The Fate of the Charter of Fundamental Rights in UK Law After Brexit is Sealed
On Monday in the House of Lords, Lord Pannick withdrew his amendment to the EU Withdrawal Bill retaining the EU Charter as part of the UK’s post-Brexit settlement. With this, the Charter’s fate in UK law post Brexit was sealed. When the UK leaves the EU, the EU Charter will cease to apply. The status of the Charter during the transitional period, whilst the UK is neither in nor out of the EU, is still to be confirmed but it would seem inconceivable that the Charter would not continue to apply during that period.
Lord Pannick was magnificent at Report stage when, backed by a cross-party alliance, the Lords voted to retain the Charter post Brexit. It was the House of Lords at its best standing up to a Government that had no rational case for jettisoning the Charter. It goes without saying that his legal arguments were faultless; summed up as legal certainty is undermined if EU law is retained without the Charter. Confusion at best will reign in our courts as they fumble about trying to give effect to human rights within that retained EU law without access to the Charter. Pannick also pointed out that the Prime Minister was reneging on her own promise. She had been categoric that leaving the EU would not lead to any diminution in rights. That pledge is impossible to reconcile with the Government’s decision to exclude the Charter.
The Hansard covering that Report stage is a good read. Lord Pannick demolished the Brexiteers arguments for ditching the Charter one after another, but the machinations of the UK system of Government were against him. Brexit is not about reason, but it is about being rid of European human rights, as the Commons vote last week to overturn Pannick’s amendment proves. Even though there was overwhelming evidence that losing the Charter matters, including from the Equality and Human Rights Commission and the Joint Committee of Human Rights, the Government stood its ground and insisted that the Charter was to be dumped. In the end, Pannick was left with no choice but to withdraw his amendment, having secured a guarantee that the human rights which exist outside the Charter as general principles of EU law, including equality, will linger on.
It should be inconceivable that a democratic legislature would vote to take away rights, but leaving those arguments of principle to one side for a moment, with the loss of the Charter goes rights that don’t exist in the Human Rights Act or common law. Gone is the enforceable right to human dignity. We also say farewell to express rights to data protection, comprehensive protection for the rights of the child, refugee rights, the right to conscientious objection, academic freedom and wide-ranging fair trial rights to name but a few. And, I haven’t even started on economic and social rights.
Tory MPs obeyed their whips and voted down Pannick’s amendment. Those that voted to take away rights included Dominic Grieve. Grieve, a former Attorney-General, is the Tory darling of the intellectual elite. He understands rights, how they work and their significance. He believes in them. He is not distracted by the anti-rights fluff pedalled by the right-wing media, but still he put Conservative Government unity over principle. Sarah Wollaston joined him. Wollaston chairs the Health Select Committee. Yet, she voted to take away the only human rights instrument that has been able to prioritise health over profits. Because the Charter contains a right to a high level of health protection, alcohol companies are banned from crediting health-providing qualities to brands of wine or beer. When Wollaston tries to encourage an English alcohol pricing policy to protect health from the ravages of excessive alcohol consumption, as they have in Scotland, she may regret her decision to vote away the Charter. The challenge by the Scottish alcohol industry could not get around the EU Charter’s right to health. On that basis, their challenge failed.
It’s also hard not to be bemused by the gay and lesbian Tory MPs as they voted to take away the only express right to non-discrimination on the basis of sexual orientation in international law. That to me, as a gay man, seems counter-intuitive.
Some Tory MPs rebelled against the whip. Kenneth Clarke voted to keep the Charter. Anna Soubry, a barrister in a past life, is not listed as having voted. She must have abstained. Why didn’t the others that know that retaining the Charter is in the UK’s best interests also abstain? Had they, the Pannick cross-party amendment might have made it to the statute book. Are MPs too focussed on their role now during the process of Brexit? If the longer-term interests of the UK were of equal concern, maintaining the UK’s current rights framework post Brexit would have been prioritised. Once we’ve left the EU will anyone care whether MPs had a meaningful vote or not? But, it is post Brexit that these MP’s constituents will need their rights the most.
So Pannick withdraws his amendment, grateful in the knowledge that EU equality principles will linger on. The Charter falls, but in that process, those that rallied around it imbued it with the qualities and integrity it deserves. After all it is the document that, in its short life to date, has given us the right to be forgotten, dignity in the asylum process and legal recognition of same-sex spouses. And the Charter will continue to thrive amongst our European cousins as it helps carve out the types of societies many of us aspire to live in.