In a letter to David Gauke, Lord Chancellor, last week, the House of Lords EU Justice Sub-Committee, chaired by Helena Kennedy QC, warned of a ‘real risk’ to rights after Brexit. The committee has been taking evidence since March on ‘Rights after Brexit’ from lawyers, academics and rights groups.
One major concern is the loss of the protection of the Charter of Fundamental Rights, which will not apply in the UK after Brexit. It protects rights not covered by the European Convention on Human Rights (ECHR), such as the freestanding right to equality before the law. The Peers’ letter notes: ‘While this is also protected by Article 14 of the ECHR, under the ECHR this is not a freestanding right and can only be relied upon with other Convention rights.’
The Charter is stronger than the Convention in some areas―the letter cites ‘the right to protection of personal data (including, for example, both state surveillance and private sector collections of private data) [which] is more extensive under the Charter than the similar right to privacy protected by Article 8 of the ECHR’.
The Charter also provides stronger legal remedies for infringements, as the supremacy of EU law gives courts ‘power to disapply primary legislation which is incompatible with the Charter’. The committee highlights fears that ministers are being given ‘Henry VIII powers’ to change rights protections through statutory instrument. Moreover, individuals will no longer be able to bring certain types of judicial review claims on the basis of proportionality, nor bring claims based on equal treatment in the same way.
Other concerns include the risk of rights differing across the UK, for example, as the Equality Act 2010 does not cover Northern Ireland, the Charter was seen to underpin rights protections. Meanwhile, the Scottish Government is considering a Bill to ensure rights in Scotland can’t be scaled back after Brexit.
Baroness Kennedy said: ‘UK lawyers have been leading contributors to EU human rights law. So it's ironic that UK citizens post-Brexit will have diminished human rights protections, less access to remedies and face legal uncertainty.’
