The EU (Withdrawal) Bill is a damp squib. Its effect is to repeal the European Comminities Act 1972 (clause 1), whilst leaving in place all of EU law as it was in force in the UK prior to the date of Brexit (clauses 2-6). Ministers are then given the power to make consequential regulations (clauses 7-9), as is inevitable given that some of the law currently in force in the UK is in form and substance predicated on our being members of the EU. It is hard to see what other form such legislation could take. Clause 1 is probably surplusage, as EU law will already cease to apply to the UK and hence within the UK by virtue of the ticking bomb that is Art 50. The Bill is one of re-enactment, not repeal.
One point of interest is that the EU Charter of Fundamental Rights is “not part of domestic law on or after exit day” (Cl 5(4)), and so is not to be brought into UK law after exit. This is potentially politically significant as the shadow Brexit secretary, Keir Starmer, has given the failure to incorporate the Charter into UK law as a reason for voting against the Bill.
The Charter of Fundamental Rights
In order to understand the Charter, and its current position in UK law, it is useful to contrast the Human Rights Act. The Act implements Convention Rights into UK law in two ways. First legislation must be interpreted so as to be compatible with Convention rights. Second public authorities must not act in a way that is incompatible with Convention rights.
The Charter is addressed to the institutions of the EU, and to the Member States when implementing EU law. After Brexit, its applicability to institutions of the EU will no longer be a UK concern. The Charter is not a source of any freestanding rights against member states or anyone else, other than the institutions of the EU. It does however apply to EU law. Its effect can therefore be seen as analogous to the interpretive duty in the Human Rights Act, but only applies specifically to EU law. It cannot therefore be relied upon directly, but as part of a claim or defence to expand or restrict a right conferred by EU law.
If the Charter were in the same terms as the ECHR no problems upon Brexit would arise. It is however, a more “modern” instrument, covering many goods and interests that the 1950 Convention does not (eg rights to personal data, integration of those with disabilities, cloning) and some social rights the Convention’s drafters balked at including (eg rights to health, social security.)
One Charter right is deserving of special mention. Article 45 guarantees freedom of movement and residence for every citizen of the Union within the Member States. It must be doubtful whether Sir Keir’s new found enthusiasm for the Charter will extend to this central provision.
The British “Opt-out”
As the Charter applies to EU law and institutions, and not to UK law and institutions as such, the British (and Polish) “opt-out” from it, as negotiated by the then Labour government as part of the Lisbon Treaty that brought the Charter into effect, was peculiarly fatuous. It provides
The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
As the Charter does not extend that ability with regard to any member state anyway, this opt-out meant nothing at all.
The problem with the Charter is that it seems to have the vices of other human rights instruments, without the corresponding virtues. One of the central criticisms of human rights instruments is that they contravene the rule of law. Instead of detailed specifications of the duties we owe, what we find are goods or interests specified at a high level of generality that ground such duties. They not only permit but require judges to depart from the interpretation of other enactments that they would otherwise reach, based upon open textured values. This greatly increases the power (and obligation) of judges to make law.
It may be that we consider the resultant uncertainty and departure from democratic accountability to be justified where it forms part of an international legal order between signatory states. The European Convention is of this kind: a set of minimum standards that seek to ensure that all states meet certain standards. Incorporating such an open-textured set of values without more within a single system, such as the EU, and mandating judges to depart from the ordinary meaning of enactments based upon them, is hard to justify.
Upon Brexit, what are the options with respect to the Charter?
One option would be to apply it to all UK law and institutions. A new super-Human Rights Act. Nobody is suggesting that.
The second option would be to apply the Charter (presumably shorn of its embarrassing freedom of movement provision) to the re-enacted EU law. This seems anomalous. It would mean that one part of UK law was subject to a different human rights regime from the rest, based upon its historical source.
The third option is to do what the Labour government in 2009 tried, and failed to do, and opt-out of the Charter altogether. It is that option that the EU (Withdrawal) Bill seeks to achieve.