What are the human rights implications of Brexit?
15 September 2016
The Joint Committee on Human Rights is launching an inquiry into the human rights implications of Brexit.
Three issues are of particular interest to the Committee:
Privacy and family life
What is the potential impact of Article 8 of the European Convention on Human Rights, which protects privacy and family life, on EU nationals living in the UK and UK nationals living in other EU Member states in terms of their right to stay? For example, if current residence rights are not respected, issues could arise where EU nationals are married to British citizens, or where there is a genuine and subsisting relationship between a parent and child.
As part of the EU the UK is currently party to trade deals with human rights clauses written into them. What are the implications and how important are they? As the UK withdraws from the EU and begins to negotiate its own trade deals, what human rights requirements should it write into them? Should it model them on the current wording in EU trade deals or should the UK be setting higher standards?
Other human rights protected by EU law
What is the potential impact of withdrawal on other human rights protected by EU law? These include labour rights, disability rights and rights to freedom from discrimination on grounds of e.g. sexual orientation. To give just one example, in the area of children's rights there are detailed Directives on the subjects of combating child sexual abuse, exploitation and pornography, and on combating human trafficking.
JCHR Chair Harriet Harman said:
"EU law provides many important human rights protections. It is vitally important that these are carefully considered in Brexit negotiations, to ensure that we do not weaken any existing human rights protections, especially where these apply to some of the most vulnerable groups in society."
Withdrawal from the EU would mean that the UK no longer has to comply with the human rights obligations contained in the EU Treaties and other sources of EU law, unless Parliament chooses to continue them in force. The EU Charter of Fundamental Rights, for example, would not apply, and the EU Court of Justice would not have jurisdiction over the UK (except possibly for transitional cases that arose before withdrawal). Other EU law protecting rights would also cease to have effect except to the extent that they have already been transposed into UK law.
The EU Charter is often confused with the European Convention on Human Rights (ECHR), as the Court of Justice of the EU in Luxembourg (the CJEU) is with the European Court of Human Rights in Strasbourg (the ECtHR). While both the Charter and the ECHR 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. EU law is given effect in national law through the European Communities Act 1972. Some Charter rights mirror civil and political rights found in the ECHR; others go beyond the ECHR, covering additional rights including some economic and social rights.
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 Justice 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” (House of Lords, European Union Committee, 12th Report of Session 2015-16, The UK, the EU and a British Bill of Rights, para 71)
Finally, the CJEU is responsible for interpreting all EU law, not just the EU Charter. Individuals have limited access to it. It is not, as such, a human rights court. However, Court of Justice judgments are legally binding on all 28 EU Member States, and carry more powerful enforcement mechanisms. Moreover, where a national court finds that national legislation cannot be interpreted compatibly with the Charter, under the European Communities Act 1972 it can disapply the law itself.
As is well recognised, withdrawing from the EU does not mean withdrawing from the separate ECHR. Although the Government still indicates that it is planning to repeal the Human Rights Act and replace it with a British Bill of Rights, Theresa May has indicated that the Government does not intend to withdraw from the Convention.
The applicability of Article 1 of Protocol 1 to the ECHR (right to the peaceful enjoyment of one's possessions) on economic interests - such as employment and self-employment as well as the free movement of goods and capital - will require careful consideration.
In addition to the Charter and other EU treaty provisions concerning other rights such as equality and freedom of movement, there is a great deal of detailed EU legislation which protects human rights and which is currently directly effective in the UK only by virtue of the European Communities Act 1972. Repeal of such laws may leave gaps in human rights protection. The House of Commons Library has issued a briefing note entitled Brexit: impact across policy areas. Part 12 of this paper gives a summary background of some of the issues that could arise and some information about human rights obligations under EU law.
Written submission deadline
The Deadline for written submissions is 10 October 2016.
The Committee is issuing an open call for evidence, asking interested parties and stakeholders to submit evidence on any impact of the UK's proposed withdrawal from the EU on the human rights framework and protection of human rights in the UK. This is to ensure that the Committee does not exclude any relevant but hitherto undisclosed issues.