The Brexit Tempest and the Forecast for Human Rights

Amidst the flurry of daily news on the UK’s impeding departure from the European Union, one particular topic has been grossly neglected: the impact that Brexit will have on the continued protection of human rights in the United Kingdom. In addition to an integrated economic trading bloc, the EU has always been a political project to secure peace and justice among nations with shared values and ideals. Now, there’s a reckoning ahead for the UK as it struggles to piece together a coherent national identity and must ask itself, which of these values and ideals should be upheld?

Throughout its 68 years of existence, the European Union has advanced human rights protection like no other intergovernmental organization in the world. Even beyond its member countries, the EU has made great efforts to promote human rights through its relationships with other countries and regions. One way it has done this is by appointing an EU Special Representative for Human Rights who is responsible for improving the effectiveness and visibility of EU policy on human rights in non-EU countries.

Leaving the bloc means that the UK will lose many benefits that have been fostered by the EU human rights community. One important change that Brexit will bring about is the exclusion of the EU’s Charter of Fundamental Rights from UK legislation. The Charter, which has been in place since 2000, ensures that fundamental social, political and economic rights for EU citizens are observed. While the UK has a long track record of protecting human rights, notably through the Human Rights Act 1998, several organizations, including the Equality and Human Rights Commission (the UK’s independent human rights watchdog) and Amnesty International, have stated that it is inevitable that opting out of the Charter will not only undermine legal certainty of these protections, but may also diminish human rights afforded to UK citizens.

Despite the UK government’s assurances, a number of rights protected under the Charter do not have a direct equivalent in domestic law. Several, by virtue of their status as “general principles of EU law,” will be incorporated into UK domestic law. However, all rights featured in the Charter, even if they ultimately are reflected in domestic law, will not retain their “fundamental” status, making them vulnerable to any future changes in the law that might weaken or repeal them altogether. Importantly, UK citizens will no longer be able to bring legal claims to challenge domestic legislation or administrative action as being contrary to rights contained in the Charter.

Among the rights that will be diminished are the rights of the child. Although specific aspects of children’s rights have been recognized as general principles of EU law, the primacy of the child’s best interests in all actions taken by public authorities or private institutions is found in an international instrument—the UN Convention on the Rights of the Child—which is not incorporated into UK domestic law. Similarly, although domestic discrimination law is extensive and powerful, absent the Charter there will be no domestic equivalent to the freestanding rights to equality of treatment, or of some of the broader characteristics of discrimination such as genetic features, disability, age and sexual orientation.

Yet another major departure will be the end of the European Court of Justice (“CJEU”) in the UK. The CJEU interprets EU law to ensure that it is applied consistently among EU countries and settles legal disputes between national governments and EU institutions. It can also be used by individuals, companies or organizations to take action against an EU institution. The CJEU also serves as the court of last resort for EU citizens seeking redress for breaches of their rights under the Charter.

The court has been an important tool for EU citizens who may be vulnerable to discriminatory state practices. Recent landmark decisions include rulings striking down certain sexual orientation tests for asylum seekers; finding that EU Member States must recognize the free movement of gay spouses, regardless of whether same-sex marriages are performed in their country of origin; and holding that the UK requirement for transgendered persons to be unmarried in order to qualify for a State pension at the retirement age of their current gender violates EU law.

As barrister Helena Kennedy highlighted in her article in The New European, the CJEU also oversees a number of law-enforcement instruments, the absence of which would be disproportionately disadvantageous to women. European Protection Orders, for example, exist for the protection across borders of individuals at risk of being assaulted, as is the case for women trying to escape domestic violence. This protection also works against stalkers and traffickers and is expressly designed to safeguard women and girls. Relatedly, the CJEU also oversees the Eurowarrant, as well as the Europol and Eurojust agencies, which together have been lauded as a collaborative tool to bring justice to victims of trafficking. Without the ambit of the CJEU, the UK will need to find equivalent ways to cooperate with neighboring countries for the continued protection of vulnerable people across borders.

Another worrying element of Brexit is the inevitable loss of funding from the EU that contributes to promoting and protecting human rights in the UK. Wales, for instance, relies heavily on annual funding of GBP 370m for regional development, including to address discrimination and gender imbalance in the workplace. Every year, the UK receives funding from the European Social Fund and the European Development Fund, among other programs, to invest in education and lifelong learning, and to promote social inclusion by fighting poverty and discrimination. The EU funding has also been used specifically to help rehabilitate and support victims of domestic abuse. It has not yet been made clear how the UK government intends to compensate for the loss of these resources.

Despite these obstacles, in a post-Brexit world there is a place for a robust human rights agenda that can protect the rights of women, children, ethnic minorities, the LGBTQ+ community and others. As the UK continues to grapple with what its withdrawal from the EU will look like, it will be important to keep an eye on each of these areas where human rights may be vulnerable and to advocate for their incorporation and protection in domestic law.

Charlotte Lelong is an associate in Debevoise’s London office.

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