The Transport Strikes (Minimum Service Levels) Bill, currently passing through the UK Parliament, seeks to establish minimum service levels for transport provision following widespread industrial action on the country’s railways. The UK government describes the Bill as necessary ‘to keep Britain moving during transport strikes’. While the legislation’s effectiveness has been questioned elsewhere, the Bill also raises several issues in relation to international human rights law, some of which will be the focus of this blog post.

The new Bill would end trade unions’ statutory protection against liability if, following the determination of a minimum service level, they fail to take reasonable steps to prevent strike action. It would also end workers’ protection from unfair dismissal where they strike in breach of a minimum service obligation. Failing agreement between unions and employers, the Bill provides that determinations as to minimum service levels are to be made by a government body, the Central Arbitration Committee.

This unilateral imposition of a minimum service level, enforced by removing workers’ protection from unfair dismissal, would necessarily limit the ability of workers to ‘freely exercise their right to organise’ under Article 11 of the International Labour Organization Convention 87 on Freedom of Association and Protection of the Right to Organise (ILO CO87). The UK is a signatory of both the ICCPR and ICESCR, and while the right to strike can be limited as prescribed by law, Article 22(3) ICCPR and Article 8(3) ICESCR expressly prohibit ‘legislative measures which would prejudice’ ILO CO87. The Bill also has potential to breach Article 399 of the post-Brexit EU-UK Trade and Cooperation Agreement, whereby the UK reaffirmed its commitment to comply with international treaties including the ILO conventions.

In addition to its international obligations, the UK is party to the European Convention on Human Rights (ECHR), which is binding in UK law by virtue of the Human Rights Act 1998. ECHR provisions would therefore also be likely to form part of any legal action against the Bill. Specifically, Article 11(1) of the ECHR provides that ‘[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.’

In Ognevenko v Russia, the European Court of Human Rights reaffirmed that Article 11 protects the right to strike. The Court held that ‘transport’ and specifically ‘railway services’ are not essential services, and that restrictions on transport workers’ right to strike would be disproportionate and violate the ECHR. While Ognevenko concerned absolute prohibitions on strike action, the Court in Urcan v Turkey held that restrictions that were likely to dissuade union members from taking strike action also violated Article 11.

Section 234C(5) of the new Bill provides that, when identifying a person to be subject to a work notice, ‘the employer must not have regard to whether the person is a member of a trade union’, paving the way for the inclusion of union members in minimum service provisions. By effectively dissuading workers from striking, a minimum service level that included union members would therefore violate the ECHR.

As an exception, Article 11 provides that states may derogate their obligations on grounds of ‘national security’. Schedule A2A of the new Bill thus expressly provides that national security is a ‘relevant matter’ when determining a minimum service level’s operation. Yet while states have a wide ‘margin of appreciation’ where security matters are concerned (Leander v Sweden, [67]), national security threats must nevertheless be ‘substantiated by specific examples’ (Vereinigung Demokratischer Soldaten Österreichs and Gubi v Austria, [38]; Konstantin Markin v Russia, [100]). In the absence of such evidence, a derogation of Article 11 resulting from a transport sector minimum service provision would likely be disproportionate and violate the ECHR.

Given the human rights issues posed by these measures, it now remains to be seen whether the new legislation can withstand any legal challenges in the domestic or Strasbourg courts. However, as the courts cannot strike down primary legislation under UK law, it must therefore fall to the political arena to prevent the Bill from becoming enacted.

Want to learn more?

