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In yesterday’s White Paper, the Government announced that the EU Charter of Fundamental Rights will not be converted into law by the Great Repeal Bill, on the basis that it “cannot be right that the Charter could be used to bring challenges against the Government, or for UK legislation after our withdrawal to be struck down on the basis of the Charter” (para 2.23). The Government, it appears, does not wish to have the rough with the smooth.
The White Paper’s summary of the Charter is at least accurate, insofar as it describes it as being “not designed to create any new rights or alter the circumstances in which individuals could rely on fundamental rights to challenge the actions of the EU institutions or member states in relation to EU law” but rather intended to make the rights “that already existed in EU law more visible by bringing them together in a single document” (para 2.24).
However, the White Paper is on more uncertain ground when it proclaims that the removal of the Charter “will not affect the substantive rights that individuals already benefit from in the UK”, claiming that “many of these underlying rights exist elsewhere in the body of EU law which we will be converting into UK law”. As EU law is “converted” into UK law by the GRB, the White Paper predicts that it will “continue to be interpreted by UK courts in a way that is consistent with those underlying rights”. Rights will still be relevant to case law, but the reference will be “only to the underlying rights, rather than to the Charter itself” (para 2.25).
While it is true that the Charter is a compendium of existing rights under EU, drawn from a number of different sources, it hardly follows that its removal won’t affect “the substantive rights that individuals already benefit from in the UK”, not unless you grant the rather dubious premise that rights under the Charter aren’t themselves substantive rights under UK law.
The reality is that, although the Charter contains a great many rights that the UK had already signed up to by way of various international human rights instruments (including the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, and the UN Convention against Torture, just to name a few), very few of those rights are enforceable (other than by way of the Charter itself) because they were never incorporated into domestic law. Although the government’s obligations under those instruments can sometimes affect the interpretation of primary legislation, the orthodox position remains that they can’t therefore create rights or impose duties.
The notable exception here is, of course, those ECHR rights which have been incorporated into UK law by way of Schedule 1 of the Human Rights Act. To this extent, the White Paper affirms that the UK’s withdrawal from the EU “will not change the UK’s participation in the ECHR and there are no plans to withdraw from the ECHR” (para 2.22). Plans to amend the HRA itself have been quietly shelved for the time being. It seems, therefore, that any EU measures which the Great Repeal Bill transfers into UK law will continue to be subject to challenge for compatibility with Convention rights under the HRA for the time being.
The overlap between the Charter and the Convention is itself addressed in article 52(3) of the Charter, which provides that – where there is an overlap – “the meaning and scope of those rights shall be the same as those laid down by the said Convention”. But article 52(3) also provides that the overlap between the ECHR and the Charter “shall not prevent Union law providing more extensive protection”, and in many places the Charter does go further than the Convention. The right to a fair trial under Article 6 ECHR, for instance, does not apply to all civil proceedings but only those which involve “the determination of … civil rights and obligations”, a phrase which has been held to exclude such things as immigration and asylum cases, or a challenge to a local authority’s refusal to house a homeless person. Article 47 of the Charter, by contrast, has no such limitation.
These are not the only rights which will be lost under the White Paper’s proposals. There are, for instance, those Charter rights that reflect rights in protocols which the UK government has not signed up to, such as the prohibition against being tried twice for the same crime under Article 4 of Protocol 7, but which has force in the UK vis-à-vis EU measures under article 50 of the Charter. Or the right to an effective remedy under article 13 ECHR which simply doesn’t appear in Schedule 1 of the Human Rights Act. There are the many Charter rights which don’t appear in the text of the ECHR, but which the Strasbourg Court has from time to time recognised as being implicit: e.g. the right to human dignity under article 1, the right to data protection under article 8 of the Charter, or the principle of academic freedom under article 13. These rights may continue to be protected to some degree under the HRA but plainly the precise extent will be the subject of extensive satellite litigation. And then there are those Charter rights which the Strasbourg Court has simply never grappled with, such as the prohibitions against eugenics and reproductive cloning in article 3(2) of the Charter.
Plainly, with the UK’s withdrawal from the EU, some of the rights contained in the EU Charter necessarily fall away, such as the right to vote and stand in elections for the European Parliament under article 39. But it seems ambitious, to put it politely, to suppose that the UK can transfer or transpose the entire corpus of EU law into UK law without affecting the balance between rights and obligations contained within those laws.
As it stands, the White Paper proposes keeping the obligation to obey a vast realm of rules and regulations derived from EU law but jettisoning the fundamental rights that go with them. As Lord Bingham once said, it is the kind of unfairness that would be apparent to even a child. The White Paper suggests that the courts will still be permitted to have regard to the ‘underlying rights’, but it seems unlikely that the courts themselves will welcome so much digging through the substrate. The risk for the government is that the courts may shortcut the excavations and resort to alchemy instead, declaring those rights previously contained in the Charter are now common law rights in any event. That would still leave a significant shortfall in the effective protection of the former Charter rights, but it would demonstrate the continuing supremacy of at least one body of law, namely that of unintended consequences.