By Mark Elliott, Stephen Tierney and Alison L Young
UK citizens currently enjoy a range of interlocking and overlapping protections of rights from three different sources: the European Convention on Human Rights, incorporated through the Human Rights Act 1998 (HRA); the common law; and the European Union’s Charter of Fundamental Rights and Freedoms (Charter), as well as fundamental rights recognised as general principles of European Union law. These sources have varying contents. The common law, for example, can protect rights that go beyond Convention rights as currently interpreted by the European Court of Human Rights and the Charter provides a more modern, broader protection of rights than the European Convention on Human Rights (ECHR). They also apply in different fields. The Charter and general principles of European Union law only apply within the scope of EU law – i.e. when the issue before the court concerns EU law, or an area of law in which the EU has acted.
If that were not confusing enough, the three sources of fundamental rights also provide different remedies. Under the HRA, it is unlawful for a public authority to act contrary to Convention rights, meaning these unlawful actions can be quashed (section 6). As for legislation, the HRA requires courts to read and give effect to legislation in a manner compatible with Convention rights, so far as it is possible to do so (section 3). When this is not possible, the High Court and above may issue a declaration of incompatibility (section 4). These declarations of incompatibility do not quash legislation, or render it unlawful. Legislation declared incompatible with Convention rights continues to apply and have legal effect. However, the declaration sends a political signal to the Government and the legislature that an Act of Parliament is incompatible with Convention rights, providing an opportunity for Parliament to consider whether the legislation should be changed. In EU law, a stronger remedy is available. Both the Charter and general principles of EU law can – but need not always – be used to disapply legislation. This means that the legislative provision which harms human rights does not have legal effect. The rights of the individual before the court can be protected as the legislation harming those rights is not applied to them. The remedies for common law rights can be even more confusing. It is not unlawful per se to act contrary to a common law right, but a stricter standard of review is applied by the courts when a judicial review action involves human rights. The principle of legality also will be used to read down legislative provisions, such that broad discretionary powers cannot be used to harm common law rights. Broad statutory powers also do not provide the executive with the power to harm common law rights; such power must be given in clear, specific and precise wording, and where such wording is absent, the executive will not have power under the statute to act in breach of a common law right. But there is no declaration of incompatibility where such specific wording is provided. Nor can legislation which breaches common law rights be disapplied; ultimately it must be given effect, absent any incompatibility with either Convention or Charter rights.
Given this context, it is not hard to see why the current European Union (Withdrawal) Bill has given rise to such debate over its treatment of the Charter and general principles of EU law which preserve fundamental rights. The solution proposed in the Bill is to remove the Charter from domestic law, whilst preserving general principles of EU law. However, these general principles of EU law will no longer have the same remedy. It will not be possible to disapply legislation which breaches a general principle of EU law. Rather, the general principles can be used only to interpret EU-derived law. As such, the general principles of EU law will receive the lowest form of protection in UK law post Brexit.
It is not the purpose of this post to argue for or against this policy choice. Rather, the aim is to explain that this IS a policy choice. And as a policy choice, it is one that should be taken by Parliament, after full, informed debate which looks not just at the potential impact on specific human rights, but which also provides a clear integrated picture of how human rights should be protected in the future post Brexit, and which addresses the lack of clarity that attends clause 5 and related provisions in schedule 1, with the risk this poses to legal certainty. To merely remove clause 5(4) from the EU (Withdrawal) Bill, such that the Charter becomes retained EU law, may help to ensure that current ways through which human rights are protected are not lost, but it may do so in a way that leaves human rights protection post Brexit even more complex and confusing. This is not the way in which to protect human rights if we want to ensure that citizens are aware of their rights, such that they can protect their rights when they are harmed and respect the rights of others when they act. It is also not a logical step in the overall political context of withdrawal from the European Union.
Why not just remove clause 5(4)?
Clause 5(4) of the EU (Withdrawal) Bill provides that: ‘The Charter of Fundamental Rights is not part of domestic law on or after exit day.’ And while, as noted above, the Bill preserves some role for general principles of EU law, that role will be a very limited one. If this reduction in rights protection is considered problematic in policy terms, then an obvious solution might seem to be the removal of clause 5(4) from the Bill (along with provisions that presuppose the presence of clause 5(4)). Excising clause 5(4) would, it might seem, be a simple and neat solution: if the Charter were no longer excluded from the scope of retained EU law, then it would count as retained EU law, and it would continue to apply post-exit. However, while this may seem to be an appealingly straightforward approach, the position is in fact much more complex.