• Read: Clause Seven of the Bill of Rights Bill: Diluting Rights Protection and Undermining Parliamentary Democracy 
• Read: Proposed Reforms to the UK Human Rights Act
• Read: The impact of South Africa’s employment law reform on the right to work

Categories of Risk to Rights

The UK’s framework of rights protection is a matrix of interrelated instruments, obligations, remedies which are supported by a wider multi-level institutional framework: from the common law, to the ECHR as incorporated by the Human Rights Act 1998 [HRA], to rights derived from the EU Treaties and EU Charter. The degree of protection and range of remedies available to these rights varies according to their source: for example, in the event of a violation of a right by primary law a Declaration of Incompatibility may be issued under the HRA, but under the EU Charter a court may disapply the law under the EU doctrine of primacy. Although rights may look similar on paper (for example freedom of expression in the ECHR and EU Charter) they are not necessarily the same or equivalent to another in their scope or protection. On this understanding, four categories of risk posed by the Brexit process can be identified:

By categorising risk in this way, it is easier to identify those rights in need of greater protection, but also to mitigate risk (in so far as is possible) in the removal of protections to rights through secondary instruments created under delegated legislative powers. More fundamentally, however, it is to acknowledge that a great body of rights – those which derive directly from EU membership and which cannot be replicated – will be lost.

(This blog post is based on “Rights and Remedies at Risk: Implications of the Brexit Process on the Future of Rights in the UK” [2019] Public Law 683.)

Assumption 1: Prorogation entails high policy

It is unsurprising that characterization of the case as involving high policy has featured prominently in the present litigation. It is a natural argument for government to make, the consequential contention being that the courts should not trespass on this political terrain. Asseveration is not however argumentation, nor does it constitute factual proof.

The reality is to the contrary. In the very great majority of instances, prorogation entails nothing akin to high policy, in the manner that this phrase normally connotes. It is merely a mechanism for ending one session of Parliament. There has to be some way in a political system to signal the end of a particular legislative session. There is no preordained way in which this should be done. There are multiple options available, depending on the country, the nature of its political system and its legal traditions.

In the UK, this is, for historical reasons, done through prorogation. Parliament’s website is instructive, stating that ‘in recent decades, when Parliament has met all the year round, the prorogation of one session has usually been followed by the opening of a new session of Parliament a few days later.’ The reasons for this are not hard to divine. The government has a self-interest in ensuring the continuity of its legislative programme and will not, therefore, consciously jeopardize this by allowing public bills to fail as a result of prorogation. It also has a self-interest in ensuring the continuity of its busy legislative agenda into the new session, which inclines towards short prorogation, so that it can be parliamentary business as normal thereafter.

Prorogation is, therefore, in most instances unproblematic, and not newsworthy. It is for this very reason that people do not march on the streets contending that prorogation is endangering democracy. There is no such danger, since it is merely the standard way of signalling the end of one parliamentary session, with no ulterior purpose.

There may be some question as to the precise date when it will occur, but this does not establish that prorogation systemically entails high policy. It does not. Nor does the fact that prorogation is, in a reductionist sense, political mean that it is a matter of high policy, or cannot be used for some improper purpose. That is a non-sequitur. There is nothing odd about a discretionary power that may be used for an improper purpose. Courts grapple with these issues in judicial review the whole time. The application of established principles of judicial review concerning propriety of purpose is not especially difficult in this instance.

Assumption 2:  It is impossible for a court to intervene in relation to prorogation because there is no acceptable legal test that does not entail unwarranted intrusion on the political terrain

This second assumption is readily apparent in the cases concerning prorogation thus far. It is, with respect, misconceived. Courts do not write doctoral theses. They decide the cases that come before them. They decide cases one at a time. They must fashion a ratio that is fitting for the case that comes before the court. It is for the court to decide how broad or narrow that ratio should be. The assumption underlying the opposition to judicial review in the instant cases is that the court must be able to formulate a general principle concerning legal intervention in relation to prorogation that will cover all conceivable hypothetical instances where the issue might arise. There is no warrant for this. We do not demand this of courts in other instances. To the contrary, courts reason by analogy, normally and wisely beginning with relatively narrow propositions and moving outward therefrom insofar as this is warranted.

This approach is readily applicable in the instant case. A narrow ratio would be as follows: it is an abuse of the prerogative power of prorogation to use it intentionally to curtail the opportunity for parliamentary engagement, through legislation, debate or scrutiny, on an issue of major public importance, more especially where determination of the salient issue is subject to strict temporal limits.

