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.
Ronan McCrea, Barrister and Senior Lecturer in Law at UCL, argues that the UK could be under the jurisidction of the European Court of Justice for longer than many Brexiteers may care to imagine. Any withdrawal agreement negotiated under Article 50 has to comply with the basic constitutional norms of the EU legal order, including fundamental rights. This could have significant implications for the UK’s negotiating position, as well as the status of EU citizens living in the UK.
Those concerned with protecting human rights have been vocal in their concern that the Brexit process will lead to a reduction in human rights protection in the UK. Indeed, part of the case presented to voters in favour of Brexit was that leaving the EU would allow the UK to be free of the duty to comply with the EU fundamental rights norms, including Charter of Fundamental Rights and the possibly expansionist interpretation of that Charter by the Court of Justice of the EU. As with so many elements of the impossibly multifaceted and tangled process of Brexit, the reality may be less clear cut. It is in fact likely that any deal concluded under Article 50 will be subject to a degree of obligation to comply with the rights contained in the Charter and the fundamental elements of EU law, and indeed, and obligation to satisfy the Court of Justice that such compliance has occurred.
Philippe Sands, Professor of Law at UCL and practising barrister in international law, and Helena Kennedy, a leading barrister and academic in human rights law, civil liberties and constitutional issues, were members of the 2011 Commission on a Bill of Rights. In highlights from a recent article in the London Review of Books, they discuss how human rights intersect with politics, examine the UK’s strained relationship with the European Convention on Human Rights, and question the possible motivations lying behind the proposed Bill.
In March 2011 the UK government established a Commission on a Bill of Rights, charged with investigating ‘the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties’.
We were appointed to the Commission by Nick Clegg. The circumstances were not auspicious, and we were concerned from the outset that our composition – all white, almost all male, almost all lawyers and London-based – would undermine our ability to speak with any legitimacy. The Conservatives had come into government committed to tearing up the Human Rights Act, an early product of the previous Labour government seen by many of the new government’s Tory supporters (and some in the media) as little more than a charter for foreign terrorists and local criminals. The Liberal Democrats, on the other hand, strongly supported the Act and the provisions of the European Convention on Human Rights that it introduced into UK law. There were eight members, under the chairmanship of Leigh Lewis, a retired senior civil servant who was hopeful that we might exceed the miserably low expectations of most commentators and come up with something useful.
Dean Spielmann, President of the European Court of Human Rights since September 2012, has served as a Judge in the Court for over a decade. In a recent interview with the UCL Law Society’s Silk v. Brief, highlights of which are condensed in the blog post below, he discusses the evolving role of human rights in Europe, and explores the complicated relationship between the UK and the European Convention on Human Rights.
|As President, has your professional relationship with the other members of the court changed significantly? Do you now attempt to find common cause among the presiding judges?
The transition from judge to president of the European Court of Human Rights inevitably means a change in some aspect of professional relations with the other members of the Court. The President is a unique point of reference for judges in relation to certain matters, such as judicial ethics, for example. More generally, it is to the President that judges look, individually or collectively, to support and assist them in their work, to pursue the well-being of the Court and its personnel. . . . In [the Plenary] forum, the President occupies the chair but his voice and his vote are of exactly equal weight to every other judge. There is no judicial hierarchy. . . . Naturally, I endeavour to find ‘common cause’, as you put it, among my fellow judges so that the Grand Chamber gives its best answer to the questions raised in the case. . .