3The Charter of Fundamental Rights and other EU rights and the ‘Great Repeal Bill’
Background
54.The EU Charter of Fundamental Rights was proclaimed in 2000, but was not given legal status until 2007, by the Treaty of Lisbon.39 This stated that it had equal legal status with the EU Treaties. The Charter became legally binding on the EU with the entry into force of the Treaty of Lisbon, in December 2009. Its rights now constitute general principles of EU law. The Charter consolidates fundamental rights that already existed under EU law and was incorporated into our national law through the European Communities Act 1972.
55.The status of the Charter in EU law and its effects in UK law have been a matter of debate since it was given legal status. The UK Government had negotiated a Treaty Protocol (Protocol 30) with a view to clarifying its effect in the UK, but many believed initially that this Protocol represented an exemption or opt-out from the Charter.
56.The Charter’s field of application is limited. It applies to (i) all actions of the EU institutions and its agencies, and (ii) to Member States when they “implement” EU law.40
57.By contrast with the European Court of Human Rights, where individuals have the rights to bring cases to it concerning the ECHR, the CJEU is not a court of individual petition. This restricts the right of access by individuals. Equally, while all the rights contained in the ECHR may be enforced against the UK Government by individuals in national courts via the Human Rights Act 1998, some of the rights in the Charter are defined as ‘principles’. This includes certain economic and social rights which are not directly enforceable by individuals in national courts.
58.In addition to the rights contained in the Charter, new rights may also be introduced by way of EU directives and regulations. The primacy of EU law means that domestic laws implementing EU rights-enhancing directives cannot be removed whilst the UK remains bound by EU law. As the Equality and Human Rights Commission (EHRC) has noted:
There is also a substantial body of directly applicable EU law including rights under the Treaties, Regulations and the Charter which have not been incorporated into British law. Currently these laws [ … ] are a significant source of directly enforceable human rights law which the courts can apply when considering a matter within the scope of EU law, such as some aspects of workers’ rights.41
59.Judgments of the CJEU are legally binding on all 28 EU Member States. Due to the supremacy of EU law, they carry more powerful enforcement mechanisms. Moreover, where a national court in the UK finds that national legislation cannot be interpreted compatibly with the Charter, under the European Communities Act 1972 it can disapply the law itself. An example of this can be found in the case of Benkharbouche v Embassy of the Republic of Sudan42 where the Court of Appeal disapplied the law on state immunity, which prevented the claimants from accessing the courts to enforce their employment rights, breaching fair trial rights under the Charter.
60.While rights under the Charter have stronger enforcement mechanisms, it is also worth acknowledging that they have a narrower reach than the ECHR. Professor Gordon Anthony, Professor of Public Law at Queen’s University Belfast, was recently quoted in the European Union Committee’s report The UK, the EU and a British Bill of Rights on this issue. He said:
The primary strength of the ECHR under the Human Rights Act is that it has a much broader reach than the EU Charter. Under Section 6 of the Human Rights Act [and Section 24 of the Northern Ireland Act] whenever public bodies make any decision they are bound by the provisions of the Convention. That is not the case with the Charter. The Charter applies only whenever public bodies make decisions within the realm of EU law.43
The status of the Charter
61.It is broadly accepted that the UK signed up to the Charter on the basis that it created no new rights that were not already protected by existing EU and UK law, and that it was a political declaration of such existing rights rather than a justiciable set of rights capable of judicial enforcement.44 However, Lord Goldsmith QC, the Attorney General when the Charter was being negotiated, maintained the Protocol did not provide the UK with a Charter opt-out, but was “an explicit confirmation that in relation to the UK and UK law, the limitations and constraints on what it is and what it will do will be strictly observed”.45
62.Concerns have subsequently arisen about the Charter becoming justiciable in both the CJEU and UK courts, the growing scope for its interpretive development by judges and its legal enforcement. The Grand Chamber of the CJEU gave judgment in the cases of Saeedi/NS and ME46 (relating to the transfer of asylum seekers under the Dublin Convention) on 21 December 2011. It concluded that the UK was not exempted from complying with Charter provisions. The relevant section of the judgment stated:
119) [ … ] Protocol (No 30) does not call into question the applicability of the Charter in the United Kingdom or in Poland, a position which is confirmed by the recitals in the preamble to that protocol. Thus, according to the third recital in the preamble to Protocol (No 30), Article 6 TEU requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that article. In addition, according to the sixth recital in the preamble to that protocol, the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles.