This constitutes an improper use of the power of prorogation for two related reasons: the power is, by definition, being used for an objective other than the simple closure of a parliamentary session; and the use of the power in this manner entails infringement of the principles of parliamentary sovereignty for the reasons made clear in my earlier posting.

Counter-factual reasoning can be instructive. Consider then for those minded to oppose this hypothetical ratio, the nature of the arguments that might be advanced in this regard. Any such argument would, by definition, mean defending the proposition that it is constitutionally lawful and legally unchallengeable for the government to use the prerogative power in this manner.

If we accept such an argument then we recast the boundaries of Parliamentary sovereignty as traditionally conceived. Parliament remains omnipotent, in the sense that there are no bounds to its legislative authority, but the executive can determine when Parliament exercises that legislative authority. It can choose to prorogue Parliament whenever it so wishes, including in order to prevent Parliament exercising its voice, though legislation or otherwise, merely because the executive believes that what Parliament might do is undesirable. The executive’s decision in this respect is legally unchallengeable, irrespective of the ground on which the prorogation decision is based. If this represents the law then every text book, article and essay on constitutional law has missed this crucial qualification to the sovereignty of Parliament.

It would perforce be for the claimant to prove that the government had misused its power, but there is a very great deal of evidence available as a matter of public record attesting to the government’s willingness to resort to prorogation for this purpose, and attesting also to the fact that it was used for this purpose. The fact that the government attempted at the 11^th hour to defend the use of prorogation on the ground that it was designed to facilitate introduction of the PM’s new legislative agenda makes no sense for the reasons identified in my previous blog. The argument could, in any event, be assessed in accord with standard tools of judicial review, designed to test the soundness of factual and evidentiary assumptions. The government’s claims in this respect do not warrant immunity from proper scrutiny. To countenance this would be an abnegation of judicial responsibility.

Assumption 3: Prorogation is unproblematic because Parliament has already exercised its legislative authority

The third assumption is that legal intervention is unwarranted because there are no adverse consequences from prorogation, given that Parliament has managed, in the time available, to enact legislation to limit the possibility of a no-deal Brexit in the form of the European Union (Withdrawal) (No 6) Bill 2019, which is awaiting royal assent at the time of writing. There are two flaws in this argument.

First, as Alexandra Sinclair and Joe Tomlinson, prorogation has very serious consequences for enactment of the primary legislation and statutory instruments required to render UK law fit for purpose by exit day. The idea that Parliament’s legislative function during prorogation is exhausted by passage of legislation to limit the possibility of a no deal Brexit does not, therefore, withstand examination.

Second, it is mistaken to think of sovereignty as only relevant to statutory outcomes. Parliament is the source of discursive debate on the floor of the House and in committees, as well as political accountability and scrutiny through Select Committees. To be clear, it is not that sovereign status attaches to a debate or resolution, it does not, but that is to miss the point. Parliament’s engagement in such activities is an essential feature of its sovereignty. It is through such debates/scrutiny, that it can determine what is in the best interests of the country, and whether that is best achieved through legislation or in some other way. Prorogation that is designed deliberately to take Parliament out of the game in order that the executive can pursue its desired ends, thereby precludes parliamentary voice, discourse and scrutiny for the period of the prorogation.

Constitutional Principle and Law

We begin with constitutional principle and law. We seek to decide whether the courts should intervene via judicial review, in order to prevent Parliament from being prorogued. We do not, however, begin with a clean slate. We look to case law where the courts have intervened to curtail prerogative power, discern the underlying principles, and then decide whether those are applicable to the case at hand.

