Thursday 7 September 2017

Learning to let go – the Charter of Fundamental Rights after Brexit

Eduardo Gill-Pedro, Post-Doctoral Researcher, Faculty of Law, Lund University:

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. 


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
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1 comment:

  1. Thanks for this thought provoking view. But here's the alternative argument.

    First 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.