Brexit implications: Coppel QC's concerns for UK human rights.
Updated: Feb 4, 2021
In 1950, the UK government signed up to the European Convention on Human Rights (ECHR) after the atrocities of World War II. The main piece of legislation that incorporates the ECHR and upholds human rights in the UK, is the Human Rights Act (1998). Although there is no direct connection between the UK’s membership of the ECHR and membership of the European Union (EU), Brexit will impinge on the protection of human rights in the UK.
This is due to the decision from current government to stop the charter of fundamental rights having effect in domestic courts in the UK.
Despite assurances from incumbent government that the rights currently conferred by the charter will not be weakened by the exclusion of the Charter from domestic law, Jason Coppel QC, specialist on EU law and human rights issues, puts forth his reasons for why excluding the EU charter will oppose the governments claims entirely. In his advice to the Equality and Human Rights Commission (EHRC), Coppel QC clearly states that a withdrawal of the Charter in domestic law will lead to a significant weakening of the current system of human rights protection in the UK.
From Coppel QC's advice in his report, EHRC have focused on six main points of concern that arise with the loss of the Charter. These are:
1. Less power to protect rights
The Charter provides more powerful mechanisms for protecting rights than are available elsewhere in UK law. For example, the case of Benkharbouche shows how, without the Charter, the Claimants would have been left without an effective remedy for their claims of discrimination at work.
2. Less flexibility to create new rights and reflect change
The Charter is a ‘living instrument’, meaning that it is not static and the rights it provides must reflect social change and be interpreted in the light of present day conditions. Because of this, the Charter has created valuable new rights and extended existing rights, such as the ‘right to be forgotten’.
3. A lower level of protection for fundamental rights
The Charter makes sure that EU law upholds basic rights and can also be used to strike down any EU law that undermines these rights. Many EU laws will be transferred to UK law and become ‘retained legislation’. After Brexit we will lose our protection around retained EU law, resulting in a lower level of protection for human rights.
4. Creating gaps in basic human rights
Losing the Charter would create significant gaps in substantive rights, because it includes rights that do not have direct equivalents in other UK human rights law. For example, it includes a free-standing right to non-discrimination, protection of a child’s best interests and the right to human dignity.
5. Losing the Charter principles
The Government’s proposals mean losing the Charter principles, which can be used to interpret rights and other laws. For example, the case upholding restrictions on tobacco labelling relied on the Charter principle of a ‘high level of human health protection’.
6. Legal uncertainty and confusion
By scrapping the Charter, the Government will create unnecessary legal uncertainty and confusion. The Government’s ‘right by right analysis’ (PDF) seeks to identify alternative sources of Charter rights which are scattered throughout domestic law, case law and international law. This is a recipe for costly and time-consuming litigation as the courts seek to establish how far the rights in the Charter continue to apply after Brexit.
All of these problems can be solved by keeping the Charter protections in UK law.
Click HERE to read Coppel QC's full report on the implications of Brexit on human rights.