Consider then the principal case law concerning constraints on prerogative power dating back to the seventeenth century. The constraints on prerogative power embodied in Proclamations, De Keyser and Miller all protect parliamentary sovereignty. Parliament is the legitimate legislator within the UK and the case law protects that authority from being undermined. If the executive could change the law of its own volition, it could thereby bypass legislation without amendment or repeal, hence the principle in Proclamations. If the executive could use the prerogative where Parliament had already addressed the issue in an existing statute it could then avoid the legislation crafted by Parliament, hence the principle in De Keyser, and its extension to cases where the prerogative would frustrate the legislation. If the executive could render a constitutional statute devoid of effect through recourse to the prerogative, the statute would not be worthy of that appellation, hence the reasoning on this issue in Miller, drawing on that in HS2.

Proclamations protects parliamentary sovereignty directly, by preventing recourse to the prerogative where it would change the law. De Keyser and Miller protect sovereignty indirectly: the former by precluding use of the prerogative where the formal law is left intact, but the executive seeks to circumvent it by use of the prerogative; the latter case by preventing a constitutional statute from being emasculated through executive action, even if it remained formally on the statute book.

The salient issue in relation to prorogation is whether the Prime Minister’s discretionary power should be limited pursuant to the principles underlying the case law set out above. The argument for an affirmative answer is compelling. This is so for two related reasons.

First, to contend that there is some difference between the existing case law and the present situation does not withstand normative examination. The reality is to the contrary, the rationale for intervention to protect parliamentary sovereignty is even stronger than in the preceding cases. Consider the following two propositions. Parliament has enacted a statute, the executive seeks to circumvent it by recourse to the prerogative, and the court intervenes to protect parliamentary sovereignty via the De Keyser principle. Parliament wishes to exercise its legitimate authority through enactment of a statute, or in some other way, the executive precludes this through prorogation, and the court is said to be powerless to intervene.

This distinction makes no principled sense, more especially because the latter abuse of discretionary power is more far-reaching and significant than the former. The former impacts only on a particular statute. The latter constitutes a pre-emptive strike that takes Parliament out of the entire game for the crucial period during which it is prorogued. It affects not merely one piece of legislation, but its capacity to exercise the totality of its legislative authority, thereby severely curtailing the opportunity for parliamentary voice on an issue that, whatsoever one’s views about Brexit, is of major importance for the UK’s future. This is, moreover, the reason why judicial intervention in this instance would not signal some general judicial intrusion in this terrain. The use of prorogation in this instance is singular, and warrants judicial intervention.

Secondly, the case for judicial intervention is also compelling because of the impact of the abuse of power in relation to prorogation on the sovereignty principle itself. The sovereignty of Parliament is the foundational principle underlying the unwritten UK constitution. This sovereignty resides with Parliament, not with the executive. Compare once again the preceding scenarios, and their relative impact on this foundational principle. The De Keyser scenario represents a challenge to sovereignty, since the executive seeks to bypass an existing statute, through recourse to the prerogative. It was for this very reason that the House of Lords intervened to prevent this. The prorogation scenario is more far-reaching in its impact on sovereignty. The reason is not hard to divine. The political discussion of prorogation by the present government was predicated on the assumption that it could be legitimate for the Prime Minister to make use of this power intentionally to bypass what was felt to be a recalcitrant Parliament. This is not and cannot be constitutionally correct. To subscribe to such reasoning per se diminishes parliamentary sovereignty as a foundational principle, and transforms the UK constitutional order such that the cards become stacked in the executive’s favour.

Nor can such reasoning be defended on the ground that the Prime Minister believes that this use of prorogation would be justified in order to fulfil the will of the people. Let us leave aside the fact that the Prime Minister presently has the slender legitimacy that comes from a vote of 92,000 Conservative members; let us leave aside also the fact the divination of the will of the people in terms of being content with a no-deal Brexit is fraught with difficulty. The root problem with this reasoning is more serious, and betrays a deeper lack of understanding of our constitutional order. The sovereignty principle inheres in Parliament and the totality of members thereof at any one point in time. The very idea that Parliament can be swept aside because its view does not cohere with the executive is to stand principle on its head. We are constitutionally impoverished if we regard this as the new constitutional norm.

