It was to be expected that leaving the European Union and the gargantuan task of ‘de-Europeanising’ our statute book would be legally complicated. But the simplest solutions are often the best – and the wholesale transfer of EU law into domestic law was the only realistic way this could ever have been achieved.
The Repeal Bill pretty much does that, but with one very troubling caveat. We’ll be leaving the Charter of Fundamental Rights of the EU behind – with serious consequences for human rights and equality protections.
In refusing to incorporate the Charter, the Government has made an exception to its own rule that “the same laws will apply on the day after exit as the day before”. As the Repeal Bill itself makes clear: “the Charter of Fundamental Rights is not part of domestic law on or after exit day”.
From its early white paper to the publication of the Repeal Bill, the Government has argued that the rights covered by the Charter are protected elsewhere in the law.
But, though they might look similar to the rights in the European Convention on Human Rights, the rights in the Charter have been interpreted to provide for higher levels of protection in a whole range of areas.
Ironically, this includes the right to privacy that David Davis relied on in his landmark case before the EU Court of Justice. The very same instrument he now says is no longer necessary helped him successfully challenge mass surveillance powers contained in the Data Retention and Investigatory Powers Act back in 2015.
But it’s not just people’s privacy that the Charter protects. There’s a right to physical and mental integrity that bans eugenic practices, using the human body and its parts for financial gain and the reproductive cloning of human beings.
There’s a right to vocational and continuing training, and another for elderly people to lead a life of dignity and independence, and to participate in social and cultural life.
The right to a fair trial contained in the Charter has been used to require EU member states to provide legal aid, and its version of the right to freedom of thought, conscience and religion includes a right to conscientious objection.
These rights are nowhere to be seen in UK law. If we leave them behind when we leave the EU, we lose them. Whether you think Brexit is good or bad, losing rights protection in the process is not what anyone voted for.
This isn’t a radical call for more rights. It’s simply about preserving those we already have. So Liberty is supporting amendments to the Repeal Bill, such as those tabled by a Conservative group led by Dominic Grieve MP, which would retain the Charter as it currently applies.
This is an infinitely better proposal than the Government’s approach, not only for human rights but also for legal certainty and clarity – buzzwords that have accompanied government pronouncements on the Repeal Bill at every stage.
As it stands, the Bill suggests that any references to the Charter in pre-Brexit case law should be read as though they are references to “corresponding fundamental rights or principles”. This is a fudge destined to lead only to uncertainty and confusion.
How are we supposed to know which sources these “corresponding rights and principles” should be drawn from? Would incorporated international law sources make adequate substitutes, or did the drafters of the Bill envisage a straight swap between the Charter and European Convention on Human Rights?
It’s almost as if they don’t understand exactly what the Charter guarantees.
Take the example of David Davis’s case against mass surveillance. The courts have developed Article 8 under the Charter in a far more expansive way than the right to privacy under the Convention. The Charter provides a so-called digital right to privacy – a vital protection in the 21st century which we would lose if the Repeal Bill passed in its current state.
It would be foolish to assume that the rest of the EU law the Bill brings home could be separated from the Charter without issue. One academic has suggested it would be like “separating an egg from an omelette”.
Here, the interests of human rights campaigners and businesses appear to be closely aligned. We both want continuity and legal certainty.
The most frustrating thing about this situation is that it could have been so easily avoided.
Keeping our Charter rights wouldn’t force us to stay within the jurisdiction of the EU Court of Justice, or require any future EU involvement in our law-making. We would still leave the EU – but by keeping the Charter we could enforce the same rights we have now through UK courts.
In ditching the Charter the Government is sacrificing our hard-won rights and freedoms in favour of a political power grab disguised by technical legislation.
Every MP who cares about the rights and freedoms of their constituents – whether they voted leave or remain – must support amendments to make sure we don’t lose our rights when we leave the EU.
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.