Paper 139, para 71
16 December 2016