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Published on November 9, 2020 by Content admin

With negotiations regarding Brexit heating up and the UK’s exit within reach, four years after the referendum, it’s becoming increasingly critical to understand how our leaving will affect our human rights. First, we must understand how the European Union has influenced their creation and protection.  Then we can examine the changes to expect come exit day and the assurances provided by governing bodies that intend to support human rights.


Learn more about EU law in the UK

A Brief History

The Charter of Fundamental Human Rights of the European Union (the ‘Charter’) is the most fundamental EU law that affects our human rights, without being formally codified in national law. The charter was created to provide consistency and clarity to rights established by EU member states at different times and can be raised in national courts regarding EU law.

The Charter is often confused with the European Convention on Human Rights (ECHR) which, like the Charter, is an international convention created for the protection of human rights. However, where the Charter was made concerning EU member states, the ECHR was made in relation to members of the Council of Europe. And where the Charter has never been incorporated into national law, the UK codified the ECHR, creating the Human Rights Act 1998 (HRA), the main legislation for the preservation of human rights in the UK.

Changes We Can Expect

The EU (Withdrawal) Act 2018 stated that the Charter, as a result of not being a part of domestic law before or after exit day, will cease to apply to the UK upon our departure from the EU. The risk this poses to human rights is multi-faceted: firstly, despite the Charter’s main purpose being to reaffirm rights that already existed, mitigating the extent to which protection for domestic rights will be affected, it has led to the development of new rights. Those won’t need to be enforced at a national level beyond our exit. Secondly, the Charter enables nationals to bring legal action against domestic legislation that is incompatible with a fundamental human right, a possibility that ceases with the Charter’s national applicability.

What’s more, despite the UK’s membership of the EU having no connection to its membership of, and therefore obligations under, the ECHR, the UK does have control over its domestic legislation, presenting a major risk to the UK’s most fundamental human rights legislation, the HRA. The conservative party has long submitted intentions to amend the HRA, while the Labour, Liberal Democrat and SNP have committed to retaining it. Amendment or repeal of the HRA, regardless of assurances by the current government that the change would be in the interest of the public would alter human rights on a domestic level.

Assurances

Despite the inapplicability of EU law within domestic courts that will ensue as a result of our departure, there are assurances that our human rights will remain protected. Firstly, the EU has committed to protecting and promoting human rights, using trade agreements and other external measures to require their respect.

Also, the UK government, within the revised ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’ relays that “core values and rights” will remain the basis for onward cooperation, encouraging a relationship with a continued commitment to “respect the framework” of the ECHR.

The UK government also published a ‘Charter​ ​of​ ​Fundamental​ ​Rights​ ​of​ ​the​ ​EU right by right analysis’ which sought to establish alternative sources of rights contained within the ECHR to ensure that rights established and protected by the ECHR are not lost on exit day.

Therefore, although it remains that human rights, and the structures established to protect them, will be altered come exit day, it may prove an opportunity for the UK to establish a refined approach to human rights for the benefit of the UK.

Words: Lucie Brooks-Francis


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