For supporters of the broadest possible reach of human rights law these are troubled times. But for the comparative law scholar these are also very interesting times. Proponents of a ‘hard’ Brexit are trying to expel an entire corpus of law from our legal system whilst simultaneously the Government is trying to negotiate various agreements granting EU law a role in the national legal system for three years, for eight years, possibly, in some areas, a role in perpetuity.
EU human rights law is a small part of the bigger picture but, unlike many other areas of law, highly politicised which explains its unique treatment in national measures adopted so far. Given the many sources of human rights law at play in the national system – the HRA, ECHR, common law, international law and the law of other jurisdictions, the purpose of this post is to discuss what will happen when it is attempted to remove a piece of the finely tuned machine – EU human rights law.
Cleansing the statute book
The EU Withdrawal Act 2018 incorporates EU law into domestic law on exit day. But the principle of supremacy of EU law will not apply to laws passed after exit day and there are some specific exclusions in relation to human rights. The EU Charter of Fundamental Rights will not be part of domestic law after exit day although ‘fundamental rights and principles which exist irrespective of the Charter’ are retained. But, according to Schedule 1, this only includes general principles recognised by the CJEU in a case decided before exit day. Furthermore, there is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles. But it is possible, for three years after exit day, to challenge something which occurred before exit day. Finally, no court may on or after exit day disapply or quash acts or enactments because these are incompatible with any of the general principles of EU law.
To summarise, from exit day, the general principles of EU law, which encompass the protection of many human rights, will become principles of interpretation to be used in relation to retained EU law. But these principles of interpretation will be frozen in time, at the point of exit, and any new general principles recognised by the Court of Justice will not be legally binding. Furthermore, failure to comply with the general principles will not found a cause of action in our courts and retained EU law will not be disapplied if it is in conflict with the general principles.
The expulsion in practice
EU human rights law has not had an significant impact on the UK legal system to date unlike the protections for equality, workers’ rights, environmental and consumer’s rights which have flowed from the EU. But there will be an impact. It will not be possible for courts to disapply retained EU law if it is incompatible with Charter rights although it can be interpreted in accordance with the general principles. Where retained EU law is replaced with domestic law, it will not be possible to challenge this new law at all on Charter grounds, even as a principle of interpretation, unless these are reflected in the HRA or common law. And if these are reflected in these other sources of human rights law, disapplication will no longer be a remedy.
There is a real concern that there will be regression on Charter rights given the Withdrawal Act fails to provide protection against this. It will of course also follow from Brexit that developments in human rights law, whether based in legal measures or judgments of the CJEU, will no longer have to be adopted in the UK. And there will be no external oversight by the CJEU.
The best way to explain this is through a couple of examples.
In its judgment in Benkharbouche in 2017 the UK Supreme Court determined that sections of the State Immunity Act 1978 which prevented the employment claims of embassy staff from being brought in UK courts were incompatible with Article 6 ECHR and Article 47 of the Charter. As the claims fell within the scope of EU law, it was possible for the court to disapply these sections as well as issue a declaration of incompatibility under the HRA. After exit the Charter aspect of this claim will not be possible. All that such claimants will be able to obtain will be a HRA declaration of incompatibility.
The second example is the judgment of the Court of Appeal in 2018 in the claim brought by Tom Watson and David Davis to the Data Retention and Investigatory Powers Act 2014 (DRIPA) following a reference to the CJEU. The Court of Appeal had earlier agreed with the Divisional Court that Article 8 of the Charter was more specific than Article 8 of the ECHR. The Court of Appeal declared that the DRIPA was incompatible with EU law in two respects: access to retained data is not limited to the purpose of combating serious crime; and access to retained data is not subject to prior review by a court or an independent administrative body. A similar conclusion was reached in the later challenge brought by Liberty to the Investigatory Powers Act 2016.
