Written evidence submitted by the Human Rights Centre, University of Essex (HRB0034)

I. Introduction

This submission is made on behalf the Human Rights Centre of the University of Essex. The Centre brings together over 80 academic staff from 11 departments who are prominent scholars in human rights and advise and act on behalf of governments, NGOs, national and regional human rights bodies, and international organisations such as the United Nations. We welcome this call for evidence on the human rights implications of Brexit.

II. Executive Summary  

• Brexit could expose rights that had enjoyed greater protection by virtue of EU law to a weakening political commitment to such standards. Even if the standards provided by EU law were upheld through subsequent national legislation, they would not enjoy the accountability and sanction mechanisms that had ensured the implementation of EU law.

• Without a special deal, the right to family life could be subject to lower standards of safeguards for both UK citizens residing abroad and EU nationals seeking family reunion in the UK.

• The EU Charter provides a higher level of safeguards than the ECHR in relation to data protection. It is not clear how much protection the General Data Protection Regulation will give post-Brexit.

• It is possible that following Brexit equality rights will decrease since the UK is not party to the ECHR Optional Protocol 12 that guarantees a free-standing right to equality.

• Brexit could adversely affect employment and labour law in the UK, weakening workers’ rights in areas such as employee protection under transfer of parts of a business to another employer; the right to information and consultation by employers; and protections against excessive working time, among others.

• Women’s rights could be affected directly and indirectly. Inequality between women and men will worsen if the quest for economic competitiveness leads to weakening of protections for part time and low paid workers where women are over-represented.

• Brexit could affect a number of protections related to the right to health and the right to food, including access to medical care in EU countries. It could also affect the UK’s role in public health related issues that require a co-ordinated response.

• The democracy deficit might widen if secondary legislation is the means employed to repatriate EU law.

• Brexit could undermine the UK’s ability to champion human rights overseas. The UK will no longer be able to champion enlargement of the EU that has served to promote peace, prosperity, stability and human rights.

III. Recommendations:

a)      There is an urgent need to ensure that members of both Houses of Parliament are fully informed of the full human rights implications of Brexit.

b)      It is vital that Parliament is able to play a full and effective role in all decisions concerning the implementation of Brexit. 

c)      It would be important not to use secondary legislation to amend any aspect of EU law related to human rights after it is converted to national law.

IV. General Comments

1)      Discussion of the impact of Brexit inevitably focuses on the application of the EU Charter of Fundamental Rights.  Ceasing to be a part of the EU will inevitably affect the application upon the UK of all sources of EU law - whether primary or secondary – including the Charter.

2)      Thus far, the Charter has been invoked in UK courts only in cases involving implementation of EU law obligations or derogation from them. It has never applied in cases involving the adoption of our own laws in areas that fall outside the scope of EU law. Protocol 30 reaffirms in Article 51(2) Charter and Article 6(1) TEU that the Charter will not extend the application of EU law beyond the powers of the EU and therefore establish new rights. The Charter was never intended to replace generally applicable human rights guarantees such as those in the Human Rights Act 1998 (for example, Article 52 (3) Charter is explicit about its parity with the ECHR) and was not meant to forge a new bill of rights for the UK. The plethora of fundamental rights deriving from the ECHR are protected through domestic legislation and will not be automatically affected by the termination of UK’s EU membership - i.e. when the Charter will cease to apply to the UK.

3)      The Charter attracted considerable criticism from the ‘Leave’ campaign. This was primarily due to: i) the lack of clarity regarding the rubric of implementing EU law; and ii) the incremental human rights culture developed within the Court of Justice of the European Union (CJEU) which has expanded the types of questions falling within jurisdictional boundaries of that Court.

4)      The CJEU’s ability to review and to interpret EU law in the light of the Charter may have knock-on consequences for national law. Hence, the rights under the ECHR that Parliament did not include in the Human Rights Act 1998 can apply (indirectly) in the UK by virtue of the Charter. This is particularly relevant in relation to the application of social rights found in the Charter’s Social Chapter (Title IV) and their impact on domestic labour law.

5)      In practice therefore the Charter has provided new remedies and stronger protection of human rights guaranteed by EU law. Brexit would eliminate the power of UK Courts to disapply UK legislation that contravene the Charter and as such is incompatible with EU law. It could also expose rights that had enjoyed greater protection by virtue of EU law to a weakening political commitment to such standards, in a climate of rising racism, xenophobia and economic uncertainty. Even if the standards were upheld through subsequent national legislation, they would not enjoy the accountability and sanction mechanisms that had ensured the implementation of EU law.

