Human Rights To The Rescue: How the EU Charter Could Save Brexit

Despite Theresa May’s assertion that the EU rights that we take for granted will continue post Brexit, the EU Withdrawal Bill which is currently floundering through Parliament removes meaningful access to all EU human rights protection. Most significantly, the EU Charter of Fundamental Rights will not become part of UK law.

The decision to cull the Charter makes no sense. But does it also reveal something about the motivation for leaving the EU? Is Brexit for May’s Tories about taking back control, immigration or independence? Or is it something much more sinister than that? Is it an attempt to deny rights?

Audaciously, the Government argues that the Charter does not create new rights, hence it can be done away with. Yet, the Charter pulls together all the rights that we can take for granted within the EU. That’s new. The Charter recognises as human rights issues that had not been formulated as rights before. That’s new too. The rights in the Charter lie at the centre of the European idea and they’re enforceable. That’s also new. The rights in the Charter trump all other EU law – something else about the Charter that is new. The Court of Justice of the EU has interpreted those rights to give citizens wider human rights protection, also new.

The Government also says that EU fundamental rights principles will continue to apply post Brexit and therefore that’s another reason why we don’t need the Charter. But what are those principles? To find out you have to look to the Charter. What’s more the Government has taken away the right to bring a case based on EU fundamental rights principles.

This is the Government’s fiction: apparently, EU principles apply, but their source, the EU Charter doesn’t and even if you can find out what those principles are, they can’t be enforced. The reality is post Brexit the Government proposes to airbrush out EU human rights protection.

By excluding the Charter the Government is dissembling when they claim that they are incorporating EU law into UK law, because, by removing it from the Withdrawal Bill, they have distorted EU law. The Charter is a critical element of all EU law.

If the Prime Minister took a different path and pledged the UK to the Charter post-Brexit, her assertions to Commission President, Jean-Claude Juncker, and the leaders of the 27 EU member states that she is committed to EU nationals living in the UK would sound less hollow. What harm is there in reassuring EU Nationals in the UK that they will keep their rights post-Brexit day because the UK stands by the Charter?

What is the EU Charter? The EU Charter is a comprehensive catalogue of human rights. It is far more extensive than the European Convention on Human Rights (which is nothing to do with the EU), embodying a 21st-century approach to rights protection. To single it out for non-inclusion in the post-Brexit arrangements feels like a snub to European values. Is that intentional?

The Charter only applies to the scope of the EU, but it adds real value. For example, it requires pluralism of the media. Who’s opposed to that? It expressly protects gay men and lesbians from discrimination. Children are granted comprehensive human rights protection. It guarantees a right to dignity. It articulates business as well as workers’ rights. It gives a right to good administration. It respects academic freedom. What’s wrong with rights to a high level of protection for the environment, the consumer and health?

It was the Charter that David Davis relied upon, when along with Tom Watson, he challenged the legality of the UK’s surveillance regime. The Charter has proven its worth in cases before the Court of Justice of the EU: from limits on tobacco companies’ free speech rights to human rights protection in the workplace, and from cartels to citizenship. We have all benefited from the comprehensive rights protection it contains. Most obviously the right to be forgotten – essential in the age of social media – was guaranteed by the Charter.

We don’t know what the fall out of Brexit will be. The Government claims that they want a seamless transition. But there will be unintended consequences. Shouldn’t those inadvertently detrimentally affected by Brexit have all the protection they can get? Retaining the Charter provides that protection.

Will we end up with lesser protections in relation to data collection and retention, equality, consumer rights and health and safety because UK courts will no longer interpret those laws in the light of the Charter? And in turn, this inconsistency must impact on future trade negotiations with the EU. If human rights are less protected in the UK than the EU can a deal be struck?

At the heart of the Charter is the guarantee of human dignity. By snubbing the Charter, Theresa May’s Government is forcing a battle over dignity. For Labour this is a red line, and it’s a fight May’s Tories cannot win other than through a Pyrrhic victory. If the Prime Minister is serious about bringing people together through the Brexit process she should recognise the value the Charter offers her, both in Westminster and Brussels.