Fact and Causation

There is no doubt that supporters of prorogation will attempt to blunt the preceding argument by repeating the claim that it was not driven by the desire to forestall discussion of Brexit, but because the Prime Minister wished to press ahead with his new agenda, and did not wish to wait until after the presently existing Brexit deadline. This is then coupled with the argument that the present parliamentary session has been very long, and that it is legitimate to signal the new beginning with the Queen’s speech scheduled for mid-October.

A response to this argument, voiced by many in the aftermath of the prorogation announcement, is simply to regard it as a veneer that conceals the real reason for the prorogation, which is to limit the time for parliamentary voice on Brexit. Truth to tell, there have been government statements post the prorogation announcement that acknowledge its impact on the domestic Brexit agenda, and that in Brussels.

A second response would be that, even if we assume that the desire to press ahead with a new agenda represented reality, the costs in terms of the impact on parliamentary sovereignty are simply far too great, more especially at this crucial time for Brexit deliberations. Indeed, one could press further in this regard: given that the present parliamentary session has lasted a long time, a few more weeks would hardly make a crucial difference in terms of getting the Prime Minister’s new agenda on the road.

The third response is that the preceding argument makes no sense in its own terms. Consider the following. We have a fact, the Prime Minister’s statement that he wishes to press ahead with his new agenda. We have assertion of a second fact, prorogation is said to be necessary to enable the first fact to happen. There is assumed to be causation between the two. This assumption is a non-sequitur. If the Prime Minister wishes to kick start his new agenda now, there is nothing legally or politically to prevent him from instructing civil servants in the relevant departments from pressing on to draft the requisite legislation, sort out the finances and the like. They were probably already doing this before prorogation. The reality is not merely that the causation is lacking. It is that prorogation will almost certainly hamper prime ministerial efforts to roll out the new agenda. If prorogation occurs, Parliament does not sit, no legislation is enacted, and there is a danger that some necessary Brexit legislation will be lost or impeded because of prorogation. If Brexit happens there will then be a log-jam of Brexit-related measures that require enactment, thereby pushing into the long grass efforts legislation designed to address non-Brexit issues.

On 23 May 2019, District Judge Margot Coleman handed down written reasons determining that the case was a proper one in which to issue a summons (not making findings of fact or as a trial court). The judge considered: (1) whether the offences were known to law (yes, under the common law); (2) whether the ingredients of the offence were prima facie present (below) (3) whether the prosecution was vexatious (the judge decided it was not).

The Legal Basis

Misconduct in public office is an unusual basis for prosecution. The offence is also currently subject to review by the Law Commission. In AG’s Reference (Number 3 of 2003) [2004] EWCA Crim 868 it was held that the offence included the following elements. It is committed by a

• public officer acting as such who
• wilfully neglects to perform his duty and/ or wilfully misconducts himself
• to such a degree as to amount to an abuse of the public’s trust in the office holder
• without reasonable excuse or justification.

The Law Commission has noted the absence of definition throughout the offence. It also questions the significance of the requirement that a public officer be “acting as such”. It is therefore notable, that with regard to (a), the judge considered detailed argument for Mr Johnson that the conduct alleged was not part of him “acting as” a public official and that campaigning would not have the necessary link with “the actual duties and powers of the public offices concerned”. The judge was satisfied that there was prima facie evidence.

Element (b), “wilful”, refers to deliberate or reckless conduct. The prosecution contend that there is “ample evidence” that Mr Johnson knew the statement was false (At a future trial it may be relevant that consequences of the alleged conduct, although not an ingredient of the offence, require consideration in determining whether the conduct falls far below the expected standard). The judge was satisfied that there was prima facie evidence noting: “I accept that the public offices held by Mr Johnson provide status but with that status comes influence and authority”.

As to (c), the degree of trust, the judge noted the high threshold required. The allegations were that the conduct “was a huge lie calculated to mislead the electorate”. For Mr Johnson it was contended that the required threshold was not met. The judge was satisfied that the element was prima facie satisfied. In relation to (d), the judge was also satisfied as to the prima facie evidence that the statements had been made “without reasonable cause or justification”.