First, it is necessary to consider whether the Charter (or certain provisions of the Charter) would in fact constitute retained EU law. It would not count under clause 2 (‘EU-derived domestic legislation) or clause 3 (which applies only to EU regulations, decisions and tertiary legislation). Might it count as retained EU law under clause 4? This is intended to be a ‘sweeper’ provision that captures directly effective EU law that is not caught by clause 3 and that has not already been domesticated via EU-derived domestic legislation. Charter rights, as distinct from Charter principles, are capable of direct effect, although whether they actually have direct effect turns upon whether they satisfy the standard criteria for direct effect. Excising clause 5(4) would thus not result in the entire Charter becoming retained EU law, but it would ensure that Charter rights that satisfy the criteria for direct effect would be retained post exit day under the currently-worded clause 4. A further complication is that the application of the standard direct effect criteria would capture all directly effective Charter rights, including those that could not sensibly have effect in the UK post-exit.
Second, at present the Charter applies to Member States only when they are acting within the scope of EU law. The Charter thus cannot be used to challenge executive action that is undertaken or legislation that is enacted in areas to which EU law does not apply. The upshot is that while, as we have seen, the Charter affords potent remedies, up to and including disapplication of primary legislation, it applies only in a limited range of situations. If the Charter, or some Charter provisions, were to become retained EU law under the EU (Withdrawal) Bill, it would be necessary to consider — and to prescribe in legislation — when it would actually apply. The notion of ‘acting within the scope of EU law’ would not be apt post-exit. It might be thought that that notion should be replaced with one of ‘acting within the scope of retained EU law’. However, it would be very odd to apply such a criterion. Why, for instance, should an individual have a remedy when the matter is governed by one form of domestic law (i.e. retained EU law) but not when it is governed by other forms of domestic law? The limited scope of the Charter at present is comprehensible, given that it turns upon the workings of a supranational legal order that interacts with domestic law. But no such justification could save from arbitrariness limiting Charter remedies by reference to a criterion based on retained EU law. Moreover, the very notion of ‘acting within the scope of EU law’ reflects the fact that the EU has a defined and limited area of competence, such that EU law itself can apply only within a limited compass. Yet such considerations lose all coherence if retained EU law (which reflects no comparable sphere of limited competence) is used to delimit the Charter’s scope of application. To allow the Charter, an aspect of retained EU law, to apply to acts within the scope of retained EU law, appears circular and confusing. More generally, once the Charter is unmoored from its intimate connection to EU membership and jurisprudence, it is impossible to predict its likely direction of travel within domestic law.
Third, if the Charter (or some Charter provisions) were to be treated as retained EU law, it would be necessary to consider the domestic legal status of the Charter (or the relevant provisions). The EU (Withdrawal) Bill provides that the supremacy principle continues to apply as regards pre-exit domestic legislation. The effect of this would seem to be that directly effective Charter provisions would have supremacy over pre-exit UK legislation, including Acts of Parliament, but not over post-exit legislation. Pre-exit legislation could thus be disapplied on the ground of incompatibility with a relevant Charter right, but the same would not be true of legislation enacted after exit day. At least on the face of it, this would be an odd state of affairs. In particular, it is difficult to see why the legal protection accorded to fundamental rights should turn upon the happenstance of whether the right is threatened by legislation that was enacted before or after exit. Nor would this problem be solved if (as the House of Lords Constitution Committee has recommended) relevant forms of retained EU law were to be treated as having the legal status of an Act of Parliament enacted on exit day, for this, too, would result in directly effective Charter rights prevailing over pre- but not post-exit legislation.
Fourth, if the Charter were to be treated as retained EU law, thought would need to be given to its relationship with the HRA. As explained above, rights under the HRA cannot ultimately be protected in the face of clearly incompatible primary legislation. In contrast, Charter rights can be used to disapply such legislation. Charter rights thus enjoy greater legal protection than rights given effect by the HRA. As things currently stand, this difference is comprehensible: the supremacy principle is part and parcel of EU membership, and so Charter rights, as directly effective EU law, must prevail over national law, including through disapplication of inconsistent Acts of Parliament. That those considerations do not apply in relation to the protection of ECHR rights via the HRA explains why ECHR and Charter rights enjoy different degrees of protection at the domestic level. However, if directly effective Charter rights were to become retained EU law, and thus domestic law, there would be no justification for singling Charter rights out and according them a higher degree of protection than that which is given to ECHR rights under the HRA.
Fifth, and finally, it can be argued that giving the Charter legal effect only makes sense in relation to membership of the EU. The Charter, the principles it contains, and the evolution of its meaning and interpretation are all tied to membership of the EU. As well as conferring legal rights and duties, the Charter is also a political statement of a deeper commitment to EU membership; the principles and values it espouses are therefore linked inextricably to this commitment and the obligations it entails. If it is desirable to retain some of the protections the Charter accords, it therefore makes more sense to think not in terms of the ‘retention’ of Charter rights, but rather the creation of equivalent rights in domestic law, which will be interpreted by the rules and principles of domestic law. Whichever model is used to ‘retain’ Charter rights, one fact is irrefutable: these rights, after exit from the EU will be rights in domestic and not EU law.
