Eduardo Gill-Pedro, Post-Doctoral Researcher, Faculty of
Law, Lund University: Eduardo.gill-pedro@jur.lu.se
The UK Government’s proposal that the Charter of Fundamental
Rights of the EU (the Charter) will not be converted into UK law following
Brexit (clause 5(4) of the EU Withdrawal Bill) has generated strong reaction
from opposition parties. The Labour party has indicated
that it considers this to be a ‘red-line’ issue, and that it will not support a
bill that does not incorporate the charter into UK law. Keir Starmer, the
Shadow Brexit Secretary, had earlier
indicated that Labour would only support a deal which met its ‘six tests’,
one of which was the requirement that such a deal would ‘defend rights and
protections and prevent a race to the bottom’.
In this blog entry I will argue, first, that there is no
necessary connection between, on the one hand, incorporating the Charter into
UK law and on the other, defending rights and protections of individuals in the
UK following Brexit, and second, that upholding a commitment to be bound by the
Charter post-Brexit is problematic from a democratic legitimacy perspective.
The Charter is not
necessary to protect rights
The continued protection of rights in the UK is not
dependent on continued adherence to the Charter. This is because the point of
the Charter, indeed the point of EU fundamental rights as a whole, (at least to
the extent that they bind the Member States, not necessarily the EU
institutions) is not to ensure the protection of fundamental rights per se, but
rather to ensure that the project of European integration is not jeopardised by
the requirement to protect fundamental rights. This was expressly acknowledged
by the Court of Justice of the EU (CJEU), when it stated:
“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)
The Charter is thus best seen as a mechanism which is
intended to protect the autonomy of EU law vis a vis both national law and the
ECHR, to ensure that the supremacy of EU law is accepted by national legal
orders, and to ensure the effective application of EU law in the legal orders
of the member states. Further, while EU fundamental rights reflect the
constitutional traditions common to the member states, as well as the rights
set out in 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 of
objectives is structured in such a way as to contribute to “the implementation
of the process of integration that is the raison d’être of the EU itself” (Opinion
2/13, paras 172 and 177).
This demand, that EU fundamental rights are interpreted in a
way that respects the framework of objectives of the EU, can mean that in some
cases these rights will operate as ceilings, and member states will not be able
to apply their own, higher standard of protection (as in Internationale, as well
as in the more recent case of C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107),
and in other cases they operate as floors, and member states will be required
to grant protection to interests which would not be recognised as rights in
their own legal order (See for instance 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 these cases, the level of protection is set in light
of the structure and objectives of the EU. In other words, whether the national
court will be required or permitted to protect the particular interest at stake
will be determined in light of the objective of furthering European
integration. This is not to say that this is the sole consideration. But it is
to say that it is a consideration that must always be present when interpreting
or applying EU fundamental rights.
If following Brexit, the UK is no longer bound by the
Charter, this does not mean that it no longer needs to protect human rights –
national courts will still be required to protect the ECHR, as well as the rights
guaranteed in the UK’s ‘unwritten constitution’. It will also be required to
apply the rights in the EU legislation which became domestic law through Clauses
2 to 4 of the Bill (which provide that EU-derived domestic legislation will be
saved (Clause 2), directly applicable EU legislation will be incorporated into
UK law (Clause 3) and EU rights derived from the European Communities Act 1972
will be saved (Clause 4). What it does mean is that it will no longer be
required to interpret and apply human rights in light of the objectives of
European integration. Given that Parliament has passed the Bill requiring the
government to trigger Article 50, and that the UK Government has sent a letter
to the EU commission announcing the UK’s decision to leave the EU in less than
two years’ time, we must conclude that the UK no longer shares the objective of
furthering European integration, at least to the extent that such integration
includes the UK. And these seems to be something which both the Conservative
and the Labour party have accepted, given that both parties voted in favour of
the Article 50 Bill.
If it is the case that the UK no longer shares the objective
of furthering European integration, then it does not make sense to remain bound
by a Charter which will require the UK to interpret and apply fundamental
rights in light of such an objective.
Brexit and the democratic
deficit
The meaning of the Charter rights is determined by the Court
of Justice, and the Court determines the meaning of those rights in light of
the objectives of the EU. This is arguably already problematic from the
perspective of the democratic legitimacy of the member state when the member
state shares those objectives (This is the argument I made in my doctoral
thesis EU Fundamental Rights and National Democracies: contradictory or complementary
(Lund, 2016). Fundamental rights are conditions of democracy, and as such they
should also be outcomes of democratic processes (J. Habermas Between Facts and Norms - Polity, 1996).
Once the UK leaves the EU, this democratic deficit will be
greatly aggravated. Because then the meaning of the Charter rights will be
determined in light of objectives which are no longer the UK’s objectives, and
furthermore, given the dynamic nature of the EU as a polity, these objectives
will continue to evolve and change of time. The UK, which will no longer be a
member of the EU, will play no part in shaping that evolution. This means that
the UK, should it remain bound by the Charter, will be committed to applying a
set of norms which it will not be able to play any part in shaping. So the
people of the UK will be bound by fundamental legal norms which will be neither
by the people, because they are decided by the EU, in light of objectives which
the British people will have no role in shaping, nor for the people, because
they are done for a project of which the British people are not a part.
Conclusion
There are real dangers that Brexit will be used as a pretext
to conduct an assault on rights protections, and to engage in a race to the
bottom. However, I argue that this is not prevented by a commitment to remain
bound by the Charter. Once the UK is no longer part of the EU project, and no
longer committed to the objectives of EU integration, then it makes no sense to
remain bound to an instrument whose raison d’etre is the furthering of those
objectives.
Rather, a commitment to protecting rights for a Britain that
is no longer a part of the EU must mean a commitment to protecting those rights
within, and through the democratic processes of the UK - Including through the
Human Rights Act. The EU has played an important role in shaping a developing
the culture of rights in the UK. And for human rights lawyers it is of course
helpful to have had another forum in which to litigate one’s case - especially
one with the enforcement tools at the disposal of the CJEU. So it can be
difficult to let go of the Charter. But human rights are not something that
were given to the member states by the EU – they were won first through
struggles fought within those states’ political communities – they are, in
Rancière’s words “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.). A commitment to human rights post-Brexit must involve trust
in the capacity of the British people to continue to develop and evolve that
culture of rights outside the framework of the EU.
Barnard & Peers: chapter 9, chapter 27
Photo credit:
Thanks for this thought provoking view. But here's the alternative argument.
ReplyDeleteFirst of all, the case for retaining the Charter in UK law after Brexit is not to contribute to EU integration but to the UK's own objective of maintaining legal continuity and certainty. Since the Charter is not a free standing text but only applies when EU law applies, removing it from consideration when applying pre Brexit EU law in the UK is like trying to remove the proverbial egg from the omelette.
Secondly, democracy is primarily a process. So in principle it is secured as a consequence of what the UK Parliament decides to do. Remember that the government called an early election to get a big majority for its Brexit plan but lost its majority entirety. The opposition parties are keener on the Charter. So I don't see the problem.
Moreover the UK would be retaining the Charter from a period when it participated in the EU prior to Brexit, so the lack of participation argument doesn't hold up.