V. Areas of Concern

6)      While a number of the impacts are speculative, there could potentially be negative implications for human rights protection in a number of areas.

Right to a Private and Family Life

7)      The recognition of the right to family life under EU law has been beneficial to UK citizens who reside in other Member States. Directive 2004/38 allows UK citizens (as EU citizens) to migrate to another Member State together with their family members for the purposes identified in the Directive. The CJEU’s case law on Articles 20 and 21 TFEU has also been explicit that the host Member States must facilitate the integration of EU citizens’ and their family members without imposing any unnecessary obstacles. Initially, the right to family life was recognised in EU law as corollary to economic freedoms under the Treaty and not so much as a fundamental rights / ECHR derivative. The argument was that an EU citizen-worker would be more incentivised to move and work in another Member State if she met no particular obstacles in bringing family members along with her. This approach has now changed: it is established that Article 8 ECHR provides a minimum standard of protection when acting within the scope of EU law (Metock[1]) but also EU law, through Article 7 of the Charter, now requires Member States to offer protection beyond this minimum threshold.

8)      Brexit would detach the right to family life as corollary to the exercise of fundamental freedoms under the Treaty. Without a special deal with the EU regarding the free movement of persons, British claimants residing in another Member State would be treated as third-country nationals for the purpose of EU law and would only be able to rely on EU legislation on the position of non-EU citizens. This sets lower standards than EU free movement law in order to challenge immigration controls to the extent that they are unpredictable, inconsistent and unfair. For their part, EU citizens who already reside or wish to come and live in the UK could only rely upon the ECHR. Given the heated debate prior to the EU Referendum on immigration control, post-Brexit reform in the field is likely to be strict in order to reflect the perceived ‘public interest’. Immigration reform would probably affect everyone seeking to enter or remain in the UK on the basis of their family life with a person who: is either British or non-British but settled in the UK; has refugee leave or humanitarian protection; or wishes to remain on the basis of her private life in the UK.

9)      As it is currently the case, any debate over changing immigration rules would have to set out the Secretary of State’s position on proportionality. Likewise, any future legislative act on the matter would have to be the outcome of debate in Parliament. What is more, in case of disputes, our courts would have to review the proportionality of new immigration rules (inclusive of deportation orders served as a result of these rules) and strike a fair balance between public interest and the private right to privacy and family life. All in all, our judicial practice would have to reflect the case law of the ECtHR, especially in measuring the likely difficulties which a spouse or child may encounter as a result of domestic law.

10)  A further impact on the right to privacy concerns data protection.  Currently within the ECHR data protection is considered an Article 8 issue but within the Charter two provisions apply: Articles 7 and 8.  To some extent, the Charter provides a higher level of safeguards in relation to data protection – both in terms of commercial use of data as well as state surveillance – which have been supported by the CJEU’s approach in cases such as Digital Rights Ireland,[2] Schrems[3] and Google Spain[4].  The EU will continue to exert an influence through the General Data Protection Regulation, but it is not clear how much protection this will actually give. It should be noted that if the UK does not maintain ‘adequate’ standards as defined by the EU, the exchange of data in both the commercial and state spheres may be restricted (Schrems, Google Spain; and see the pending cases Opinion 1/15[5] and Tele2[6]).

Equality and Non-Discrimination

11)  The UK is not party to ECHR Protocol 12 that guarantees a free-standing right to equality. The Protocol goes beyond Article 14 ECHR that must only be pleaded in relation to another substantive right in the ECHR. Following Brexit, equality rights could decrease to the extent that Protocol 12 overlapped with EU law.

12)  There are also concerns about the future development of UK’s equality law once UK laws are decoupled from EU law. Guidance from the CJEU will no longer automatically be available, for example, in relation to the operation of principles, such as shared burden of proof, built into the Equality Act on the basis of EU law. However, it would be open to Parliament, or the courts, to continue to treat CJEU rulings as persuasive. Uncertainty about the future direction of UK law and policy in regard to addressing racial discrimination is heightened for example, in relation to racial profiling, especially in the context of rising security challenges. It is also possible that underlying principles of non-discrimination, derived from EU law, might not receive the focus that they deserve in the context of the wide range of issues, including trade, which might likely take a higher priority for policymakers.

