104.Clause 5(4) provides, “the Charter of Fundamental Rights is not part of domestic law on or after exit day.” The explanatory notes state:
“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. References to the Charter in the domestic and CJEU case law which is being retained, are to be read as if they referred to the corresponding fundamental rights. Given that the Charter did not create any new rights, subsection (5) makes clear that, whilst the Charter will not form part of domestic law after exit, this does not remove any underlying fundamental rights or principles which exist, and EU law which is converted will continue to be interpreted in light of those underlying rights and principles.”
105.We do not comment on the content or merits of the Charter rights, as this is best reserved for the Joint Committee on Human Rights. However, we address below the constitutional questions arising from clause 5(4), primarily whether removing the Charter changes the legal landscape and, if so, what consequences follow.
106.Sir Keir Starmer QC MP argued that the removal of the Charter would “take away rights and protections.” He said that if no rights were being lost then it was a “completely pointless exercise … If you are not going to change the rights, do not just scatter them back to their sources.” He acknowledged that if the Charter was saved by the Bill “There would have to be modifications because some of the rights—voting for Members of the European Parliament, for example—would have to be either removed or modified.”
107.However, the Solicitor General told us that “the Charter itself is often misunderstood. It is not a free-standing set of rights; it applies to EU institutions and then it applies to Member States only where they act within the scope of EU law. So its own sphere is limited.” He said that “What matters to the person in the street is whether their rights are preserved” and that “The underlying principles and rights are preserved, so the outcome for the person in the street is a good one.”
108.Although clause 5(4) excludes the Charter from domestic law, clause 5(5) goes on to provide that clause 5(4) “does not affect the retention in domestic law … of any fundamental rights or principles which exist irrespective of the Charter.” A number of witnesses suggested that exactly which rights this includes was not clear.
109.The Law Society of Scotland recommended “the fundamental rights and principles which exist ‘irrespective of the Charter’ should be set out in the bill … it would be helpful if the Government could identify what are the fundamental rights or principles it considers are retained in domestic law and whether, or to what extent, they are included in the definition of ‘retained general principles of EU law’ in clause 6(7).” Lord Neuberger told us “I suspect that in Clause 5(5) the reference to ‘corresponding retained fundamental rights’ could well lead to litigation.”
110.Professor Alison Young said that it may be:
“difficult to separate the general principles from the Charter, particularly as the two develop symbiotically, with general principles deriving from the Charter and being relevant to the interpretation of the rights and principles found in the Charter. The Court of Justice of the European Union (CJEU) often refers to both the general principles and the Charter in support of the same human right. This may also result in greater uncertainty.”
111.The Chartered Institute of Taxation suggested that it would be “helpful to explicitly state what is not considered to be a general principle of EU law, particularly if it remains the position that full effect is not given to the general principles of EU law.”
112.This confusion is made more pertinent when read in light of paragraph 3 of schedule 1, which limits reliance on the general principles: “There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law.” However, as a result of an amendment to the Bill at report stage in the Commons, paragraph 27 of schedule 8 provides that this does not apply to any proceedings which begin within 3 months from exit day, as long as the challenge involves something that occurred before exit day and that does not seek the disapplication or quashing of an Act of Parliament. In effect, this provides a short transition period, post-exit day, for the commencement of litigation relating to the general principles of EU law.
113.Following committee stage on the Bill in the Commons, the Government published a right-by-right analysis of the Charter, which set out where Charter rights exist in other directly applicable EU law or domestic law. The Government set out in this analysis how the Charter rights and general principles would function post-exit:
“The Bill is retaining the general principles of EU law, as they have been recognised by the CJEU before exit day, for interpretative purposes. Furthermore, the Bill will retain pre-withdrawal CJEU case law which is relevant to the interpretation of retained EU law … The Government has made clear that we are willing to look again at some of the technical detail about how the Bill deals with the general principles of EU law … The rights landscape is complex and our approach is to seek to maximise certainty and minimise complexity and not remove any substantive rights that UK citizens currently enjoy.”
114.It also said that “retained EU law will need to be read consistently with the general principles of EU law (including those that constitute fundamental rights) where it is possible to do so, and broadly speaking [that] does not affect the current position as regards the pre exit case law of the CJEU … Principles codified in the Charter which are found in directives or in the Treaties may also be relevant for interpretative purposes.”
115.In light of the right-by-right analysis of the Charter, we asked whether this list of rights could be set out in the Bill itself. The Solicitor General said:
“The danger of putting a list in a schedule is that it becomes an exhaustive and final authoritative list, rather than something that is meant to be guidance. Again, if we try to do that, we are getting into the territory of fettering the discretion of the courts in a way that I think would be unhelpful.”
He concluded that “to the very greatest extent, the Charter does not add anything substantive to our law.”
116.We also heard concern that the removal of the Charter would weaken the remedies available to protect rights. Under the Charter, courts have the power to disapply domestic legislation in favour of fundamental rights, whereas under the Human Rights Act courts can issue only a declaration of incompatibility. As Lord Neuberger explained “the Charter applies only in relation to EU law, but … it is a stronger power. On the other hand, the power under section 3 of the Human Rights Act is not a long way from that. It enables judges to indulge in rather imaginative interpretation, to ensure that legislation complies with the human rights convention … [but] the Charter power is, as it were, more muscular.”