Possible alternatives
If, then, removing clause 5(4) from the EU (Withdrawal) Bill is not a viable way forward, what else might be done? In this section, we consider two possibilities.
First, the Bill could retain aspects of the Charter and general principles, but provide a list of the preserved Charter rights in an additional Schedule to the Withdrawal Bill. This would require the modification of clause 5(4), making it clear that only certain provisions of the Charter were preserved; perhaps a rewording to ‘Only those provisions of the Charter of Fundamental Rights listed in Schedule 1 to this Act are part of domestic law on or after exit day’. This would preserve those Charter rights that are capable of being replicated in UK law, providing these rights with the same status as other retained EU law – i.e. those Charter rights which have direct effect could be used to disapply legislation enacted prior to, but not on or after exit day. On this approach, clause 5(4) would qualify clause 4, by ensuring that only suitable directly effective Charter rights formed part of domestic law after Brexit. This would help to provide clarity as to the Charter rights which remain in UK law, and provide a potential justification for their application beyond the scope of retained EU law. However, there would still exist a disparity between the extent to which Charter rights and Convention rights are protected, as well as potential confusion concerning the relationship between these two sources of human rights. If this approach were adopted, clause 5(5) and related provisions in schedule 1 should be removed or at least made clearer, in order to circumscribe more precisely the extent to which Charter rights are becoming retained EU law, and to explain how the rules of interpretation applicable to retained EU in general would apply to these rights. (The relationship between rights and principles within the Charter itself is returned to below.)
Second, the opportunity could be taken to provide for new legislation, updating the Human Rights Act 1998 and providing a consolidation of current rights, drawing on the Charter as well as the ECHR. This legislation could then also provide for a coherent set of remedies across all statutory human rights, as well as explaining the nature of the relationship between the Charter and Convention rights currently protected through the HRA. This would provide the most elaborate solution to the problems, discussed above, which arise through the simple removal of clause 5(4). However, this would require time that is probably impossible to find in a tightly-packed legislative timetable.
Whatever solution is chosen, a full human rights audit is necessary, preferably carried out by the Joint Committee on Human Rights after a full consultation, focusing in particular on areas of data protection rights, employment rights and environmental rights – the key, but not the only, areas of human rights which receive greater protection through the Charter. This human rights audit would be needed to ensure that it was the case either that rights would not be lost were the Charter and general principles to be removed from the UK, or, if it were the case that rights would be lost, that this loss had full democratic backing and did not arise inadvertently.
If the intention were to preserve the Charter and general principles, then this audit would be able to ensure that the rights preserved were those that were capable of replication in the United Kingdom. There would also need to be a discussion as to whether rights that could not be replicated in the UK should nevertheless be adopted in a manner which would allow them to be replicated in the UK. For example, Article 42 of the Charter provides for a ‘right of access to documents of the institutions, bodies, offices and agencies of the European Union’. Clearly, post Brexit, this will no longer apply to UK citizens. However, rather than merely remove this provision, a full discussion should take place as to whether this right should be replicated in the UK as regards UK institutions, bodies, offices and agencies.
There would also need to be deliberation as to the remedies available to protect rights post Brexit and the relationship between the Charter and Convention rights. It is important to recognise that it may not be the case that a ‘one size fits all’ remedy is possible. The Charter currently distinguishes between rights and principles. Whilst rights can be used to disapply legislation, principles are designed to be implemented by further legislative and executive actions and used by the courts to interpret such legislation and acts (Article 52). Full discussion is needed to determine which rights currently enjoyed in EU law should have the same force as that currently enjoyed by Convention rights and which should only be used to interpret legislation and executive acts. Moreover, full discussion is needed as to whether Charter rights and general principles should be used to disapply legislation enacted prior to exit day and, if so, whether this should also be available for other rights.
There are no quick fix solutions. The enactment of new legislation to protect human rights post Brexit is probably best left for after Brexit, allowing for broader consultation and reflection. This leaves the choice of retaining, or removing, clause 5(4), or the retention of Charter rights and principles, once audited in terms of scope and remedy, this audited version being included in a new Schedule to the Withdrawal Bill. Retaining clause 5(4) runs the risk that some rights currently protected through EU law will be lost, particularly as concerns the remedy of disapplying legislation which contravenes general principles of EU law and Charter rights, potentially undermining continuity. Removing clause 5(4) gives rise to problems of certainty, as discussed above. The retention of some Charter rights, set out in a Schedule to the Bill, aims to balance certainty and continuity, though that need not mean that this balance is ideal, or that it is without cost. This post argues that this choice is best made by Parliament after full and fair reflection on what UK citizens stand to lose if the general principles and the Charter are lost.
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