Eduardo Gill-Pedro, Post-Doctoral Researcher, Faculty of Law, Lund University: Eduardo.gill-pedro@jur.lu.se

The UK Government’s proposition to exclude the EU’s Charter of Fundamental Rights (the Charter) from UK law after Brexit (clause 5(4) of the EU Withdrawal Bill) has drawn criticism from opposition parties. The Labour party views this as a non-negotiable issue and refuses to endorse any bill that doesn’t integrate the Charter into UK law. Keir Starmer, the Shadow Brexit Secretary, previously stated that Labour would only back a deal that meets its “six tests,” one being the preservation of “rights and protections” to avoid a decline in standards.

This piece argues that incorporating the Charter into UK law is not essential for safeguarding individual rights and protections after Brexit. Furthermore, it contends that maintaining adherence to the Charter post-Brexit is democratically problematic.

Safeguarding Rights Without the Charter

Continued rights protection in the UK doesn’t hinge on upholding the Charter. The Charter’s purpose, and indeed that of EU fundamental rights concerning Member States, isn’t solely to ensure fundamental rights protection in itself. Rather, it’s to prevent conflicts between European integration efforts and fundamental rights obligations. The Court of Justice of the EU (CJEU) acknowledged this, stating:

“it should be borne in mind that the reason for pursuing the objective [of protecting fundamental rights in EU law], is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law” (Case C-206/13 Siragusa, para. 32)

Essentially, the Charter safeguards the autonomy of EU law in relation to both national law and the European Convention on Human Rights (ECHR), ensuring the supremacy and effective application of EU law within member states. While EU fundamental rights mirror common constitutional traditions and the ECHR, they must be interpreted and applied “within the framework of the structure and objectives of the Community” (Case 11/70 Internationale Handelsgesellschaft mbH). This framework aims to advance European integration, the EU’s fundamental purpose (Opinion 2/13, paras 172 and 177).

This interpretation of EU fundamental rights, in line with EU objectives, can sometimes set limits. Member states might be restricted from applying higher national standards of protection (as in Internationale and C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107). Conversely, they might need to grant protection exceeding their own legal frameworks (e.g., Cases C-465/00, C-138/01 and C-139/01 Rechnungshof v ÖsterreichischerRundfunk and Others EU:C:2003:294 and C-426/11 Mark Alemo Herron and others v Parkwood Leisure Ltd EU:C:2013:521).

In both scenarios, the degree of protection aligns with EU goals, prioritizing the advancement of European integration when interpreting and applying EU fundamental rights.

While a post-Brexit UK wouldn’t be bound by the Charter, it would still need to uphold human rights. National courts would remain obligated to protect ECHR rights and those within the UK’s “unwritten constitution.” They’d also need to apply rights within EU legislation integrated into domestic law through Clauses 2 to 4 of the Bill. However, the UK would no longer be obligated to interpret and apply human rights in the context of European integration.

Parliament’s passage of the Article 50 Bill and the UK’s notice to leave the EU demonstrate a shift away from the objective of further European integration. This stance, seemingly accepted by both the Conservative and Labour parties, renders continued adherence to a Charter that prioritizes those objectives nonsensical.

Brexit and Democratic Concerns

The Court of Justice interprets the Charter’s rights according to EU objectives, potentially raising concerns about democratic legitimacy even within member states aligned with those objectives. This argument, explored in the doctoral thesis “EU Fundamental Rights and National Democracies: contradictory or complementary” (Lund, 2016), highlights that as prerequisites for democracy, fundamental rights should also be products of democratic processes (J. Habermas Between Facts and Norms - Polity, 1996).

Post-Brexit, this democratic deficit would escalate. The Charter’s interpretation would be based on objectives no longer shared by the UK and subject to change without UK influence. A UK bound by the Charter would be obligated to apply evolving norms without any say in their development. This situation would leave the British people bound by legal standards decided externally, serving a project they are no longer part of.

In Conclusion

There are valid concerns about Brexit potentially triggering a decline in rights protections. However, remaining bound by the Charter is not the solution. As the UK distances itself from the EU project and its objectives, adhering to an instrument designed to further those goals becomes illogical.

Protecting rights in a non-EU UK requires a commitment to those rights within and through the UK’s democratic processes, including the Human Rights Act. While the EU has significantly contributed to the UK’s human rights culture and provided another legal avenue, relying on the Charter is no longer the answer.

Human rights weren’t bestowed upon member states by the EU; they were hard-won through internal struggles. As Rancière articulated, they represent “inscriptions of the community as free and equal” (J. Rancière, “Who Is the Subject of the Rights of Man?” The South Atlantic Quarterly (2), 297, p. 303.). Upholding human rights post-Brexit demands faith in the British people’s ability to cultivate and advance that culture of rights independently, outside the EU framework.

Barnard & Peers: chapter 9, chapter 27

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