What happens to a raft of human rights when we leave the European Union and the European Charter of Human Rights no longer applies? The question is raised by the leading constitutional expert Vernon Bogdanor. Successive UK governments (and I!) thought we had opted out of it for years, but the European Court of Justice ruled in 2013 that we hadn’t. Inevitably there is an Irish angle to this that may be of particular concern to Irish-EU citizens in Northern Ireland. After Brexit how would those rights be protected if the jurisdiction of the European Court of Justice in Luxembourg is fully withdrawn, as is the British government’s formal position? Are they content to leave the future of those rights to the sovereignty of the Westminster parliament and the British courts, taking account of that other European Court at Strasbourg which which is not an EU institution and will continue to apply to the UK.
The solicitor Martin Finucane has presented a letter from Irish citizens in the North” to Leo Varadkar, stating that they’re: “shocked at the level of permanent inequality in respect of access to rights that people in the North are expected to endure”. “In summary, marriage equality, language equality and access to justice before a court of law..”.
The letter calls on Mr Varadkar to ensure that “equality, human rights and respect afforded to Irish citizens in the South are enshrined as inalienable rights in the North.”
How this might be done isn’t explained.
You might have thought these matters were already protected by the GFA including legislation by the Assembly. And indeed, the “draft agreement” between Sinn Fein and the DUP reopened the question of a Northern Ireland Bill of Rights, provided for in the GFA but long blocked by the unionist parties.
The EU (Withdrawal) Bill, presently before parliament, seeks to secure legal continuity after Brexit by providing for the incorporation of 44 years of EU law not already part of our domestic law. The bill does something quite unprecedented in modern constitutional history.
Since December 2009 the EU constitution has included the European Charter of Fundamental Rights. Its 54 articles contain many rights that are not in the European Convention of Human Rights, including a very wide right to non-discrimination on grounds such as “sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”. In addition it provides a genuine legal remedy since, by contrast with the Human Rights Act, the courts are under a duty to disapply legislation conflicting with it.
Brexit will leave a gap in our protection of human rights. As Andrew Langdon, QC, the chairman of the Bar Council at the time, said in September: “Rights are not being brought home, they are being abolished.” It is rare, if not unprecedented, for a democracy to exit from a major international rights regime. In most democracies rights protection is being enlarged, not abolished. In Britain, by contrast, they are losing judicial protection.
There are just three democracies without codified constitutions — Britain, New Zealand and Israel. But Israel’s Basic Law: Human Dignity and Liberty, enacted in 1992, provided that a law that contravenes rights enumerated in it could be declared invalid by the courts. Israel’s chief justice declared that the country had been taken “out of its isolation and placed in the larger community of nations in which human rights are anchored in a ‘written and rigid’ constitution”.
In Britain, by contrast, our rights will be dependent on a sovereign parliament. Are our MPs so uniquely sensitive to the protection of human rights that they can be entrusted with this important task?
Brexit reveals the nakedness of our unprotected constitution. It could therefore prove a constitutional moment. Is it not time that we followed nearly every other democracy by enacting a codified constitution that provides judicial protection for our rights?
But there is a different view from Brexit Central
In our Lawyers for Britain paper, The Charter of Fundamental Rights in UK law after Brexit: Why the Charter should not be transposed, we argue that the Government is right to deny the Charter a place in UK law after exit. Citizens agree to be ruled by law because it rules our society – and its institutions – in a way that is predictable and certain: the Charter is neither certain nor predictable in its operation, and so must be rejected if the UK is serious about preserving the proper rule of law.
The Charter, if retained, would overlap with our existing human rights regimes – the European Convention on Human Rights (as incorporated by the Human Rights Act 1998), which the Charter substantially duplicates but can also exceed, and the common law. As the Human Rights Act and the common law will regulate the body of retained EU law, it is difficult to see what extra value the Charter would add (apart from all the extra, possibly lucrative work for lawyers) that would justify the price to be paid in retaining it.
The EU Withdrawal Bill gives the UK Parliament a second chance to remove the Charter from UK law. Here’s why it should seize that second chance.
The Withdrawal Bill aims, sensibly, to keep EU law on the statute books after Brexit so that businesses and individuals can be sure that their rights and obligations remain the same – pulling the rug from under our feet is in no one’s interests. Retaining the Charter could not, however, serve the purpose of maintaining legal certainty. It protects rights by operating in tandem with the doctrine of the primacy of EU law, which will continue to apply to EU law incorporated prior to Brexit: this means that any EU or UK law, or a provision within it, already on the statute books could be disapplied – essentially switched off – if it were incompatible with the ECJ’s interpretation of Charter rights. If we cannot say with certainty when Parliament’s laws will be supreme, including the laws transposed by the Withdrawal Bill, then the UK’s standard of legal certainty will not be preserved.
One might counter this by saying that we are used to EU law carrying a big stick, and retained EU law will continue to do so after Brexit. True enough. But the operation of the Charter makes it even more difficult to predict where the big stick might fall – such that retaining the Charter would really mean, to change metaphor, sowing the statute book with hidden landmines.
A remedy for the North is suggested by the prominent barrister Anthony Collins SC
The most straightforward solution would be to permit the courts of Northern Ireland to make references for preliminary ruling to the European Court of Justice on the same terms as at present.
Would Theresa May agree? The debate continues.