What happens to this type of claim on or after exit day is more complex. Assume Parliament passes new data retention law after exit day and any transitional period. The Data Retention Act 2022 is clearly incompatible with the Charter and, in particular, contradicts a new Charter judgment of the CJEU. It is not clear whether Article 8 of the ECHR would provide a remedy particularly if the European Court of Human Rights has not considered this question yet. A cause of action based on incompatibility with EU law is not possible. A challenge under the HRA utilising Article 8 ECHR is possible but a court may determine that Article 8 ECHR does not have a similar reach to Article 8 of the Charter. That piece of the human rights law machinery has been removed.
But can EU law really be expelled?
It is the hope of some that EU law will be expelled from the UK, eventually cleansed from the statute book with Parliament returned to sovereignty, the Supreme Court supreme once more and no formal role at all for the law of another legal system. But it is questionable whether such a procedural, and substantive, expulsion is really possible. Procedural expulsion is straightforward. The Withdrawal Act is clear, the principle of supremacy of EU law will no longer be in place on or after exit day. However, substantive expulsion is a little different and here there are three obvious barriers: the Withdrawal Agreement (on the assumption that there will be one, or at least parts of one); the possibility that new judgments of the CJEU will infiltrate the general principles; and the possibility that the general principles will influence interpretation and development of the HRA and the common law.
The Withdrawal Agreement
If there is to be a complete withdrawal agreement, it will be likely to include protection for human rights. The agreement reached on citizen’s rights provides that the CJEU will have a post exit role for 8 years. Implementation and application will be monitored in the Union by the Commission and in the UK by an independent authority. In a part not yet agreed, the Charter makes a comeback as a part of Union law governing interpretation and application of the agreement. The agreement so far in relation to Northern Ireland obliges the UK to ensure ‘no diminution of rights’ as set out in the Good Friday Agreement.
Judgments of the CJEU will infiltrate the general principles
Secondly, although the Withdrawal Act attempts to freeze the meaning the general principles at the point of exit, how effective this will be is open to doubt. Post exit CJEU case law will no longer be binding but in a common law system such as ours it is almost certain that new developments from the CJEU on the interpretation and application of the general principles will find expression in the judgments of UK courts. Should the CJEU discover any new general principles this might be a little more difficult to navigate depending upon how easy it is to accommodate within the HRA or the common law.
The general principles will infiltrate the HRA and the common law
Finally, it is possible that the general principles will spill over from retained EU law to the HRA and the common law. In its ‘right by right’ analysis of the Charter published in 2017, the Government claimed that Charter rights are already protected in national law in a number of ways – through retained EU law, through the HRA, through the devolution statutes, through common law, and through domestic legislation. It has actually provided a useful summary to courts thinking of developing the HRA, or the common law, to fill the gap left by the removal of the Charter.
For example, will the Supreme Court, which has just decided a claim concerning retained EU law utilising the Charter right of ‘human dignity’ – according to the Government a ‘general principle’ – decide in the same way when determining a claim concerning non-retained EU law which concerns similar facts and issues? In the example discussed earlier, the Watson Davis challenge, will the courts simply flesh out Article 8 of the ECHR with Article 8 of the Charter? In its 2017 analysis, the Government provides a strong steer, effectively a wish that the courts ensure there is no diminution of rights and the vagueness of the Withdrawal Act would seem to allow this or at least not prevent it.
What about the politics?
But it is important not to ignore the politics of the situation. As the Joint Committee on Human Rights has noted, post exit the resulting human rights framework will be an uncertain mess with outcomes up for grabs. But with Brexit having actually occurred, our courts may be a little reluctant to allow post exit judgments of the CJEU to overtly influence their thinking or to let the general principles bleed into the interpretation of non-retained EU law. The government has sent mixed messages. It professes to want no diminution in rights but at the same time it wants UK legal principles and human rights protections to take precedence.
Removing one piece of the machine that makes up the protection of human rights through law in the UK may not have really disastrous consequences for effective human rights protection if the other pieces can adapt to cover the gap created. Going forward it will be very important to ensure that more pieces are not removed in particular the HRA and the UK’s ongoing commitment to the ECHR. These are indeed troubled times for human rights law but also fascinating times for the comparative lawyer.
Posted by Merris Amos, Professor of Human Rights Law, Queen Mary University of London
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