by Chiara Graziani*
On the political front, Brexit negotiations are proceeding; at the same time, from a strictly legal perspective, the tool with which Brexit will be managed at domestic level, i.e. the European Union (Withdrawal) Bill (EUWB), is making progress in Parliament. On December 20, 2017, it was considered and amended by a Committee of the Whole House. The next step will come on January 16-17, 2018, when MPs will examine the Bill at remaining stages.
One of the most consequential – and politically challenging – amendments made in the December session subjected the final terms of withdrawal to a statute of the Parliament (sec. 9(1)). Nonetheless, there are sections of the Bill that did not undergo changes during the last reading, but that are equally controversial. These include its treatment of EU provisions related to human rights, in particular those enshrined in the Charter of Fundamental Rights of the European Union (CFREU).
As is widely known, the EUWB’s main purpose is to remove the competence of the EU to legislate for the UK by repealing the European Communities Act 1972 and to deal with existing EU law by converting it into UK law. This will create a new category of domestic law, i.e. “retained EU law”.
As a general rule, the whole body of EU law will be converted by the EUWB. Nevertheless, there are some explicit exclusions; among them, clause 5(4) mentions the CFREU. In parallel, clause 5(5) establishes that this shall not prejudice «any other fundamental rights and principles which exist irrespective of the Charter» and that any case law referring to the CFREU will be read as references to «corresponding retained fundamental rights and principles».
It is worth recalling that, when the Lisbon Treaty was signed, the UK and Poland obtained a Protocol (Protocol 30 to the Lisbon Treaty) securing that the CFREU is not interpreted as imposing new obligations on them. However, Protocol 30 is generally not understood as an opting-out, but rather as an interpretative declaration. Thus, the CFREU binds the UK, as well as the devolved legislatures, and many of its provisions are directly applicable and have direct effects (meaning that citizens can invoke them before domestic courts against public authorities).
Excluding the CFREU from retained EU law means that it will cease to be applied in the UK after exit day. The Government maintains that this will not impair the protection of fundamental rights at domestic level, since the CFREU did not establish new rights and principles, but merely codified existing ones (also as emerging from the case law of the European Court of Justice). The issue has been at the centre of the political debate, since the Labour Party and the Liberal Democrats criticised the exclusion of the CFREU from conversion and argued for incorporating it into UK law after exit from the EU. Yet, their voice was not strong enough, since relevant provisions of the Bill have remained unchanged.
In order to understand whether the Government’s claim, arguing that no negative effects on the level of human rights protection will derive from the exclusion of the CFREU from retained EU law, is well-founded, two issues deserve consideration. First, will the overall UK framework protecting human rights, meaning all sources and remedies on which one can rely in case of alleged human rights violations, be able to compensate for the terminated application of the CFREU in terms of extent and standard of protection? Second, how will clauses 5(4) and 5(5) work and how will they fit in the whole conversion mechanism?
Concerning the first issue, besides the CFREU, the relevant sources guaranteeing human rights in the UK are: the European Convention on Human Rights (ECHR); international human rights treaties applying to the UK; rights and principles enshrined in common law and statute law.
The ECHR, incorporated by the Human Rights Act 1998, is undoubtedly the major source protecting rights in the UK, to the extent that it is often considered to be the UK bill of rights. Nonetheless, rights guaranteed by the ECHR do not correspond exactly to those of the CFREU. Human dignity and data protection, for example, are explicitly enshrined in the CFREU, but only interpretatively inferred from the ECHR. Secondly, remedies under the CFREU are different from those under ECHR. In fact, prior to Brexit, if a UK law contrasts with a directly applicable provision of the CFREU, UK judges will disapply it (if primary law) or quash it (if secondary law). By contrast, if a UK law violates the ECHR, there will merely be a judicial declaration of incompatibility, not resulting in the invalidation of the domestic law.
Furthermore, while it is true that there are international human rights treaties that safeguard rights corresponding to those ensured by the CFREU, not all of them have been ratified by the UK. Others have been ratified, but never transposed into domestic law.
With regard to common law and statute law, they protect a variety of fundamental rights and customary international law is included in common law, as well. Nonetheless, in many cases the CFREU case law has become part of common law, so there are frequent overlaps.
These considerations appear enough at least to cast doubt on the adequacy of the remaining legal tools protecting human rights to fully compensate for the disapplication of the CFREU.
Shifting to the second issue, i.e. a more detailed examination of sections 5(4) and 5(5) EUWB, several aspects deserve attention. First, section 5(5) says that excluding retention of the CFREU shall not result in an impairment of fundamental rights that exist irrespective of it. However, as just seen, it is difficult to maintain that all of these rights offer the same standard of protection as the CFREU. Second, the wording of section 5(5) also implies that UK citizens can benefit from guarantees of fundamental rights deriving from retained EU law: it is not only the CFREU that secures rights, but also treaties, as well as several regulations and directives, that do so (and these are all included in the body of retained EU law). Third, reading these two clauses in combination with clause 6(7) shows that principles laid down by the ECJ on the basis of the CFREU are excluded from retained EU case law. Therefore, this is an additional way to limit any (even indirect) retained effect of the CFREU after exit day.
However, the described mechanisms do not entail that there will be no possibility at all to substantively (even if indirectly) apply the CFREU to the UK even after exit day. Here, reference is to areas in which the UK will continue to cooperate with the EU as a third country. In these cases, EU law – and the CFREU, as well – has an extraterritorial reach: to engage in cooperation, third countries must comply with it in order to ensure equivalent protection. For example, there are “adequacy decisions”, which certify that third countries stipulating agreements with the EU in the field of data exchange ensure a level of data protection “essentially equivalent” to that guaranteed in the EU.
The emerging framework appears quite puzzling and complex. Excluding the CFREU from conversion may run the risk of spreading uncertainty. In particular, when domestic courts have to adjudicate controversies involving human rights, it may have negative consequences on their standard of protection.
* Chiara Graziani is a PhD student in Comparative Constitutional Law at the University of Genoa, Italy, and a Teaching Assistant at Bocconi University, Milan, Italy, where she graduated magna cum laude in 2016. Chiara spent study and research periods at the London School of Economics and Political Sciences, London, UK and at the University of Valencia, Spain.