Equally Ours — Written evidence (RAB0003)

Introduction

1.         Equally Ours (previously the Equality and Diversity Forum) brings together people and organisations working across equality, human rights and social justice to make a reality of these in everyone’s lives. Our influential national network advances evidence-based policy initiatives and solutions to bring about a just and inclusive society. Further information about our work is available here  

2.         The Committee is considering the following issues:

• the impact of the loss of the Charter of Fundamental Rights;
• the way in which standards relating to rights will be contained in any future agreement with the European Union; and
• the future framework for rights after Brexit, including the Human Rights Act and the European Convention on Human Rights.

3.         This submission sets out Equally Ours’ evidence and analysis on the first and last of these issues.

The impact of the loss of the Charter of Fundamental Rights

4.         The Charter of Fundamental Rights provides important protections for rights that fall within the scope of European Union law, it operates as an essential part of the body of EU law. The European Union (Withdrawal) Act 2018 specifically excludes the Charter.

5.         The Government say that omitting the Charter will not affect 'the substantial rights of any UK citizens'. We do not agree with this assessment.

6. Examples of areas which would be left unprotected by the exclusion of the Charter include situations where –
• The right for a child's best interests to be a primary consideration in all actions taken by a public or private institution would be diminished. After leaving the EU these will not be covered in the same way or to the same extent. Although clause 3 of the UN Convention on the Rights of the Child provides for this, as the UK has not ratified this Convention, it is not incorporated in UK law and not directly enforceable here.
• Access to justice would be affected in cases where there are gaps in domestic provisions. For example, a woman employed in a private capacity by a foreign government in their UK embassy was prevented from bringing a claim of discrimination and harassment because her former employer claimed state immunity; however, the provisions of the Charter were used to ensure that she had a right to access to a Court to adjudicate on her claim.[i] 
• Access to vocational and continuing training would be affected because it is excluded from the EU directives but included as a Charter right,[ii]

7. Moreover, there would be no right of action in domestic law based on a failure to comply with any of the general principles of EU law, which include the fundamental rights set out in the Charter. The courts will not be able to dis-apply or quash any law because it is incompatible with any of the general principles of EU law, including fundamental rights.

8. The Government say that these shortcomings can be made up by the application of relevant UN treaties that the UK has ratified. However, ratification of these treaties does not make them directly enforceable in the UK so they will not provide equivalent rights.

9. Additionally, the way that the provisions in sub-sections 5 (4) and (5) of the EU (Withdrawal) Act 2018 are worded means that there remains considerable uncertainty about the effect of the exclusion of the Charter. While it is clear that no action can be taken on the basis of a Charter right alone, it will remain as a point of reference for the interpretation of retained EU law where, for instance, it has been recognised in current EU caselaw that the Charter is relevant (e.g. Mangold para 75[iii]). Thus, while sub-sections 5(4) and (5) will preserve the effect of an extensive body of EU legislation, this will be without the important safeguard and interpretative tool that the Charter currently provides in relation to that legislation, in particular, in relation to changing circumstances.

10. It is inevitable that these sub-sections excluding the Charter from retained EU law will give rise to extensive litigation to establish whether and to what extent specific Charter rights continue to have effect in domestic law and to what extent they may be protected by the legal mechanisms that exist post-Brexit. Such a lack of legal certainty cannot be in the public interest, particularly in a time of significant cuts to legal aid and legal advice services.

The future framework for rights after Brexit, including the Human Rights Act and the European Convention on Human Rights

11. There is considerable uncertainty about the future framework of rights following Brexit. While it is to be hoped that the current UK framework of law including the Equality Act 2010, the Human Rights Act 1998 (HRA) and the European Convention on Human Rights would remain and could be relied upon, this is by no means certain. The correspondence between your committee and the Lord Chancellor when reference was made to ‘revisiting the Human Rights Act once the process of leaving the EU is concluded’, does not give rise to confidence.

12. We conclude that if the Charter is removed the importance of maintaining the HRA is only increased. The HRA has infused human rights values into the British legal system, which has supported and enhanced legal protection for the rights of us all, including people and groups who face discrimination and disadvantage.

Equally Ours                                                                                         April 2019

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