In this post, Eleni Frantziou tell us about the danger of making an exception with the removal of the EU Charter of Fundamental Rights in the Withdrawal Act, while the rest of the European “acquis” is translated into British law. Besides the legal implications, this questions what the British society see as “fundamental” and what should be excluded from the day-to-day agenda of Westminster. Brexit could be the opportunity for the UK to draft its own set of rights, but this outright rejection threatens an important democratic safeguard.
With the Withdrawal Act having finally entered the lawbooks back in June, the focus of the Brexit conversation has, naturally, shifted towards other matters (including issues of perhaps greater urgency, such as the grounding of planes, the availability of medication, and general contingency planning in case of a no-deal Brexit). Rallying to the problems of legislation which was already vastly criticised academically and in the House of Lords before its adoption may now be seen as a lost cause. Nevertheless, at the risk of staying within the ivory tower, in this post, I will try to formulate a critique of one of the Withdrawal Act’s most significant problems: the removal of the EU Charter of Fundamental Rights.
Sections 2-4 of the Withdrawal Act ‘retain’ directly applicable EU legislation and EU-derived UK law by transforming it into UK law or affirming its validity. However, Section 5(4) goes on to create an exception for the Charter. Unlike other forms of EU law, which are staying in place until further notice, from Brexit day the Charter will no longer form part of UK law: UK courts will not be able directly to refer to it and claimants will not be able directly to rely on it. It may be argued that this loss is not a real cause of concern. UK courts and the House of Lords have so far consistently considered the Charter an instrument that assembles in a single place[i] rights already existing in EU law, which the Withdrawal Act otherwise maintains.
In reality, it is debatable whether this is the case, as the Charter includes an extensive list of social and employment rights, as well as a more wide-ranging protection of privacy than what we might have assumed applicable before its entry into force, both in the EU and in the UK. Regardless of this question, though, the exclusion of the Charter from the category of retained EU law is also problematic from a structural perspective: it removes the formal, ‘fundamental’ status of rights in a direct and not readily replaceable manner. It thus raises a question about how the UK constitution should continue to represent a system of rights to which it previously subscribed.
Let me develop my argument through a fictitious example. As part of a drive to boost incentives for employers after Brexit, the government might choose to put a Bill before Parliament that seeks to reduce the right to have adequate rest periods and paid annual leave. These protections currently have a fundamental status through Article 31 of the Charter, which will be removed from UK law upon Brexit. Arguably, these rights did not form part of the general principles jurisprudence of the Court of Justice of the European Union before the Charter’s entry into force,[ii] nor are they protected constitutionally in the UK in another form. They are, however, covered by the Working Time Regulations 1998, which will be retained, as they were enacted to implement EU secondary legislation. Strictly speaking, then, it is only the ‘fundamentality’ of these employment rights that the removal of the Charter would have taken away. Any loss of substantive rights if such a Bill were ultimately passed would stem from the changes made to the WTR. In this technical sense, the removal of the Charter would indeed not be changing very much.
However, while its retention would not necessarily have affected Parliament’s power to remove rights if it wished to do so,[iii] the Charter’s removal will undo the codified form of the abovementioned rights in the UK constitutional order, after Brexit.[iv] In turn, this can heighten a sense of informality around decisions about their protection, to which further attention should be paid. The loss of the fundamental character of these rights allows their core to be decided, just like other things, in the daily agenda of Westminster.
And yet, calling something ‘fundamental’ is, from the viewpoint of constitutional law, a significant act. It attaches to rights that as a polity, rather than as particular individual wants, we have singled out and accepted as premises of the legality of other legislation, of our interaction with institutional bodies and, even, in some cases, of our interaction with one another. That is not to say that fundamental rights are not revisable; nor do I want to paint an overly rosy picture of the Charter, which was not especially well-drafted or sufficiently couched in a representative process that included the ‘peoples of Europe’, to which its Preamble appeals.
If Brexit is to have a meaningful purpose, perhaps this could be that it enables the United Kingdom to develop a set of rights that reflect a clearer sense of authorship on the part of its peoples. But the process of doing so is where caution needs to be exercised. If we accept that the removal of the Charter is not intended to lead to a substantive erosion of acquired rights, as the government has promised (though it has rightly been pointed out that a reduction in employment rights and principles is likely), the exclusion of this instrument from retained EU law might be attributed to a symbolic representation of a popular tale of national emancipation from ‘Brussels.’ Without positive opportunities to develop an equivalent system of rights, though, such a narrative is both unconvincing and constitutionally perilous.
The Charter’s impact on fundamental rights in this country to date has been noticeable: UK courts have actively assumed its provisions and used them to provide remedies for vulnerable claimants within national law, where redress was not otherwise available (see, most famously, the Benkharbouche judgment).[v] In the absence of codified alternatives that maintain continuity with the Charter, the Withdrawal Act involves an internally conflictual rupture with the past. While, in a vague sense, it ‘retains’ the existing case law, it overlooks the fact that this case law is usually not just about the Charter. The latter has been used alongside – and, at times, in place of – other human rights instruments, drawn both from international and from UK law.[vi]
In other words, the Act does not acknowledge that the patrimony of rights developed during the UK’s membership of the EU has gradually become part of the evolution of the constitutional settlement of the United Kingdom in ways that cannot be neatly distinguished as ‘other’ upon its departure. Indeed, in democratic constitutional transitions, respect for existing rights during a process of revision is precisely what guards against their replacement with the sectional interests of powerful groups – usually, those of majorities (for more on this point, see this excellent post). On Brexit day, by losing what was ‘fundamental’ to us only the day before, including rights such as paid annual leave, processes of employee consultation, and other minimum rights at work, we also lose a common language that enables disagreements about their content to be articulated precisely and in a manner that includes all those affected by revisions to their current status.
Understood in this way, the outright removal from, rather than the reimagination of the Charter in, the UK’s constitutional future, represents Brexit in its gloomiest iteration: fearful of rational justification and distrusting of institutions – crucially, not only those of the Union, but of UK institutions as well and, especially, of UK courts. At best, it paves the way for constitutional ambiguity, due to the potentially broad indirect effects of the Charter through UK case law and retained EU law. At worst, it embraces a false consciousness about national democratic empowerment, manifested in a desire to ‘take back control’, but one which overlooks the need for democratic safeguards, including legal certainty and legitimate expectations. In this sense, it is more than a right to a lunch break and paid holidays we may be foregoing – though these are in themselves not minor things.
Dr Eleni Frantziou is Assistant Professor in Public Law & Human Rights in the Durham Law School and a previous Teaching Fellow at University College London (Laws).
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.
[i]RFU v Viagogo  1 WLR 3333, para 26, per Lord Kerr.
[ii] C-282/10 Dominguez, EU:C:2012:33.
[iii] See Madzimbamuto v Lardner-Burke and George  1 AC 645.
[iv] This will be the case for all Charter provisions that are not included in the European Convention of Human Rights, as well as for those that enjoy a greater level of protection under the Charter, in respect of that higher protection.
[v] Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs  UKSC 62.
[vi] Ibid. I am referring in particular to the gap-filling role of the Charter in cases where reliance on the Human Rights Act 1998 does not provide an adequate remedy, as evidenced in that judgment.