In June 2016, the United Kingdom (UK) voted to leave the European Union (EU). This decision has come to be known as “Brexit” and was met with shaky support, to say the least. The departure will happen on March 29, 2019, but the UK is already discussing how the government is going to handle this transition. A bill called the European Union Bill was recently introduced to Parliament which, if passed, will essentially end the primacy of EU law within the UK. Effectively, the bill will lump all EU legislation together with current UK law and over time, the government will decide which parts to keep or remove. Even more troubling, one of the most fundamental pieces of EU legislation that will not be transferred to the UK is the European Charter of Fundamental Rights (“Charter”). The language of the bill reads, “the Charter of Fundamental Rights is not part of domestic law on or after exit day.”
By passing the Brexit bill as it currently stands, the government of the United Kingdom will leave many societal groups without adequate protection under the law. This glaring hole has caused many civil rights bodies, such as the Equality and Human Rights Commission (EHRC) and Amnesty International, to warn against the bill. Excluding the protections of this Charter would “cause legal confusion and … gaps in the law,” says chair of the EHRC, David Isaac. The main problem with losing the Charter is that it provides a certain number of rights and judicial remedies that do not have an equivalent in UK law. According to the EHRC, rights that would be lost without a direct replacement in UK law include a “freestanding right to non-discrimination, protection of a child’s best interests and the right to human dignity.” The current legislation protecting human rights in the UK is the Human Rights Act, but this fails as a defense to violation of human rights because it does not override acts of Parliament. The Charter is essential to providing an adequate remedy for violation because it will prevail over an act.
The government continues to insist that current UK law contains equivalent protections to those in the Charter. The bill was almost defeated last year, but the government kept it alive by promising to conduct a “right-by-right analysis,” explaining how the current protections in the Charter will be guaranteed after the exit. The Labour Party, however, was unsatisfied with the analysis, calling it “woefully inadequate” and proposing an amendment to preserve the provisions of the Charter. The amendment was voted down by Parliament on January 16, 2018.
The UK has a duty to its citizens to provide them with certain basic protections, based on their adoption of the Universal Declaration of Human Rights (UDHR). The UDHR influenced the 1998 Human Rights Act, from which the country’s current human rights protections stem. The Human Rights Act provides certain basic protections, such as the right to life, freedom from torture, and freedom from slavery, among others. The EU Charter provides a stronger defense of fundamental rights because it overrides acts of the Parliament when there is a conflict over basic rights, making it a much stronger legal defense when combatting violations of human rights. The government contends that the citizens of the UK are protected through the democratic process, assuming that the ability to elect Members of Parliament is an adequate assurance that their representatives will protect their basic rights. It seems foolish, however, to found an entire group’s basic rights protection solely on the goodwill and moral compass of the government, even if that government has been democratically elected.