 The Next Stage

The alleged offences are only triable in the Crown Court. Mr Johnson is now expected to appear at the Magistrates’ Court for a preliminary hearing and then the case will be sent to the Crown Court for trial. It is probable that Mr Johnson will initially seek to challenge the District Judge’s decision via a ‘case-stated’ appeal to the High Court on a point of law (Magistrates’ Courts Act 1980, s.111).

Mr Ball hopes the prosecution may result a landmark legal case about the conduct of public officials during elections. So far, the courts have notably refused permission for judicial review in “Brexit” cases on judicial review (e.g. R (Webster) v SOS for Exiting The European Union, [2018] EWHC 1543 (Admin); R (Wilson) v Prime Minister [2019] EWCA Civ 304). However, in this case, the District Judge’s determination is clear and the public interest is high. If the case proceeds, it will throw the development of the law in this area firmly into the spotlight.

The independent Group was encouraged to be bold and ambitious. Its work was driven by three key principles: to ensure, as far as possible, non-regression from current EU rights; to keep apace with future EU rights developments; to take leadership in the protection and promotion of all human rights.

Scotland is certainly entitled to distinguish itself from the rest of the UK in relation to human rights, which is an area of devolved policy.  Furthermore Scotland’s people voted resoundingly to remain within the EU, giving the Scottish Government a political mandate to push for the preservation of current EU protections. However, the relationship between international human rights and domestic equality law is a complex one, made more so under current devolution arrangements. Although Brexit undoubtedly poses great risks to those equality and employment protections underpinned by EU law, Scotland’s hands are somewhat tied by the reservation to Westminster of both areas.

The report’s main recommendation is that the Scottish Parliament should bring forward an Act setting out the rights belonging to everyone in Scotland, consolidating the protections provided by the Human Rights Act alongside the economic, social, cultural and environmental rights drawn from UN treaties. This would be the first step towards a model of incorporation, starting with the imposition of a ‘due regard’ duty on public authorities and culminating in compliance with appropriate enforcement mechanisms. This approach is intended to give everyone in Scotland meaningful access to justice in relation to those rights currently provided by international law.

Central to this ambitious plan is a process of engagement and public participation in both the Act’s preparation and its implementation which would be further boosted by capacity building within Scotland’s public authorities and other relevant organisations. Responsibility for enforcement would ultimately rest with the Scottish Government through a proposed mechanism for monitoring, reporting and implementation and the development of human rights indicators as part of Scotland’s National Performance Framework. The establishment of a National Task Force to lead the process is proposed. Finally, the door is left open to any further devolved powers to be integrated into the framework with, if Scotland were to become independent, a written constitution including a bill of Rights for Scotland proposed.

The Report has been positively received. The establishment of the task force has been announced as the first step towards implementation of its wider recommendations. Collaboration is key and the Scottish Government already has processes in place for community engagement and clear aspirations for a system of open government but is Scotland really so different from the rest of the UK in relation to human rights? Whilst the political vision and ambition are certainly distinctive, as the EHRC’s recent report shows, Scotland remains a very unequal society.

The work of the First Minister’s Group is only the start of a long and challenging process. Scotland is as susceptible as the rest of the UK to the damage that a no deal or hard Brexit could inflict on the equality framework and has only limited legislative power in this respect. The complexity of the constitutional arrangements inevitably limited the scope of the Group’s recommendations, although the door is left open to future change. The First Minister has recently stated that she will reveal her plans for a second independence referendum “in the coming weeks”. What that could mean for human rights in Scotland and in the rest of the UK remains to be seen.

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.

