Four Reasons for Retaining the Charter Post Brexit: Part 1 – A Broader Protection of Rights
This series of short blog posts will argue that there are four main reasons for allowing the EU Charter of Fundamental Rights to continue to have domestic effect in UK law. First, it provides a broader scope of rights than either the ECHR or the common law. Second, it provides a better remedy for a breach of rights. Third, to retain the Charter provides greater clarity as to the extent to which human rights are protected in the UK. Fourth, the Charter provides for a protection of rights that has more democratic credentials than either the common (judge-made) law, or the ECHR. The final blog post will explain why the Government’s main argument against retention of the Charter – that it only applies within the scope of EU law – does not provide a justification for removing the Charter from domestic law.
A broader protection of rights
There are four main ways in which the Charter provides a more modern and a broader protection of rights. First, the Charter provides specific protection for rights that are not currently clearly provided in the ECHR. The clearest example of this is Article 8 of the Charter, which states that ‘everyone has the right to the protection of personal data concerning him or her’. It also states that ‘everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified’ as well as requiring that the compliance with these provisions be subject to ‘control by an independent authority’. This provides a much clearer and specific right, going beyond protections found in English common law and under Convention rights protected by the Human Rights Act 1998.
Second, the Charter provides a clearer specification of rights which might be within the scope of Convention rights or the common law, but where uncertainty persists both as to the existence of the right and its scope. This is particularly true of non-discrimination. Article 21 of the Charter prohibits ‘discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. Whilst some of these are protected characteristics under the Equality Act 2010, not all enjoy this protection. Moreover, Article 14 ECHR only prevents discrimination in connected to other Convention rights, requiring individuals to explain how their discriminatory treatment relates to a Convention right – normally Article 8 ECHR whose scope can be particularly difficult to determine.
Third, the Charter helps to condition the legislative process to be “rights-centric”, prompting and guiding legislation. This can be seen, for example, with regard to workers’ rights, where Article 27 protects the workers’ right to information and consultation and Article 28 provides for the right of collective bargaining and the right to take collective action. The first has to be protected under conditions provided by Community law and national law and the second in accordance with Community law and national law and practices. These rights provide a framework to encourage legislatures to act, providing protection for these rights, perhaps ensuring that legislation is enacted despite a pressured legislative timetable. Similar provisions apply for the entitlement to social security benefits and social services (Article 34); preventive health care and medical treatment (Article 35); environmental protection (Article 37) and a high level of consumer protection (Article 38).
Finally, unlike the Human Rights Act 1998 or the common law, the Charter sets a framework for the interpretation of the rights it contains. Article 1 of the Charter states that ‘Human dignity is inviolable. It must be respected and protected’. Article 52 allows rights to be restricted, but only when such restrictions ‘respect the essence’ of these rights and freedoms, are proportionate restrictions and where such restrictions are necessary and meet a ‘genuine objective’, or are required ‘to protect the rights and freedoms of others’.
These four differences are important. It is not just the case that the Charter provides a broader protection of rights. It does so in a way that provides a clearer account of the rights individuals enjoy, making it easier for individuals to protect their rights, and respect the rights of others. It also prompts legislation to further refine and enhance the protection of rights, and provides guidance as to how these rights should be interpreted and protected by the courts. All of these benefits may be lost in a post-Brexit world which may protect these rights as independent ‘fundamental principles’; but which would do so in a manner that loses the certainty, guidance, and prompts for legislation provided by the Charter.
My thanks to Haley Hooper for her comments on an earlier draft of this post.