Workers’ Rights

13)  Brexit could adversely affect employment and labour law in the UK, weakening workers’ rights in areas such as employee protection under transfer of parts of a business to another employer; the right to information and consultation by employers; and protections against excessive working time, among others. The concern is that the UK will be inclined to weaken these and other employment guarantees below the level they would otherwise be in order to secure a competitive edge against certain EU states for inward investment. The concern about the impact on workers’ rights is heightened by the UK’s track record of curtailing workers’ rights and basic social welfare provisions, in addition to the attempts that have been made to opt out of certain provisions of EU employment laws, such as the Working Time Directive and the Temporary Agency Work Directive. Thus, a post-Brexit recession could see the sacrifice of a number of these provisions in the name of competitiveness or fiscal discipline.

Women’s Rights

14)  Women’s rights could be affected directly and indirectly. There are EU directives that explicitly protect women’s rights, such as the Pregnant Workers’ Directive or the Parental Leave Directive. Measures that undermine the rights of part time workers would indirectly affect women’s rights as women are disproportionately represented in such employment. The removal of protections provided by the Part Time Workers’ Directive and the Agency Work Directive would, for example, affect guarantees of pension rights, parental leave for both parents, and the right to a written contract stating hours and pay. Inequality between women and men will worsen if the quest for economic competitiveness leads to weakening of protections for part time and low paid workers.[7]

The Right to Health

15)  Brexit raises questions about the maintenance of protections related to the rights to health and food (see Charter Article 34).  For example, an important right to health function is provided by regulations on: tobacco controls (Directive 2003/33/EC on advertising and sponsorship of tobacco) that regulate the sale and presentation of tobacco; rights to safe food and accurate information including through food labelling rules; and cleaner air and water. EU regulations currently guarantee access to treatment for UK nationals living in or travelling to EU countries and EU nationals living in or travelling to the UK on an equal basis with nationals of host countries.   

16)  EU regulations and institutions also play a role in maintaining a coordinated regional response to communicable disease prevention and control. In addition to the management of ongoing threats, the Early Warning and Response System and the European Centre for Disease Control played an important role in response to emergent cross-border health threats, such as Ebola and Swine Flu. The EU Public Health Program also facilitates shared learning across borders.

Democracy

17)  Despite the promise that leaving the EU would reclaim the sovereignty of the UK parliament, Brexit could further undermine its powers. This could potentially happen in the process of repealing EU laws where secondary legislation is likely to be used, including potentially widespread use of Henry VIII clauses. This could create challenges for human rights, in two ways. Firstly, secondary legislation might not provide the opportunity for citizens or the parliament to contribute meaningfully to the process, and thus reinforce the democracy deficit. Secondly, the subject matters of such secondary legislation would cover key human rights concerns such as workers’ rights or other areas noted above.[8]

Trade and Human Rights

18)  As regards, human rights clauses in trade deals that the UK would be negotiating post-Brexit, we support the view that there is no rationale to change them especially since the international regime stays the same. The current application of the Charter / and its future non-application for the UK does not change the substance of it.

19)  It would however be unfortunate if in the quest for new economic relationships, human rights are regarded as a secondary issue. This could further undermine the UK’s ability to promote human rights overseas while Brexit has already damaged the UK’s standing as a champion of international human rights. While Brexit could enable the UK to take more robust positions on specific human rights issues rather than be bound by the lowest common denominator in the collective formulation of common positions, after Brexit it is also likely that the UK will carry less weight than it has enjoyed as a member of a collective Union.

Protection for Refugees

20)  Brexit will not alter UK’s commitment to the 1951 Geneva Convention on the Status of Refugees and its 1967 Protocol. However, the exercise of these obligations may be affected by possible exclusion from the Dublin Rules and other arrangements that require an EU co-ordinated response.

Enlargement

21)  Enlargement has been an important objective of the EU and seen as a motor of constitutional change, peace and prosperity to neighbouring regions and has contributed to improving human rights. The UK has always been a firm advocate of enlargement, particularly in the ‘widening v deepening’ debate, where it has emphasised the importance of widening. Brexit means that an important advocate of enlargement will no longer be at the negotiating table.

October 2016

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