120) In those circumstances, Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.47
63.In spite of this, Marina Wheeler QC has argued that the EU Charter is “being used to fashion new rights” and that this was “objectionable” for a variety of reasons:
The ECHR already provides a comprehensive, justiciable body of rights developed by case law. To create a new, parallel body of rights is incoherent, excessively onerous and a recipe for legal uncertainty. Given the direct effect of EU law and the principle of supremacy which allows inconsistent national law to be set aside, judgments of the CJEU have profound and immediate effects on the domestic legal order: unlike Strasbourg judgments. While the Court in Strasbourg is arguably showing greater restraint–granting signatory states a margin of appreciation–Luxembourg appears to be moving in the opposite direction. Its apparent institutional rivalry with Strasbourg might, if unchecked, herald an era of competitive judicial law-making.48
64.Doubts about the Charter were also expressed by eight senior academics who submitted a joint paper on behalf of Policy Exchange’s Judicial Power Project. They contended that:
Brexit will end the application of the EU Charter of Fundamental Rights in the UK. This is a welcome development. As the history of its haphazard drafting and eventual adoption makes clear, the Charter was not at first envisaged as forming a set of justiciable standards. The UK accepted its transformation into such, despite significant misgivings, with the ratification of the Lisbon Treaty including Protocol 30 which was ostensibly designed to secure the UK’s understanding of the Charter’s limited reach. That protocol has been a dead letter since inception, rendering hollow the Government’s assurances to Parliament about the Charter’s significance. Predictably, the Charter has not been confined to constraining action on the part of the organs of the EU, but has been invoked as a wider licence for the extension of judicial authority, especially that of the CJEU, over political authorities. Charter adjudication is, like much international human rights law, largely inimical both to the rule of law and to democratic self-government.49
65.The academics also questioned the necessity for supra-national rights more generally. They argued that the assumption that supra-national limits are required “fails to grasp the capacity of British parliamentary democracy to make suitable provision for rights protection [ … ] in an open, fair and reasoned way.” They gave the examples of Australia, Canada and New Zealand as Westminster style democracies which “arguably protect rights at least as effectively as any member state of the EU.”50
66.Proponents of the Charter have argued that in practice the Charter has provided new remedies and stronger protection of human rights guaranteed by EU law. The Human Rights Centre at the University of Essex stated:
Brexit would eliminate the power of UK Courts to disapply UK legislation that contravene the Charter and as such is incompatible with EU law. It could also expose rights that had enjoyed greater protection by virtue of EU law to a weakening political commitment to such standards.51
An example of the additional rights provided by the Charter: Data rights and privacy
67.At this point, it is worth highlighting of the sort of issue that could arise post-Brexit to demonstrate why this is important. The case of data protection rights and privacy is a good example of the sort of additional rights which might be lost if EU law were no longer applicable. We have received evidence on this issue from the EHRC, the Information Commissioner’s Office and Amnesty International UK. The EHRC noted that:
Recent EU case law has led to increased protection of human rights in the context of data protection and state surveillance. For example, in Schrems,52 the CJEU held that an earlier EU Commission decision, that the US provided an adequate level of protection of personal data transferred to it, was invalid. In Google Spain53 the CJEU held that Google must consider requests by an individual to remove links to web pages resulting from a search on their name. In the domestic courts, the Court of Appeal recently applied the EU Charter to overrule a provision of the DPA which was held to be incompatible with EU law.54 In that case, Google had collected private information about the Claimants’ internet usage which enabled it to offer information to advertisers. The Court of Appeal ruled that the Claimants could recover damages for nonmaterial loss and a provision of the DPA which prevented them from doing so was to be dis-applied.
