Oh, What a Tangled Web We Weave… The EU (Withdrawal) Bill 2017-19 and Human Rights post Brexit: Part 2
In a blog post yesterday, I looked at the consequences of the EU (Withdrawal) Bill for human rights protection in the UK. In this post, I will evaluate what this means for individuals who want to enforce those rights currently recognised in EU law post-Brexit. It is clear that the added layers of complexity created by the Bill will make it more difficult to protect rights, requiring a fictional reclassification of references to the Charter as references to general principles, and a search for EU-derived legislation, EU direct legislation, or other directly effective provisions of EU law that have been interpreted in line with general principles of EU law. We can illustrate these complexities by analysing three recent cases in the UK where EU human rights laws were used to disapply national law.
In Benkharbouche, the applicant relied on Article 47 of the Charter, the right to an effective remedy and a fair trial. She relied on this as a free-standing right, to disapply a provision of UK legislation which had been interpreted as giving rise to a blanket ban for employment law cases brought where the employer was an Embassy. Under the new framework, there would simply be no such cause of action, and relying in the alternative on general principles of EU would not have helped, as they also cannot be used to give rise to a stand-alone cause of action, or to disapply legislation. Ms Benkharbouche may still have employment law rights derived from EU law post Brexit, but given the UK legislation, she would not be able to enforce them.
In the recent Supreme Court decision of Walker v Innospec, Walker relied on a Framework Directive, interpreted in line with the general principle of EU law of non-discrimination, to disapply a provision of national law which restricted the extent to which same-sex spouses could receive pension payments from pensions earned by their deceased spouse. That directive, interpreted in line with the general principles and incorporated into UK law by the Bill, could still be relied upon post-Brexit. It could disapply legislation enacted prior to Brexit, but not post Brexit. In other words, the UK post Brexit could enact legislation which would remove Walker’s right to ensure his pension could be passed on to his same-sex spouse.
In Google v Vidal-Hall, a Directive was interpreted in line with general principles of EU law, the ECHR and the Charter so as to require the payment of compensation for breaches of privacy, even when these breaches did not give rise to pecuniary harm. As UK legislation implementing the Directive could not be interpreted in line with the Directive, the provision of legislation restricting compensation to pecuniary loss was disapplied. As in Walker, the directive could still be relied upon, and interpreted in line with the general principles of EU law and the Charter, with references to the Charter being reclassified as references to general principles of EU law. However, difficulties arise due to the extent to which the CJEU refers to general principles and the Charter. In Google, arguably, the Charter right demanded a more specific consequence (financial compensation) than the general principle would have done. Would a post-Brexit UK court be content to read the reference to the Charter as, in effect, being a reference to general principles of EU law given their potential differential impact? Or would it see the Charter has going beyond general principles in this case, and only be prepared to apply EU-derived domestic legislation as interpreted in line with general principles? Moreover, Google v Vidal-Hall also relied on the ECHR. Will the UK courts still use the ECHR, as a general principle of EU law, when interpreting EU-derived domestic legislation and EU direct legislation? Or would the UK courts instead be required to decouple the ECHR from general principles of EU law and the Charter, only using the ECHR under the Human Rights Act 1998?
These cases show the confusion and uncertainty the Bill will bring for the protection of human rights. It seems odd to require the UK courts to act as if the Charter and the general principles of EU law always were one and the same thing. Moreover, the preference in the Bill for general principles over the Charter seems peculiar when cast in the light of some of the justifications for Brexit: they are imprecise, CJEU-generated values, over the creation of which the UK had no real say. The Charter, on the other hand, arose from a democratic convention process in which the UK participated. If the concerns of those who voted to leave were excessive CJEU power, and Britain having no control over its own laws, this choice seems strange.
As it stands, the European Union (Withdrawal Bill) 2017-9 poses, at least, four problems for the protection of rights. First, the lack of domestic effect of the Charter and the complexities that may arise from decoupling general principles from the influence of the ECHR could potentially reduce the range of rights protected in the UK.
Second, the inability of the general principles of EU law to give rise to a stand-alone legal cause of action reduces the scope of rights protections, requiring applicants to find EU-derived domestic legislation or direct EU legislation which has been read in line with general principles of EU law or the Charter.
Third, it limits the availability of the remedy of disapplication, which is by far the most effective remedy available in a claim based on the non-compliance of a statute with human rights law.
Finally, the confusion over the differing extents to which distinct aspects of EU human rights law can have effect will make it much harder in practice to rely on EU human rights, restricting access to those who can afford specialist legal advice and weather out a series of appeals as the courts work their way through the tangled web of rights protections post-Brexit.