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“The loss of the Charter will be felt in the years to come”– Our human rights protections after Brexit

Posted on Thursday, December 31st, 2020

By Debora Singer, René Cassin volunteer

When the UK left the European Union at 11pm on 31 December 2020, we lost one set of important human rights protections.  This is because the UK will no longer have any obligations under the Charter of Fundamental Rights of the European Union (the Charter).

Although, we will still have the UK’s Human Rights Act and the European Convention on Human Rights (the Convention), withdrawing from the Charter will leave us with a weakened human rights framework.

The EU Charter of Fundamental Rights

The Charter serves as the EU’s own bill of rights. Coming into effect in 2009, it sets out rights that must be respected by the European Union, all EU institutions and the Member States when implementing EU law.

As such, the Charter is broader in scope than the European Convention, as it includes economic, social and cultural rights as well as political and civil rights and extends some Convention rights. For example, the right to a fair trial is extended so that people have a right to legal aid if they lack resources to ensure effective access to justice.

It provides minimum standards and includes general principles such as a free-standing right to dignity and to equality which the Convention does not.  Specifically, the Charter states that human dignity is inviolable and must be respected and protected and that everyone is equal before the law. 

Going beyond the Convention, the Charter includes further grounds to prohibit discrimination including disability, age and sexual orientation. 

Crucially, the Charter is more up to date than the Convention including rights related to data protection, workers’ rights, environmental rights and trafficking – all issues that were not relevant or considered back when the Convention was drafted in the aftermath of the Second World War.

What gaps will the Charter leave?

When the UK incorporated all EU law into UK legislation, through the European Union (Withdrawal) Act 2018, it left out the Charter. 

Some Charter rights are duplicated in other legislation such as the Human Rights Act 1998, Equality Act 2010 and the UN Convention on the Rights of the Child.  However, there remain gaps.

Human rights protection will be reduced because we no longer have:

  • the general principles of the right to dignity and the right to equality.  
  • freestanding protection against discrimination.
  • protected characteristics that are not amongst the nine listed in the Equality Act 2010, such as ethnic or social origin, class, and language.
  • the opportunity to add other protected characteristics without going through Parliament.  

Our human rights mechanisms will be reduced because it will no longer be possible for:

  • anyone with sufficient interest to bring a case.  
  • claims to be brought between two private parties, organisations, or individuals.
  • domestic courts to immediately disapply primary legislation that is incompatible with human rights.
  • the Charter to be used to interpret cases considering developments in social customs and technology. The Charter will only be used as a means of interpreting retained direct EU law.  

Case studies

In a case taken by Liberty, John Walker used the Charter’s general principles to allow same sex partners to receive the same pension benefits as heterosexual couples (rather than only being backdated to 2005 when the UK’s law on civil partnership came into force). 

Unison used the Charter to challenge the introduction of fees for Employment Tribunals and the fees were scrapped with immediate effect.

Ms Benkharbouche and Ms Janah were domestic workers from Morocco working in Embassies in London.  They were paid below the national minimum wage, forced to work unlawful hours, and were unfairly dismissed. They used the Charter to prevent their employers claiming diplomatic immunity to avoid justice.

Conclusion

The UK’s Equality and Human Rights Commission has outlined the steps the government should take to ensure continued protection of equality and human rights as provided by the Charter, including the introduction of constitutional rights to equality that every law and government action can be tested against and ensuring that every UK and devolved government future trade deals must contain a human rights and democracy clauses to help advance equality and human rights.

Ultimately, through losing the Charter we are losing accountability for our human rights and the processes for accessing them.  This lack of human rights protection and mechanisms will be particularly felt in relation to general rights to dignity and equality affecting not only marginalised and disadvantaged groups.  Whilst we will (hopefully) continue to benefit from the Human Rights Act and the Convention, the loss of the Charter will be felt in years to come.