117.An example of the importance of the Charter of Fundamental Rights in this regard was provided in Benkharbouche where it was used by the Supreme Court independently of other provisions of EU law to disapply domestic law. Professor Young wrote:
“Schedule 1 to the Bill makes it clear that ‘there is no right of action in domestic law on or after exit day based on failure to comply with any of the general principles of EU law’ … This prevents claims of the nature found in Benkharbouche, where the Charter was used independently from other provisions of EU law. … But claimants will still be able to rely on general principles of EU law, which protect fundamental rights. They will not be able to use these general principles on their own, but they will still be used to interpret EU-derived law, which then in turn could be used to disapply legislation. For the claimants in Benkharbouche, the stronger remedy currently found under EU law for protection of fundamental rights will disappear. They would only be able to obtain a declaration of incompatibility under section 4 HRA arising from the breach of article 6 ECHR. This, in turn, is not available to tribunals, but only to the high court and higher courts.”
118.Professor Mullen et. al. argued that the qualifications on the applicability of the general principles set out in the Bill “effectively limit the role of the general principles to that of acting as guides to the interpretation of statutes and other rules of law which count as EU-derived law for purposes of the Bill.” Professor Merris Amos argued, “In order to retain existing levels of rights protection, it must be possible to challenge converted retained EU law in UK courts in the same way that it would be possible were this law retained EU law (as defined in the Withdrawal Bill) or if the UK were still a member of the EU.”
119.The primary purpose of this Bill is to maintain legal continuity and promote legal certainty by retaining existing EU law as part of our law, while conferring powers on ministers to amend the retained EU law. If, as the Government suggests, the Charter of Fundamental Rights adds nothing to the content of EU law which is being retained, we do not understand why an exception needs to be made for it. If, however, the Charter does add value, then legal continuity suggests that the Bill should not make substantive changes to the law which applies immediately after exit day.
120.The effects of excluding the Charter rights, retaining the “general principles”, but excluding rights of action based on them, are unclear. This risks causing legal confusion in a context where clarity is needed. We look forward to the views of the Joint Committee on Human Rights on the implications for rights of excluding the Charter of Fundamental Rights in the Bill. We recommend that the Government provides greater clarity on how the Bill deals with the general principles and how they will operate post-Brexit.
121.A further point is that the Francovich rule will no longer apply in domestic law after exit day. The rule allows individuals to claim compensation if they are affected by a government’s failure to comply with EU law. The effect of the Bill is that there will be no right of redress against the Government for breach of an EU directive after exit day.
122.Professor Phil Syrpis told us:
“The second express exclusion in schedule 1 relates to the right to damages in accordance with the principle in Francovich. Such a right will not be available post-exit. Presumably, other EU law principles (for example, the rule in Marleasing, that national law should be interpreted ‘as far as possible’ in accordance with EU law principles) therefore survive. The express exclusions, taken together, serve to make the task of the UK courts more difficult. They need to make distinctions not only between the pre- and post-Brexit case law of the CJEU, but also between parts of the EU law acquis, some of which is converted, some of which is not. The choices they make are, to put it mildly, likely to be politically salient, and there is little in the Bill to guide them.”
123.During committee stage of the Bill in the House of Commons, the Solicitor General said that the Government would “consider further” whether more detailed transitional arrangements were required. We recommend that the Government provides the House of Lords with an updated view about the applicability of the Francovich principle and any transitional arrangements regarding it.
44 , paras 103–104
45 (Sir Keir Starmer QC MP)
46 (Robert Buckland QC MP)
48 For example, written evidence from Professor Tom Mullen, University of Glasgow, Dr Chris McCorkindale, University of Strathclyde, and Professor Aileen McHarg, University of Strathclyde (), Professor Phil Syrpis, University of Bristol Law School () and the Public Law Project ().
49 Written evidence from the Law Society of Scotland ()
50 (Lord Neuberger of Abbotsbury)
51 Written evidence from Professor Alison Young, University of Oxford ()
52 Written evidence from the Chartered Institute of Taxation ()
54 HM Government, Charter of Fundamental Rights of the EU: Right by Right Analysis, 5 December 2017, para 16: [accessed 24 January 2018]
55 Ibid., para 16
56 Ibid., paras 18 and 19
57 (Robert Buckland QC MP)
59 See (Sir Keir Starmer QC MP) and written evidence from the Public Law Project () and BrexitLawNI ().
60 (Lord Neuberger of Abbotsbury)
61 Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) 
62 Alison Young, Benkharbouche and the Future of Disapplication, UK Constitutional Law Association, 24 October 2017: [accessed 24 January 2018]
63 Written evidence from Professor Tom Mullen, University of Glasgow, Dr Chris McCorkindale, University of Strathclyde, and Professor Aileen McHarg, University of Strathclyde ()
64 Written evidence from Professor Merris Amos, Queen Mary University of London ()
65 Professor Phil Syrpis, University of Bristol Law School ()
66 HC Deb, 21 November 2017,