Four Reasons for Retaining the Charter: Part 4 – The Counter-Arguments and their Weaknesses
The previous three posts examined the reasons for retaining the EU Charter of Fundamental Rights in UK law after Brexit, focusing on its broader, more modern protection of rights, the better remedy it provides, and the way that preserving the Charter would provide for a clearer protection of rights which were enacted in a more democratic manner than the fundamental rights in EU law the Withdrawal Bill currently intends to preserve in UK law on and after exit day. This post examines the justifications provided for not retaining the Charter. Are they sufficient to defeat the four reasons we’ve provided for its preservation?
Scope of EU law
One of the arguments for not retaining the Charter is that its provisions only apply ‘within the scope of European Union law’. We saw this when we looked at Benkharbouche in an earlier post. Ms Benkharbouche could not rely on the Charter for all of her claims; she could only rely on the Charter for those claims that were derived from European Union law. The clearest example of this was her reliance on the Working Time Regulations, which incorporate the EU’s Working Time Directive into UK law. So, the argument goes, if the Charter only has effect within the scope of EU law, and the aim of Brexit is to remove the UK from the EU, then surely there is no need for the Charter to be retained on or after exit day.
The difficulty with this argument is that it applies to the same extent to the ‘fundamental rights or principles which exist irrespective of the Charter’. They too only apply in the UK when the legal case before the court is within the scope of EU law. So, if this provides a reason to not retain the Charter, does it not also provide a reason for not retaining the ‘fundamental rights or principles which exist irrespective of the Charter’?
The Charter merely consolidates existing rights
A further argument for not retaining the Charter is that it is superfluous. If it merely consolidates the fundamental rights that were already protected by EU law, then it is not needed. All we need to do is to retain those fundamental rights. However, as the final report on the European Withdrawal Bill of the Constitution Committee of the House of Lords remarks, this does not appear to provide a strong enough reason for refusing to retain the Charter. As discussed in the previous post, the Charter provides a clearer account of the fundamental rights protected in EU law. Certainty and continuity may be better served by retaining the Charter rather than by only retaining fundamental rights which exist irrespective of the Charter.
If, however, the Charter does add enhanced rights protection, then the policy objective of retaining continuity and certainty post Brexit would suggest that there are good reasons for its retention.
This is not to argue that all of the provisions of the Charter could be seamlessly incorporated into domestic law. In the Miller case, a distinction was drawn between different types of rights found in EU law. In particular, it was recognised that not all rights were capable of replication in UK law. Some of those rights relied on reciprocal arrangements between the UK and the other Member States of the EU (e.g. the right to move to and reside in another EU Member State) and others were specific to our EU membership (such as the right to vote in EU elections). If we are to retain the Charter, it is important to ensure that we think carefully about which rights can be replicated in UK law.
This is much easier to do with a Charter document than it is with a series of decisions of the Court of Justice of the European Union which protect fundamental rights. Moreover, the categories of rights in the Charter which could be retained or removed post-Brexit is also clearly intelligible. For example, Article 15 of the Charter provides that ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’. The Article then goes on to provide for the rights of citizens of the Union to seek employment and work in other Member States, and for those who do to enjoy the same working conditions as are applied to workers in those Member States. It is easy to separate out these two aspects of Article 15, which are dependent on reciprocal arrangements. A UK version of the Charter need not refer to these provisions, and further legislation could provide for whatever reciprocal arrangements are required by the Withdrawal Agreement with the EU, once reached. Similarly, it is clear that Article 39, which provides for citizens of the Union to vote for and stand as a candidate for elections to the European Parliament would not need to be replicated in UK law on or after exit day.
These issues of disentanglement do not just apply to the Charter. They apply to all aspects of retained EU law. Enacting legislation which specifically incorporates the Charter, after a process of filtering through rights, provides a better means of preserving rights and promoting certainty and clarity than the current solution found in the EU Withdrawal Bill.
My thanks to Haley Hooper for her comments on an earlier draft of this post.