State surveillance is a particularly intrusive interference in the right to privacy and is an area in which the case law of both the CJEU has had a significant impact. In Digital Rights Ireland,55 the CJEU held that EU data retention Directive 2006/24, which required telecommunications service providers to retain communications data in order to combat crime, was not compatible with Articles 7 and 8 of the Charter. The court noted it applied to all means of electronic communication, thereby affecting the fundamental rights of practically the entire European population, and it was not limited to what was strictly necessary. The court held that where personal data is collected in order to prevent or detect crime, strict safeguards are required to protect individual rights.56
68.The Information Commissioner, Elizabeth Denham, has said that a specific articulated right to data protection will be lost if the Charter is no longer taken into account, and has stated that she considers “that it is important that the specific rights of individuals in any future data protection legislation are linked to, and based on fundamental human rights to privacy.” She argued that:
It would not be helpful if the effect of removing Charter rights was a weakening of the linkage to human rights. Following withdrawal from the EU the UK will continue to require a progressive and robust data protection regime which safeguards individuals’ fundamental rights while facilitating the increasingly sophisticated use of personal data by business and government as well as cross-border data flows.57
69.This point was reiterated by Amnesty International. They argued that the “most obvious way in which EU law has helped protect rights domestically is perhaps the added protection which the EU Charter of Fundamental Rights gives over and above the safety net provided by the European Convention of Human Rights.”58
70.In his oral evidence, Professor Colm O’Cinneide noted that the Charter had “had a considerable impact” on the law relating to data protection. He said that this was “controversial and disputed”, but could continue to shape UK law in the future as he took the view that data processors were likely to wish to comply with CJEU jurisprudence.59 Amnesty International warned that “it is very difficult to predict what would happen in the case of any future conflict between UK and European law should there be a move apart on privacy and data protection standards post-Brexit.”60
71.A new Data Protection Regulation is due to come into force in 2018 and the UK is currently bound to implement the new EU Data Protection Directive in 2018 and so data protection and privacy rights may well prove an early test of the UK’s approach to rights protection post-Brexit.
A brief comment on other EU law rights
72.This short report has only engaged in detail with a small number of the rights protected under EU law. While we will no doubt return to these questions in 2017, it is important to highlight the fact that many other fundamental rights are likely to be in question. To take just one example, in the field of equality law, Professor O’Cinneide has described EU law as “the engine that has hauled the development of UK anti-discrimination law along in its wake”. He has argued that, without its influence, “British legal standards would be much weaker than they currently are.”61 We expect that the Women and Equalities Committee may well highlight further concerns in this area during its inquiry into ‘Ensuring strong equalities legislation after EU exit’.62
73.Other examples that were brought to our attention include trafficking in human beings, environmental protections63 and improved accessibility and safety standards for disabled people.64
The ‘Great Repeal Bill’
74.As one of its few substantive public announcements on its policy on Brexit, the Government has indicated that it proposes to introduce a Bill in the 2017–18 Parliamentary session which would repeal the European Communities Act 1972 and end the authority of EU law at the date of Brexit. The Secretary of State for Exiting the EU has said that:
The Great Repeal Act will convert existing EU law into domestic law, wherever practical. That will provide for a calm and orderly exit and give as much certainty as possible to employers, investors, consumers and workers. And we have been clear, UK employment law already goes further than EU law in many areas - and this Government will do nothing to undermine those rights in the workplace.65
75.As we have already seen, EU law currently underpins a great many fundamental rights. It is not clear whether, following the passage of the Repeal Bill, the Government intends to remove any fundamental rights which UK citizens currently possess under EU law. This is plainly a question of central importance to our inquiry.
76.The Prime Minister appears to have committed to guarantee existing workers’ rights66; but she has not made the same commitment in respect of other rights protected under EU law. It is not clear to us why the rights of workers should be treated any differently to other fundamental rights. We pursued this question with the Minister. He was far from clear that even workers’ rights under EU law would be protected, noting only that:
If you are a person in work and you have a contract, you have rights that the trade union movement has been keen to uphold for a century or more. They cannot be taken away from someone. They are contractual rights. Workers’ rights are workers’ rights.67
77.When pressed on what this meant (and whether it implied that only those already in work would have their rights guaranteed), he responded:
Nobody is going to lose any of the rights they have [ … ] I am not aware of any suggestion that workers’ rights are going to be affected. Certainly under our law you cannot take rights away from workers.68
Parliamentary accountability
78.The Bingham Centre for the Rule of Law raised with us a concern that the potentially “enormous task of Brexit law reform” would give rise to a
temptation to delegate large swathes of legislative power to the Executive by passing skeletal primary legislation that includes broadly drafted provisions that delegate law making to the Executive, sometimes using Henry VIII clauses.69
