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xEU (Withdrawal) Bill Update: Equality and Human Rights Commission criticises UK Government's right-by-right analysis of the EU Charter
Date: 30th January 2018
Category:
Other human rights treaties and mechanisms
On 16th January 2018, Together highlighted criticisms which had been made about the UK Government's "right-by-right" analysis of the EU Charter (read the article here). This criticism has continued and on 18th January 2018 the Equality and Human Rights Commission published a Legal Opinion on the matter. In this Opinion, Jason Coppel QC concludes that removing the Charter will result in a reduction in rights, contrary to what the UK Government claims.
The UK Government's right-by-right analysis takes each Charter right and identifies whether the UK is party to another international treaty containing a similar right, whether domestic protection of the right exists, and whether the right forms part of the "general principles" of EU law. The UK Government's conclusion is that each of the Charter rights shall be protected after Brexit on some or all of these grounds and, therefore, there shall be no reduction in rights protection by removing the Charter. However, the Legal Opinion obtained by the Equality and Human Rights Commission finds that this conclusion is incorrect for several reasons.
Firstly, the UK Government's analysis is simplistic and merely identifies where certain aspects of a Charter right are protected elsewhere. This is not the same as these rights being protected in their entirety by other sources. This is particularly important because the Charter has created new rights and extended the scope of certain existing rights. The Charter contains certain provisions of great importance to children and young people which are not protected in domestic law to the same extent. These include a freestanding right to equality, and a dedicated provision on the rights of the child. The Legal Opinion concludes that these rights will not be fully reflected in domestic law if the Charter is lost.
Secondly, the UK Government's analysis suggests that Charter rights shall be protected after Brexit where they are contained in other international treaties to which the UK is party. However, some of the treaties the UK Government refers to, including the UN Convention on the Rights of the Child, have not been incorporated and therefore individuals cannot go to Court if their rights under that treaty are infringed. Accordingly, the Legal Opinion notes that these references made by the UK Government to unincorporated treaties "should be viewed with caution".
Much of the UK Government's argument that rights will not be affected by removing the Charter relies on its claim that many Charter rights also form general principles of EU law and these general principles will be preserved after Brexit. However, as the Legal Opinion notes, the Withdrawal Bill provides that these general principles may only be used by Courts when interpreting EU laws retained under the Withdrawal Bill. Individuals will not be able to enforce these general principles in UK courts.
Furthermore, the Opinion notes that loss of the Charter means losing the remedies it contains. This is important given that, in certain cases, the Charter can provide a more effective remedy than is available under the Human Rights Act.
The Opinion concludes that, contrary to the UK Government's claims, removing the Charter shall result in a reduction in rights protection. It states that the only way to ensure that this does not happen is for relevant parts of the Charter to be preserved after Brexit.
In response to the above Legal Opinion, Together and the Children's Rights Alliance for England (CRAE) have produced a joint briefing for second reading in the House of Lords. This next stage of the Withdrawal Bill takes place on 30th-31st January 2018. The briefing argues that relevant rights within the Charter must be preserved.
The Equality and Human Rights Commission has also produced a briefing for second reading in the House of Lords which also argues for the preservation of relevant Charter rights.