The European Union (Withdrawal) Bill (EUWB) is the flagship Brexit legislation introduced to Parliament on 13 July 2017. Arcane and convoluted scarcely grasps the nature of this piece of legislation, especially after passage through both Houses, with a concomitant accretion of amendments, reorderings and changes in the numbering of clauses. It is, however, worth stressing that the purpose of the EUWB is not to decide the terms of Brexit (currently being negotiated in Brussels), but to ensure it can be implemented effectively in domestic law and that legal certainty, essential for all, is maintained. Taking time to examine this legislation properly is not blocking or hampering Brexit. If it is not thought through carefully, there will be damage to the economy, society and security, not to mention to rights, freedom and democracy. Regrettable then, that consideration of these Lords’ amendments was constricted into only 12 hours of Commons time. This left almost no time for debate on the substance of most amendments.

I find it easiest to group the Lords’ amendments under 6 (loosely defined) headings: the meaningful vote for Parliament; those concerning rights (especially the EU Charter); the issue of amending/repealing retained EU Law and further parliamentary scrutiny; amendments which concerned the UK’s relationship with the EU (eg whether the possibility of a customs union should be left open); those concerning Northern Ireland; and finally, whether the UK’s exit date should be fixed in legislation.

This blog focusses on the fundamental rights implications of the EUWB amendments. However, the ‘Meaningful vote’ for Parliament was considered by many to be the most consequential of the amendments, as it was designed to strengthen Parliament’s role in the Brexit negotiations. In the event, despite much hyping of a meaningful vote, a government defeat was avoided on this issue, because Tory rebels accepted last minute personal assurances from the Prime Minister – assurances whose efficacy barely lasted one day, when soon after, Downing Street appeared to backtrack. Denying a meaningful vote to Parliament would however appear to undermine a key aspect of Brexit, which was supposed to be about taking back control, empowering the Westminster Parliament. This issue has certainly not gone away and will be will redebated this week as the EUWB is reconsidered in both the Lords and Commons.

All of the other Lords’ amendments were rejected by the House of Commons (or in a couple of cases replaced by Government amendments). A cluster of Lords’ amendments related to maintaining important fundamental rights endowed on the UK by EU law, and votes on these took place last Wednesday. As Vernon Bogdanor has argued, perhaps the most notable feature of Brexit is that it transforms the UK from a protected (because it entrenches EU rights) Constitution to an unprotected one (because the special protections of EU law will be abolished and EU Charter of Fundamental Rights not retained in the UK). There will be no special constitutional protection in the UK for rights such as equality rights. The House of Lords had attempted to remedy this, most notably through crossbencher Lord Pannick’s amendment to transfer the Charter of Fundamental Rights into domestic law. However, the Government wishes to exclude the Charter, arguing it merely repeats much UK law. This is highly debatable, as many Charter rights are protected neither by the Common law nor by the UK’s Human Rights Act (for example rights to data protection, especially important in the Big Brother era of surveillance; many workers’ rights, and many aspects of the right to equality). They therefore become especially vulnerable to repeal after Brexit.  A further Lords’ amendment to provide enhanced scrutiny for secondary legislation that would amend or repeal retained EU law relating to employment and equality rights, health and safety protections, and consumer and environmental standards, also failed to be sustained in the Commons. So much for protecting workers’ rights and a ‘jobs first Brexit’.

At present, rights guaranteed under EU law benefit from its supremacy over national law, and the strong remedies EU law provides – in some cases requiring setting aside of conflicting national law. After Brexit, rights currently guaranteed by the Charter will be at the mercy of Parliament or even of ministers using secondary legislation, which can amend or delete them. This means that the status of those rights will be fundamentally different, and they will no longer be protected. It is truly unusual, perhaps unprecedented, for a democracy to withdraw from a major international human rights regime, to shed the special protections of EU rights law, as the UK is doing with Brexit.

In contrast to the House of Lords, MPs are behaving in a submissive fashion. This means the elected House is failing to resist provisions in a Bill that will transfer a huge amount of power to government to amend or repeal legislation, with very little or no room for parliamentary scrutiny. They are also permitting the weakening of rights protection and enforcement, and failing to scrutinise and render government accountable. This is to be deplored.

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.

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.

Disentangling rights

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.