The previous blog post drew attention to the way in which the scope of rights protected in the UK may be diminished post Brexit if the EU Charter of Fundamental Rights is not retained as part of domestic law. The second reason for retaining the Charter draws attention to the remedy provided when rights are breached. Individuals relying on the Charter at the moment can use the Charter to disapply legislation which breaches Charter rights. This is a legally binding remedy which invalidates the relevant legislation. This is not the case for those relying on common law rights, or their Convention rights under the Human Rights Act.
The Difference Disapplication Makes
The clearest illustration of the difference disapplication can make is the case of Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs. Ms Benkharbouche wished to bring a series of actions in employment law against her employer, the Sudanese Embassy in London. Some of her claims relied on EU rights (e.g. the Working Time Regulations which implement the EU’s Working Time Directive into UK law) and some relied on UK rights (e.g. her claim for unfair dismissal). However, difficulties arose with her claim as the State Immunity Act 1978 appeared to prevent foreign nationals – like Ms Benkharhouche – from bringing actions against foreign embassies in the domestic courts. Ms Benkharbouche argued that this Act effectively prevented her from bringing her legal claim and, as such, that her rights under Article 6 ECHR (the right to a fair trial) and under Article 47 of the Charter (the right to an effective remedy and to a fair trial) had been breached.
The Supreme Court agreed that her rights had been breached. Under the Human Rights Act 1998, the court could only issue a declaration of incompatibility, as it was not possible to read the State Immunity Act 1978 in a manner compatible with Article 6 ECHR. This remedy has no legal effect, but may “persuade” Parliament that remedial legislation is required to improve human rights compliance. In other words, the State Immunity Act 1978 continued to apply to Ms Benkharbouche, meaning she was not able to bring her claim for unfair dismissal. However, because of the primacy of EU law, the UK courts could rely on Article 47 of the Charter to disapply provisions of the State Immunity Act 1978, enabling Ms Benkharbouche to continue her claim for a breach of the Working Time Regulations, as these Regulations were within the scope of EU law. In short, the Charter ensured the fundamental right of access to justice in a situation where neither the Human Rights Act 1998 nor the common law made inroads.
It can be complicated to determine precisely how Ms Benkharbouche’s specific situation would be resolved post Brexit. However, the difference disapplication makes is plain to see. Moreover, it is clear that the remedy of disapplication disappears if the Charter disappears. After exit day, Ms Benkharbouche may be apply to rely on fundamental rights which exist irrespective of the Charter, but breach of such a fundamental rights cannot be used as the basis of a legal action, and no court can ‘disapply or quash any enactment or other rule of law’ or ‘quash any conduct’ as unlawful because it breaches these fundamental rights.
But wasn’t Brexit all about regaining sovereignty?
Whilst it is easy to illustrate a difference in remedy, it may be harder to conclude that the remedy must be preserved. This requires a policy choice: a policy choice that should be made in as transparent and accountable a manner possible. When making this choice, it is important to remember that the European Union Withdrawal Bill currently preserves the supremacy of EU law as regards legislation enacted prior to exit day. A recent report of the House of Lords Constitution Committee has both explained the flaws, and suggested a possible means of achieving this outcome. Their suggestion is to require all EU-derived laws that have not been incorporated into English law by either primary or delegated legislation to have the same status as an Act of Parliament. As such, EU derived law would impliedly repeal legislation enacted prior to exit day which contradicted provisions of EU-derived laws.
The same could be achieved for the EU Charter. Its provisions could be given the same status as an Act of Parliament, either through inclusion in the Withdrawal Bill, or separately through inclusion of its provisions in a separate Act of Parliament. Moreover, if this separate Act of Parliament were to be classed by the courts as a constitutional statute, then the provisions of the Charter could not be impliedly repealed. They would only be able to be overturned expressly, or by specific wording making it clear that Parliament wished to overturn a Charter right.
There are many arguments for and against the remedy of disapplication. What is important is to ensure that proper debate takes place over the future status of the Charter; one which recognises that there could be a means of providing a strong protection for Charter rights whilst preserving the sovereignty of Parliament, and which takes full account of the remedy we will lose were the Charter to disappear.
My thanks to Haley Hooper for her comments on an earlier draft of this post.