At the end of January, the Joint Committee on Human Rights published a commentary on the implications of aspects of the European Union (Withdrawal) Bill. This powerfully illustrates the potential “complexity of the post-exit human rights landscape” and jars with the Government’s stated intention that certain substantive rights will be no weaker after exit day.

On 18 January 2018, the European Union (Withdrawal) Bill began its passage through the House of Lords. The Bill contains the following sub-clauses:

5(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day.

5(5) Subsection (4) does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).

The Explanatory Notes to these sub-clauses describe their effects as follows:

“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…”

“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…”

In its new report, the Joint Committee on Human Rights published a commentary subjecting these claims to rigorous scrutiny. The commentary suggests that, in reality, sub-clauses 5(4) and 5(5) as drafted “may result in legal uncertainty and a diminution of rights and remedies”. The opaque language of the Bill, coupled with the complex reality of what it is to rely on the transfer of “underlying rights and principles” into UK law (rather than on transfer of the Charter itself), leave the legal position unclear and unpredictable. This uncertainty “is likely to undermine the protection of rights” and, as the commentary caustically observes, the “effect of clauses 5(4) and 5(5) would appear to be contrary to the Government’s intent”.

The main contribution of the commentary is to anatomise precisely what “fundamental rights and principles” underlie the Charter, and then, given their composition, to review what it would mean to rely on them in the Charter’s place. The five ‘original sources’ of Charter rights are identified as:

(a) the European Convention on Human Rights (“ECHR”);

(b) the general principles of EU law;

(c) EU legislation;

(d) international conventions; and

(e) national constitutions.

Direct legal reliance on each of these would present inconsistencies as compared with the position under the Charter. For example, the ECHR may be relied upon directly before domestic courts so long as the Human Rights Act 1998 remains in place. The standing of individuals to enforce their ECHR rights is, however, narrower than the standing of individuals to enforce Charter rights (only ‘victims’ can bring claims, rather than anyone with a ‘sufficient interest’). The available remedies are also weaker (a declaration that legislation is incompatible with fundamental rights, rather than an order that legislation be disapplied or quashed). Another example is that Charter rights derived from international treaties are enforceable before domestic courts, whereas the treaties themselves may not confer domestically enforceable rights.

The commentary concludes by enumerating key types of divergence between the current position under the Charter and the future position envisaged by sub-clauses 5(4) and 5(5). This brings home what a rugged landscape lawyers and their clients may need to traverse after exit day. To illustrate:

  • Some rights may be imported into or reflected in domestic legislation, but not necessarily comprehensively. For example the rights in the current Data Protection Bill may be narrower than, or subject to significant exemptions as against, those under the Charter.
  • Some rights will become unenforceable before the domestic courts, for example the right to human dignity and some rights based wholly or partly on provisions of the ECHR or other international treaties that have not been incorporated into domestic law. These include rights derived from the UN Convention on the Rights of the Child.

Finally, the commentary criticises the Government’s failure to carry out a comprehensive analysis of the human rights implications of its political decision to exclude the Charter from domestic law after exit day until nearly five months after the Bill was published. Brexit watchers of all stripes ought to be troubled that bold assertions about continuity after exit day were made which have not stood up well to scrutiny. It is not unfair to ask how this could have happened.

Together with the report of the House of Lords Select Committee on the Constitution (here), the Joint Committee report clearly demonstrates the value of pre-legislative scrutiny. The proposed Act will have cross-cutting effects in highly technical areas, with a huge potential for unintended consequences. Now the implications of sub-clauses 5(4) and 5(5) are better understood, we must hope the necessary time and political will are available for legislators to take this more realistic picture of potentially opaque, unpredictable or diminished human rights protection into account.