79.Henry VIII clauses take their name from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation. The House of Lords Constitution Committee has considered the issue of Henry VIII powers in a number of reports and has argued that they should be limited so that they cannot be used to alter constitutional arrangements, should be framed as narrowly as possible and that where they relate to a constitutionally sensitive subject-matter should use a ‘super-affirmative’ parliamentary procedure.70 That Committee has also contended that delegated legislation should not be used to create regulations that will have a major impact on the individual’s right to respect for private life. 71
80.Professor Douglas-Scott has argued that the use of a Henry VIII clause in these circumstances would be extremely problematic. She has suggested that:
Unfortunately, Henry VIII clauses are becoming a too familiar part of UK legislation generally. Yet such a measure would be a profoundly un-parliamentary and undemocratic way to repeal or amend former EU law, and hardly a means for Parliament to ‘take back control,’ given that Parliament has a fairly minimal role in secondary legislation [ … ] The use of Henry VIII clauses to repeal EU law is particularly repugnant, given that EU law has created vast networks of rights and obligations, whose subject matter–e.g. social policy, discrimination law, or fundamental rights–covers many matters central to individual liberty, and their repeal or amendment, even by means of primary legislation, would be highly controversial.72
81.This argument was reiterated in oral evidence. Professor Graham Gee noted the temptation for Ministers to include very wide Henry VIII clauses and argued “that is a temptation that should be resisted. Overly wide Henry VIII clauses in skeletal legislation would give Ministers too much power.”73 The Secretary of State for Exiting the EU has, thus far, only given a commitment that the Repeal Bill will be presented to the House during the two-year period after Article 50 has been triggered and that
there will be a series of consequential legislative measures, some primary, some secondary, and on every measure the House will have a vote and say.74
82.There is also further, practical, reason that the Government should avoid the use of secondary legislation to interfere with fundamental rights: unlike primary legislation, secondary legislation can be quashed or disapplied by the courts on a number of grounds including vires and compatibility with the ECHR.
Rights post-Brexit
83.Even if current EU laws are preserved by the Repeal Bill, this would not apply to developments in the EU after the UK’s departure. This would apply both in relation to future EU directives and regulations, but also the existing and future case law of the CJEU. Professor Gee described the question of the force of the jurisprudence of the Luxembourg court post-Brexit as a “key issue that will have to be addressed up front.”75 Professor O’Cinneide expanded on this point. He told us that:
UK courts will, I presume, post withdrawal be taking the final decision as to the status of Charter judgments or other decisions of the Court of Justice, but it will be interesting to see what they make of established precedent and obiter, perhaps influential persuasive judgments still coming from Luxembourg in relation to some of the originating instruments of key elements of UK law.76
84.It is clear that the removal of the European Communities Act 1972 from the statute book will mean that, post-Brexit, the UK courts will not be obliged to follow the judgments of the CJEU, nor will they be able to refer questions of law to the CJEU. The EHRC advised us that the Government should issue “statutory guidance on the status of existing case law and future CJEU decisions for domestic legal concepts which are derived from, or reflect similar concepts in, EU law.”77 It warned that if this were not done, it could lead to the re-litigation of settled principles of EU law.
85.A further issue is the extent to which the UK will implement any future human rights legislation which would have applied in the UK had it not voted to leave the EU,78 but may not be introduced into domestic law in the UK following Brexit. The EHRC provided us with examples of several relevant initiatives. In addition to the proposed Data Protection Regulation, it also noted a current consultation on strengthening provisions relating to parental leave and a proposed European Accessibility Act which would benefit disabled people by providing common rules on accessibility.79
86.It is evident from the examples above that, as EU law develops, UK law on fundamental rights could diverge from it. The Minister gave us no commitment that the Government would monitor or take account of EU law developments.80
87.This may prove significant: in terms of historical legal developments Professor O’Cinneide told us that there were “key elements in anti-discrimination law, such as the legislative prohibition on religious discrimination, sexual orientation discrimination, and discrimination on the basis of age in employment, which were only introduced in this jurisdiction because of the requirements of an EU directive.”81
Rights in Scotland, Wales and Northern Ireland
88.A further, 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 seek the views of representatives of the devolved Governments on this issue, which has formed the basis of submissions before the Supreme Court in the case of R (on the application of Miller & Dos Santos) v Secretary of State for Exiting the European Union).82
89.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.
Gibraltar
90.A final issue is the question of rights in a major British Overseas Territory which is currently in the EU: Gibraltar. This matter falls outside our direct remit. We note that the House of Lords European Union Committee is conducting an inquiry into the implications of Brexit for Gibraltar. We hope that the European Union Committee (and the Foreign Affairs and Exiting the European Union Committee in the House of Commons) will address the situation.
Conclusions
91.We recommend that the Government commit to publishing its proposed ‘Great Repeal Bill’ in draft, to ensure that it receives adequate consideration in Parliament, preferably by a Joint Committee. We also take the view that prior to publishing the draft legislation, and before triggering Article 50 of the Treaty on the European Union, that the Government should set out in detail what approach it expects to take in respect of all fundamental rights currently guaranteed under EU law.
