What is the ‘Great Repeal Bill’?
The European Union Withdrawal Bill (‘Bill’), is an essential piece of legislation in the Brexit process. It would repeal the European Communities Act 1972 and intends to
- put an end to the ‘supremacy of EU law’ and the jurisdiction of the Court of Justice of the EU in the UK.
- convert to a large extent wholesale EU law as it stands into UK law as ‘retained EU law’ to avoid a legal vacuum upon exit.
- confer significant delegated powers to the government to modify ‘retained EU law’.
The Government reassures that the same rights and obligations will apply on exit day as today. The Bill (Section 4(1)) contains such a fall-back clause intended to provide greater legal certainty. Nevertheless, other provisions of the Bill reduce existing rights available to individuals and businesses.
Impact on the Protection of Fundamental Rights
One of the most important changes in the protection of individuals’ rights is the repeal of the EU Charter of Fundamental Rights (Charter). Like all other EU legislation it will cease to apply on exit day. However, unlike much other EU legislation, the Bill does not foresee to convert the Charter into UK law as retained EU law.
The Bill reflects the Government’s position that it would not make sense to keep the Charter because it did not create new rights anyway, and because it only applies when the UK acts ‘within the scope of EU law’, which it will no longer do upon exit.
This means that retained EU law is (only) subject to other human rights laws, which exist independently from the Charter (like any UK law). The most important statute in this regard is the Human Rights Act (HRA). But the Government (through Parliament) will be able to change the human rights statutes by passing new legislation.
Contrary to assurances of the Government, not ‘converting’ the Charter into UK law reduces the protection of individuals’ and businesses’ rights. The Charter protects against the EU institutions and member states when they apply EU law. Because the UK will continue to apply EU law (as retained law), the repeal of the Charter will remove safeguards which otherwise apply to these rules.
The effect will be felt most in areas in which the Charter increased and developed protections in line with modern-day requirements and above the level of the HRA. The HRA provides that the rights guaranteed by the European Convention on Human Rights (ECHR) can be invoked directly in the UK. But the ECHR provides a common minimum standard for a much larger area beyond of 47 states, including in Eastern Europe and Central Asia, amongst them Russia and Turkey.
An example where of EU Charter provides more protection than the HRA with the ECHR is the right to a fair trial, including the right of access to a lawyer. This right also applies to deportation hearings under the Charter, but not under the HRA/ECHR. Other examples are the protection of personal data, same-sex marriage and employment rights.
The Charter also gives a wider right to bring claims against member states when they have a ‘sufficient interest’ whereas the HRA has a higher threshold. Remedies under the Charter are also stronger. Judges can disapply national law breaching fundamental rights under the Charter, but not under the HRA.
Incorporating most EU legislation into domestic law whilst repealing the Charter will therefore reduce rights: EU law converted into UK legislation will continue to apply (subject to certain changes), but protections for individuals from such legislation will be removed.
Reducing legal certainty
The repeal of the Charter in UK law creates legal uncertainty in respect to the protection of fundamental rights when retained EU law is applied.
There is further uncertainty because fundamental rights do not only apply via the Charter but also as ‘general principles of law’, recognised in the case-law of the EU Court of Justice. The explanatory notes to the Bill explicitly mention fundamental rights as an example for general principles of law. Charter rules might, therefore, still apply where they reflect general principles of law.
However, the status of general principles of EU law post-Brexit is complex. The Bill excludes that general principles are directly enforceable in UK courts. They can be used to interpret retained EU law, but because they are vague and likely to cover only the most fundamental rights, they are not providing equivalent protections to the Charter.
The Bill passed the second reading, and now is considered at committee stage before coming back to the whole House. Labour, Liberal Democrat and some Conservative MPs have proposed 136 amendments in the second reading, including proposals to retain the Charter as UK law and to limit delegated powers so that the Government cannot take away individual rights without involving Parliament.
Nevertheless, the impact of Brexit on individual rights remains of concern. It is uncertain whether an amendment converting the Charter into UK law will be passed. If EU law continues to apply in substance after being converted into UK law, arguably the limits to such EU law should also apply.
The wider picture is that other individual rights, such as the free movement of persons, free trade, immigration, etc. may also be restricted after exit day, depending on the agreement reached with the EU. The HRA which incorporates the ECHR into UK law will continue to apply, and the Government stated that it does not intend to repeal it, but this may still be up for discussion: the 2015 Conservative Manifesto promised to substitute the Human Rights Act with a British Bill of Rights. Overall, the Bill, while not free of the irony of (temporarily) ‘supermaxing’ EU law, seems to support a pattern of reducing fundamental rights and legal certainty after Brexit. The effect of both aspects of the Bill is to contribute to increasing executive powers.
Gaps in the protection of fundamental rights will need addressing. This task will fall to the judiciary. Judges can use the scope for interpretation of the ECHR and develop the common law. Whatever the future formal status of the Charter will be in the UK, Charter rights (and general principles of law) may still have a role to play.
They are reflected in the case-law of the Court of Justice which British judges, though no longer obliged, are allowed to apply if they think it is appropriate. Hence the Charter might still have a second life and assist in developing the common law and interpreting the Human Rights Act/ECHR.
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.