Co-authored with Emily Holland
Nearly two weeks after the Leave vote the contours of a post-Brexit world are far from clear. We examine the repercussions of the referendum on human rights law in the UK in this week’s blog post.
Current state of play
Human rights in the UK are presently protected by three main regimes that work in parallel: the common law protection for human rights; the Human Rights Act 1998 (HRA), which gives effect to the protections provided by the European Convention on Human Rights (ECHR); and the human rights protections derived from EU law, which are mainly reflected in the Charter of Fundamental Rights (CFR).
As previously discussed, the ECHR is a treaty signed by the 47 member states of the Council of Europe and enforced by the European Court of Human Rights in Strasbourg (ECtHR). It contains rights – primarily civil and political – that form part of the general principles of EU law.
The CFR is the 28-member EU’s human rights treaty and codifies civil, political, economic, social and cultural rights for EU citizens and residents and is enforced by the Court of Justice of the European Union in Luxembourg (CJEU). To date the three regimes have afforded UK individuals and businesses the power to challenge laws and regulatory actions on either procedural or substantive grounds.
Going forward, the common law, the HRA and ECHR will be unaffected by Brexit due to the domestic basis of the common law, the HRA being a domestic statute, and the ECHR being an instrument of the Council of Europe, entirely distinct from the EU. Assuming that the UK’s Brexit negotiations lead to it withdrawing from the Charter, however, Brexit could mean that EU-based human rights protections (including the CFR) would cease to apply in the UK.
This is significant: while the ECHR lies behind many of the general principles of EU law, the CFR is broader in scope, capturing as it does rights enumerated in the ECHR, the constitutional traditions of EU member states, the case law of the CJEU, and other international instruments to which the EU or its member states are signatories.
In addition, the HRA – and thus the application of the ECHR in the UK – could well be impacted by government plans to consult on repealing the HRA and replacing it with a British Bill of Rights, as we have previously opined on. The timeline for a British Bill of Rights consultation and proposals is unknown, as well as the extent to which the ECHR would be reflected or not, but one can expect a lengthy deliberative process.
Range of possible outcomes
The EU’s Brexit Task Force is currently engaging in a post-referendum examination of options in an effort to decide what the UK’s future relationship with the EU should look like. As above, because many EU human rights protections are also found in the ECHR or at common law, they will continue to apply no matter what model is ultimately adopted – meaning that the impact of Brexit on human rights protection is likely to be limited. Given that the CFR will not apply under either option, however, Brexit could affect human rights protections in various ways:
1. Narrower range of protected rights
Core political rights such as freedom of speech and freedom from torture are protected by both the EU and non-EU instruments that currently apply to the UK. But the CFR offers a wider set of social and economic rights than the ECHR, such as the rights to fair and just working conditions (Article 31), to healthcare (Article 35), and to personal data protection (Article 8).
These rights are either not found or only found to a limited extent in other instruments (i.e., the ECHR includes provisions relating to healthcare but does not guarantee a right to healthcare or to be healthy as the ECR does). In addition, where rights overlap between the CFR and ECHR, the CJEU has in certain circumstances provided greater protection. For one reason, the CFR includes a non-regression clause that states the CFR may not be interpreted as restricting or negatively affecting the human rights enumerated in the ECHR.
2. Reduced protection of human rights by way of judicial review challenges to primary legislation
Until Brexit, primary UK legislation found to be contrary to human rights could be struck down by UK courts if it fell within the “material scope” of EU law and was found to be contrary to EU law, which includes CFR protections. Practically speaking, prior to Brexit and in a field regulated by the EU, it was in principle open to a private individual, company or organization to challenge an act of the UK Parliament if it was incompatible with EU fundamental rights before the UK courts.
Conversely, one could in some circumstances challenge an alleged breach of rights by an EU institution or an EU Member State before the CJEU itself. That court’s role it is to clarify European law and ensure that it is applied uniformly across member states, which more frequently means settling legal disputes between national governments and EU institutions.
Brexit would remove both avenues. Under UK common law, judges may not strike down legislation. The HRA does not grant courts any power to strike down laws. Instead, under the HRA judges may only issue a “declaration of incompatibility” in relation to primary legislation, leaving it to Parliament to decide how best to respond.
UK individuals, companies and organizations would additionally no longer be able to bring a case before the CJEU based on the UK’s no longer belonging to the EU. And while leaving the EU will not exempt the UK from the decisions of the ECtHR, which is not an EU institution and which the UK Government has agreed to be bound by, HRA repeal coupled with possible measures to enhance the powers of courts in England and Wales could affect the dynamic not to mention the fate of UK legislation enacted in response to judgments of the ECtHR.
3. UN Guiding Principles and beyond
As to what, if any, effect Brexit may have on the UK’s progress toward encouraging companies to respect human rights, and to tackle human rights-related issues including modern-day slavery in their supply chains, the UK has been in the driver’s seat with respect to implementing the UN Guiding Principles so our assumption at this stage is not much.
In 2009, the UK was the first country worldwide to launch a national action plan on business and human rights and to establish guidance for companies on how best to integrate human rights into their operations. In 2013, amendments to the UK Companies Act required larger UK companies to include information about human rights risks and impacts in their strategic reports.
The UK recently concluded a public consultation on the UK’s implementation of the EU Directive on disclosure of non-financial and diversity information, which will apply to certain large companies and introduce European-wide disclosure requirements relating to (among other things) respect for human rights. The UK government has finally demonstrated willingness to go far on its own, implementing the UK Modern Slavery Act in 2015, under which businesses must conduct human rights due diligence to tackle slavery and trafficking in their supply chains. And two months ago, the UK’s Equality and Human Rights Commission released a guide to help UK boards demonstrate leadership in bringing their businesses into Ruggie compliance.
Much remains to be seen, of course, and we will continue to watch this space.