The EU Charter of Fundamental Rights celebrated its tenth anniversary this year, and it continues to be a fundamental mechanism for the protection of citizens’ rights in the European Union. By exiting the EU, the UK will lose access to the EU’s overarching human rights mechanism, and it is important to remember how we got here and what it means for the future.
The Charter’s legally-binding text is reflected across all EU law and policy, and contains 50 articles with substantive rights and principles. Member States have a duty to respect the rights and observe the principles of the Charter whenever they are acting within the scope of binding EU law. Examples of recent successes include the General Data Protection Regulation (GDPR) and the new rules to protect whistle-blowers.
UK Governments have had a difficult relationship with human rights and perceived interference in UK courts. The problem lies with policy positions that conflate protection for fundamental rights as a direct trade-off with security and combatting terrorism – as well as an opposition to strengthening economic and social rights through support of free-market policies.
During the negotiations of the Charter in 2003, Tony Blair’s government negotiated a protocol which would ensure that the Charter would not extend the powers of the European Court of Justice over UK law. In other words, the government was seeking to stop British citizens going to the European Court of Justice in Luxembourg over a right to strike considered more ‘generous’ than in British law.
It wasn’t that long ago when Theresa May was promising to ‘rip up Human Rights Law’ in her election campaign, also denouncing ‘activist left-wing human rights lawyers’ who ‘harangue and harass’ Britain's armed forces. It was indeed her government that voted against retaining the EU Fundamental Charter on Human Rights in the UK’s withdrawal from the EU.
Boris Johnson meanwhile, offers continuity on this issue. Priti Patel’s appointment to the Home Office – with a consistent record of voting against basic human rights protections – is equally concerning. Without the legally binding Charter, or the introduction of a similar mechanism post-Brexit, citizens are more vulnerable to attacks on their rights.
The rise of the new mainstreamed hard-right in the UK can be best understood through its predominant political hostility to human rights. The arguments against are based on a basic misunderstanding of how human rights work, as well as a general low-prioritisation of social justice.
Human rights are designed to be universal, indivisible and inalienable, as is set out by the main human rights instruments promoted by the EU and the United Nations.
The concept of universality states that everyone is born with these rights, regardless of their origins, ethnicity, gender, race, religious, cultural or social background. Giving more human rights protections to a specific group will not come as a trade-off with another group’s rights. Rather, the same level of protection should be afforded to those whose rights come under attack more often than others – because it could happen to anyone. An easy example to point to is the Conservatives’ hostility to migrants.
The weak language on human rights in Boris Johnson’s renegotiated Withdrawal Agreement has alarmed many legal experts. Peers on the House of Lords Constitution Committee produced an interim report in November to provide the only clause-by-clause scrutiny of the Withdrawal Bill. The message from the Committee on human rights, particularly workers’ rights, is clear: ‘Under the bill, by contrast, there is, at present, no planned international treaty arrangement protecting such workers’ rights in the UK after the implementation period completion date.’
The Charter ensures that EU law does not infringe on basic rights. Many EU laws have been previously transferred to UK law as ‘retained legislation’, and after Brexit, the UK will lose the protection of retained EU law – resulting in a lower level of protection of human rights.
Pulling out of the Charter will also cause ongoing legal uncertainty, and citizens are being left in the dark by the government over their future legal protections.
As the UK Equality and Human Rights Commission stated: all of these problems could have been solved by simply keeping the Charter protections in UK law. With Boris Johnson’s big majority and his new self-proclaimed ‘People’s Government’, the fight to preserve the same level of rights protections will now be tougher.
At this critical juncture, we should remind ourselves that chipping away at human rights reduces the power of citizens against abuses of the government or employers. A true people’s government protects all of its citizens, and does not renege on their human rights.