Expert View

Case for nixing Charter of Fundamental Rights misleading

by Jonathan Cooper | 20.11.2017

Jonathan Cooper is a barrister specialising in human rights, especially the EU Charter of Fundamental Rights, at Doughty Street Chambers.

The government’s explanation for excluding the EU Charter of Fundamental Rights from UK law on Brexit day is misleading. It justified the decision, which will become law if its EU Withdrawal Bill now going through parliament is not amended, 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, as provided for in this Bill.”

It is disingenuous to say that the Charter did not create new rights. By drawing together the rights in the Charter from many disparate sources a number of essential and core issues were recognised as rights. As well as identifying new issues as requiring protection as human rights which had previously not attained that status (such as the right to protection of personal data), the Charter has expanded and developed more established rights (for example, the right to media pluralism) and it has recognised new rights (academic freedom, for instance, and the right to conscientious objection).

It is also misleading to say that EU fundamental rights “principles” will continue to apply, because they cannot be enforced. Under schedule 1 of the Bill, “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.” That schedule also prevents courts from quashing any law or action “because it is incompatible with any of the general principles of EU law.” General principles are therefore rendered nugatory. Damages are also disallowed.

The simplest mechanism to retain the same level of human rights protection post Brexit that we currently enjoy is to retain the Charter. If retained, to ensure consistency, the Charter needs to be given the same status as the European Convention of Human Rights (ECHR) in UK law in relation to retained EU law.

The 50 rights contained in the Charter go beyond the framework for human rights protection in the UK. And even though, as the Bill’s explanations acknowledge, there are rights in the Charter that are contained in the European Convention on Human Rights (ECHR), a dozen or so of which are part of UK law, the majority of the rights in the Charter are novel in a UK context (such as the right to human dignity).

As the Bill’s explanations correctly note, the Charter does draw upon the wider UN human rights framework but the overwhelming majority of those rights are not enforceable in the UK. This contrasts with the Charter which is justiciable in the UK when the issues in dispute are within the scope of EU law. As is clear from the EU Withdrawal Bill itself, the scope of EU law is wide and extensive and currently the Charter applies whenever EU law is engaged.

MPs have a chance to amend the Bill this week to ensure that the Charter is carried over into UK if we quit the bloc. They should do so.

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    Edited by Hugo Dixon