The White Paper on the Great Repeal Bill: Part III – More Bad News
This is the final post on the human rights implications of the White Paper on the Great Repeal Bill. The first post argued that there was some good news to take from the White Paper, particularly regarding the way in which the Great Repeal Bill will preserve a role for the interpretations of the Court of Justice of the European Union. EU-derived laws will continue to be interpreted in a way that reflects fundamental principles of European Union law, including human rights. However, the second post argued that the broad sweeping delegated powers in the White Paper, including Henry VIII clauses, posed a danger to human rights. Specifically, there was concern that these powers were too broad and that there could be insufficient democracy scrutiny over the exercise of these delegated powers. This final post examines a further concern, which stems from the way in which the White Paper refers to the EU’s Charter of Fundamental Rights and Freedoms.
The EU Charter of Fundamental Rights and Freedoms
This blog post is not the place to re-evaluate the place of the Charter in UK law. The White Paper rightly recognises that the Charter can only be applied in UK law when the UK is acting within the scope of European Union law. It also recognises how the Charter predominantly codifies existing general principles of European Union law which protect human rights and expresses the Government’s intention that ‘the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK’.
However, whilst it may be the expressed intention that the removal of the Charter will not affect rights, it is not clear that this will be the case. First, although the intention is to transfer ‘EU-derived law’ into UK law, it is clear that this cannot be the case for ALL of the current EU law. The Charter may continue to apply to EU-derived laws, but there will not be a perfect correlation between the rights we currently enjoy under EU law and the ‘EU-derived laws’ we will enjoy post Brexit. Some rights will be lost as a consequence of leaving the EU: e.g. the right to stand in European Parliamentary elections, or to live and work across the EU are clearly going to be curtailed. One important concern is the protection of the rights of EU citizens currently residing in the United Kingdom, and the current rights of UK citizens living in other EU countries. The White Paper makes it clear that these will be legislated for in a new Immigration Act. However, as yet, there is no information as to what these provisions will entail. There have only been repeated political assurances of the protection of existing rights of EU nationals residing in the UK. The House of Commons rejected the amendment of the House of Lords to the EU (Notification of Withdrawal) Act 2017 designed to protect these rights.
Second, although it is true that the Charter is only one aspect of human rights protections in the UK, it nevertheless contains some rights that are protected to a greater degree under the Charter than they are under the European Convention on Human Rights. One notable example is Article 8 of the Charter, which protects the right to personal data, going beyond the protections found in Article 8 ECHR which protects the right to privacy. There is no mention in the White Paper of how these gaps may be filled to ensure that the removal of the Charter does not affect rights.
It would be wrong to classify the White Paper as ignoring human rights. The intention to preserve the interpretations of EU-derived laws stemming from the CJEU, which are influenced by general principles of EU law and the Charter, is to be welcomed. It will help to prevent an accidental erosion of EU rights as EU-derived laws become part of UK law post Brexit. However, it would also be wrong to say that all concerns over the protection of rights have been dealt with. There remains the dangerous combination of overly broad powers of delegated legislation, the need for speed to ensure a smooth transition and an already over-worked legislature. This could lead to rights being inadvertently eroded. Effective parliamentary scrutiny from both Houses, combined with clear legal limits on delegated powers, are needed to ensure a smooth transition does not erode rights.