92.Assuming that the Repeal Bill safeguards existing rights under EU law, this would not stop a future Parliament 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 amendment. Under the UK constitution, outside the auspices of EU law, there is no way to entrench fundamental rights. However, the Government must resist the temptation to allow laws relating to fundamental rights to be repealed by secondary legislation for reasons of expediency. If rights are to be changed there should be an opportunity for both Houses to seek both to amend and to vote on such changes.
93.We also note that even if current EU laws are preserved by the Repeal Bill, this would not allow for new developments in EU law to be implemented automatically. This would apply both in relation to future EU regulations and directives on rights and case law of the Court of Justice of the European Union. The Government should issue detailed statutory guidance on the status of existing case law. It will also have to determine how it will approach the status of future EU law and CJEU decisions to ensure that it is not isolated from developments emanating from the EU. The question of how fundamental rights will be enforced going forward will also be of central importance.
39 For further background, see: http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm
42 Benkharbouche v Embassy of the Republic of Sudan [2015] EWCA Civ 33. For a summary of the case see: https://www.judiciary.gov.uk/wp-content/uploads/2015/02/benkarbouche-summary.pdf
43 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, page 17
44 For further details, see, e.g., European Scrutiny Committee, Forty-Third Report of Session 2013–14, The application of the EU Charter of fundamental rights: a state of confusion, HC 979, and House of Lords, The Treaty of Lisbon: an impact assessment, Tenth Report of the European Union Committee, Session 2007–8, HL Paper 62-I
45 Speech to British Institute of International and Comparative Law, 15 January 2008
46 NS (European Union law) [2011] EUECJ C-411/10 (21 December 2011)
47 NS (European Union law) [2011] EUECJ C-411/10 (21 December 2011). For more on this issue, see: e.g. Piet Eeckhout, The Real Record of the EU Charter of Fundamental Rights, UK Constitutional Law Association, 6 May 2016.
48 Marina Wheeler, Cavalier with our Constitution: a Charter too far, UK Human Rights Blog, 9 February 2016
52 Schrems v Data Protection Commissioner, case C-362/14
53 Google Spain SL v AEPD, case C-131/12
55 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and others,
case C-293/12
61 Colm O’Cinneide, Equality rights in a post-Brexit United Kingdom, 29 July 2016
62 House of Commons, Women and Equalities Committee, Ensuring strong equalities legislation after EU exit inquiry
63 See also: Environmental Audit Committee, Third Report of Session 2015–16, EU and UK environmental policy, HC 537
64 See: e.g. Equality and Human Rights Commission (HBRE0058) and Angela Patrick, Mapping the Great Repeal: European Union Law and the Protection of Human Rights, The Thomas Paine Initiative, October 2016
66 See: e.g. Speech at Conservative Party Conference, 5 October 2016
69 Bingham Centre for the Rule of Law (HBR0035), para 35. A distinguishing feature of Henry VIII clauses is that they give the Executive power to make delegated legislation that includes provisions amending or repealing primary legislation.
70 The Super Affirmative Procedure has been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate for any secondary legislation relative to normal secondary legislation, for instance, for scrutiny of certain items of delegated legislation made or proposed to be made under Henry VIII powers. It provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. However, though use of a ‘super-affirmative’ procedure may require the Government to explain or justify a provision, following scrutiny the instrument is then subject to an affirmative procedure (and unamendable at this stage). For more see: Erskine May, Parliamentary Practice, 24th Edition, (Lexis Nexis, 2011), pp 677–8.
71 J. Simson Caird, D. Oliver and R. Hazell, The Constitutional Standards of the House of Lords Select Committee on the Constitution, 2nd Edition, The Constitution Unit and the Constitution Society, 2015, pp 7–8.
72 Sionaidh Douglas-Scott, The ‘Great Repeal Bill’: Constitutional Chaos and Constitutional Crisis?, UK Constitutional Law Association, 10 October 2016
77 Equality and Human Rights Commission (HBRE0058). We assume such guidance would be issued under the proposed Repeal Act
78 Currently, under the European Communities Act 1972, EU Regulations are directly applicable in national law without the need for domestic implementing legislation. The UK must draw up legislation in order to conform with EU Directives within a specified time in order for them to be transposed into national law.
82 See also McCord’s Application [2016] NIQB 85
16 December 2016