By Ila Tyagi 

In her second blog post Ila Tyagi, an LLM student in International Commercial Law at UCL, writes about the human rights implications of Brexit.

A hard Brexit would have a significant impact on the human rights framework in the UK. This is because UK derives a large portion of its human rights from EU law. Post-Brexit, the UK would not be required to comply with the various EU laws concerning human rights [1].

 The Issue of Residency Rights 

Residence rights of EU nationals in the UK and those of UK nationals in the EU member states are perhaps the most important human rights concern. These rights are being heavily negotiated and it is imperative that the government addresses this concern fully and quickly. A loss of these residence rights may mean a loss of homes and jobs for millions of people across the European continent [2].

The EU Sub Justice Committee of House of Lords has obtained evidence that shows that some of the EU citizens will not meet the criteria for a UK permanent residency despite living in the UK for over five years [3].  There is a potential for clogging the courts with lengthy litigation if the UK government decides to deport EU nationals [4]. However, this seems unlikely.

A joint committee of House of Lords and House of Commons has suggested in its report that the government address the issue of residency rights urgently [5]. They suggest that the government should give an undertaking to the effect that those people legally resident at a permanent cut off date would be guaranteed permanent residence rights [6]. This would help to ease the uncertainty surrounding this issue.

EU Charter for Fundamental Rights

Another issue of concern is the effect that Brexit will have on the EU Charter of Fundamental Rights (EUCFR). It applies to all EU Member States because it was incorporated into the Lisbon Treaty. It encompasses political, social, civil and economic rights along with rights for the elderly and the disabled [7]. These rights can be enforced in the courts of UK and ultimately the Court of Justice of the European Union. However, it is difficult to enforce these rights directly because not all of its provisions have a direct effect. Nevertheless, it forms an important measure for protection of human rights in the UK [8].

Brexit would mean that the Charter of Fundamental Rights would not apply to the UK anymore and that CJEU’s jurisdiction over UK is lost [9]. It remains to be seen what the UK government proposes to do with EUCFR guidelines and rights.

Workers’ Rights

The UK derives a large portion of its employment and workers’ rights from EU law.  Parental leave to care for a sick child or an infant, maternity leave, equal pay for equal work, 48 hours time off per week, rights against discrimination, protections for agency workers, and some health and safety concerns are the rights that could be affected by Brexit. This is largely because many of these rights or parts of them were not popular with the UK government when proposed. Therefore, there is a chance they might be repealed or amended in a post-Brexit Britain. However, PM Theresa May has given assurances that the existing protections for workers’ rights will be guaranteed so long as she is the Prime Minister [10].

European Convention on Human Rights (ECHR)

ECHR is often confused with EUCFR but it is important to note that ECHR is completely distinct from the EU. It is a separate agreement to which many EU Member States are signatories. The rights set out under ECHR can be enforced through the court of European Court of Human Rights in Strasbourg [11].  Even though the decisions of the Strasbourg courts are not binding, some of them have been incorporated as a part of EUCFR, which is binding on all EU Member States. Additionally, the UK Human Rights Act 1998 provides that UK courts should take into account any decision, declaration, judgment or opinion of the Strasbourg Court [12].  Therefore, the rights guaranteed under ECHR are protected through the UK Human Rights Act 1998.

Brexit does not affect the ECHR rights directly but there is a possibility that this might change. The Eurosceptic wing of Conservative Party is also skeptical about the ECHR. Even though there isn’t a formal proposal to leave the ECHR, many members of former PM David Cameron’s cabinet had argued for it [13].

Human Rights organisations like Liberty are campaigning against this because they believe that in a post-Brexit Britain, ECHR will be fundamental to preserving human rights in UK [14].

The Great Repeal Bill

The Great Repeal Bill is an instrument through which the government proposes to repeal the European Communities Act 1972 and put the application of EU law in the UK to rest [15]. This bill is supposed to be introduced in the parliamentary session commencing in February 2017. Since we know that EU law is the basis of many fundamental rights in the UK, the status of these rights remains unclear with reference to the Great Repeal Bill. There is no clear indication on whether the UK government intends to amend or repeal some of these rights [16].

The parliamentary joint committee report suggests that the government should lay out a detailed list of all fundamental rights under EU law and the government’s intentions towards their future [17]. The committee suggests that this should be done before introducing the repeal bill. They also recommend a draft publication of the repeal bill so that it can be subject to detailed scrutiny by the joint legislative committee [18].

Conclusion

     As seen above, Brexit has strong implications for the human rights protection in the UK. In order, to mitigate the uncertainty surrounding this issue, the government should act swiftly. A swift and clear plan of action would help to reduce the distress caused by the uncertainty surrounding the loss of jobs and homes that could be a potential consequence of Brexit.

[1] http://www.publications.parliament.uk/pa/jt201617/jtselect/jtrights/695/695.pdf

[2] Ibid. Page 4

[3] Ibid.

[4] Ibid. Page 5

[5] Ibid.

[6] Ibid.

[7] https://www.disabilityrightsuk.org/brexit-and-human-rights

[8]https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news-parliament-2015/brexit-human-rights-launch-16-17/

[9] n 3

[10] http://www.independent.co.uk/news/uk/home-news/brexit-latest-news-10-ways-eu-protects-british-workers-rights-in-danger-european-union-a7531366.html

[11] n7

[12] ibid.

[13] http://rightsinfo.org/brexit-doesnt-mean-uk-human-rights/

[14] https://www.liberty-human-rights.org.uk/human-rights/human-rights-uk-after-brexit

[15] n1 pg 6

[16] ibid.

[17] ibid.

[18] ibid.