The EU (Withdrawal) Bill raises complex human rights issues. The Joint Committee on Human Rights (JCHR) is scrutinising the European Union (Withdrawal) Bill. The Committee has written to the Secretary of State for Exiting the EU, David Davis, raising a number of questions concerning the human rights implications of the Bill.
Under the auspices of The Oxford Human Rights Hub, Director Sandra Fredman (Oxford University), Deputy-Director Meghan Campbell (University of Birmingham), Paul Craig (Oxford University), Alison Young (Oxford University), Stephen Weatherill (Oxford University) and Nicholas Bamforth (Oxford University) have made a submission assessing the impact of excluding the EU Charter from being part of UK law after exit day.
The report will be available in due course.
The Committee has posed the following questions to the Secretary of State:
Defining “Fundamental rights and principles”
Q1: What is the definition of “fundamental rights and principles” in clause 5(5) of the Bill? In particular:
- Does this term encompass all the provisions of the Charter?
- If not, can you please specify which provisions of the Charter are to be retained within domestic law and which are not?
- Which Charter provisions do you consider to be “rights” and which do you consider to be “principles”? What is the legal effect of this difference?
Q2: What will be the status of “fundamental rights and principles” in domestic law? For example:
- Are they part of “retained EU law”? If so, do they retain the status of supremacy by virtue of clause 5(2)? Can they be used to disapply primary and quash secondary legislation made before exit day? OR
- Are they merely retained by virtue of their original source? OR
- Are they sui generis – if so, how are they to be interpreted and applied?
Q3: Which “fundamental rights and principles” will be justiciable in domestic law post-exit, by what means, and what remedies will be available?
Q4: What is the relationship between “fundamental rights and principles” in clause 5(5) and non-justiciable “general principles” in Schedule 1 paragraph 3?
Q5: Please list the instruments which underpin the provisions of the Charter but which have not been incorporated into domestic law. Further:
- Does the Government intend to legislate to give effect to those instruments?
- If so, which instruments and on what timescale?
- What safeguards will be introduced to protect these rights from amendment, revocation or repeal under the Bill?
Q6: If the UK courts are instructed to “take into account” judgments of the European Court of Human Rights (section 2 Human Rights Act 1998) and may “have regard” to the CJEU case law pre-exit day (clause 6), how are they to proceed when there are diverging interpretations?