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Brexit: Fundamental Rights not for Bargaining

Susie Alegre, Caoilfhionn Gallagher, Angela Patrick, Katie O’Byrne

The Parliamentary Joint Committee on Human Rights (JCHR) today urges the Government not to use fundamental rights as bargaining chips in Brexit negotiations (Brexit and Fundamental Rights).  This is the latest in a series of reports from Parliamentary committees exploring the potential impact of Brexit including the implications for individual rights. So far, the analysis is limited in the absence of any clear Government plan on what Brexit will mean in practice.

The JCHR emphasises the importance of respect for the rights of EU citizens settled in the UK during Brexit. It calls for the treatment of individuals settled in the UK to be resolved early in the process.  This echoes earlier recommendations from the House of Lords EU Committee Sub-Committee on Justice.  Baroness Helena Kennedy QC, in her role of Chair of that Sub-Committee, stressed that the UK had a “heavy moral obligation” to take steps to protect the rights of EU citizens in the UK.

While the focus of litigation and political debate has so far been on the mechanics of the UK’s departure from the Union, Parliament shines the spotlight on how Brexit might impact on the fundamental rights protected in UK law.

Susie Alegre, Caoilfhionn Gallagher and Katherine O’Byrne submitted evidence to the JCHR inquiry highlighting key areas of concern including:

  • Human rights concerns in the political context of Brexit;
  • The risk to protections afforded by the EU Charter such as data protection and privacy; equality; children’s rights; and environmental rights; and
  • The implications of the loss of EU citizenship with a particular focus on the circumstances of the devolved nations and British Overseas Territories and Crown Dependencies.

Susie Alegre also submitted evidence to the House of Lords EU Justice Sub-Committee inquiry on acquired rights arguing that the loss of EU citizenship could come within the scope of the right to private life protected under Article 8 ECHR. She submitted that both the UK and the EU need to ensure that any negotiations on Brexit result in a solution that protects individual rights and respects the fundamental principles of equality and non-discrimination found in the ECHR and in the EU Charter. The House of Lords highlighted the significant risk of litigation if Article 8 ECHR is not respected in the withdrawal process.  Several members of Doughty Street Chambers continue to undertake independent consultancy work for clients on the human rights implications of Brexit.

The complexities of Brexit and the implications from a human rights perspective and the legal risks for the UK, other EU Member States and EU Institutions will only really become apparent once the negotiation process starts and concrete options are put forward. Pending the outcome of the Supreme Court ruling in the Miller case in January, the role of the UK Parliament in ensuring the protection of fundamental rights in the process of withdrawing from the EU is still unclear. 

In a recent report for The Thomas Paine Initiative, Mapping the Great Repeal, Angela Patrick has explained that while there are many legal, political and diplomatic steps to Brexit, assessing the implication for individual rights of the UK’s departure from the Union will be crucial both during the progress of the negotiations and the consideration of any Great Repeal Bill.

The European Parliament clearly has a  role in consenting to any withdrawal agreement under Article 50.  That consent can only be given if the agreement protects fundamental rights in line with the EU Treaties including the EU Charter on Fundamental Rights and Freedoms (Article 218(11), Lisbon Treaty). There are already signs that the European Parliament is taking its role in the process seriously, exploring ways of allowing individual UK citizens to retain their rights as EU citizens after Brexit. 

Doughty Street Chambers members provided early advice to the European Parliament on the implications of Brexit before the referendum. In May 2016, an independent report commissioned by members of the European Parliament and written by Caoilfhionn Gallagher, Katie O’Byrne and Keina Yoshida was launched at Westminster at a cross-party event.  The report concluded that serious human rights risks as well as economic and constitutional problems would arise from Brexit, particularly for Northern Ireland. We have also worked to highlight the human rights and constitutional issues for UK Overseas Territories and Crown Dependencies as well as the devolved nations and on the issue of migration. 

Interest and engagement in the protection of human rights during the Brexit process at Westminster is welcome. As a Chambers committed to human rights in the UK and internationally, Members of Doughty Street Chambers will continue to monitor developments around Brexit and will work to help ensure that detailed legal analysis of the impact on human rights remains at the forefront of this important constitutional shift.  Brexit is about people, not just policy.

Events

Date:
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Venue: Doughty Street Chambers, 53-54 Doughty Street, London WC1N 2LS
Date:
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Venue: Chatham House, London

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