Fundamental Rights In a Post-Brexit World



Brexit presents many concerns for the protection of rights that UK citizens depend on. In this explainer, we look what rights and protections currently exists and the implications leaving the EU will have on those protections.

How does the EU currently protect our rights?

There are a number of protections and rights that UK citizens currently enjoy under EU law. For instance, the EU Charter of Fundamental Rights brings together all the personal, civic, political, economic and social rights enjoyed by people within the EU in a single text. The Court of Justice of the European Union (CJEU) applies and protects the rights set out in the convention and the Fundamental Rights Agency provide assistance and expertise relating to fundamental rights to EU institutions and other bodies as well as to EU countries when they implement EU law.

EU law also protects a range of equality rights- equal treatment between men and women in matters of employment and occupation, equal treatment for men and women when it comes to social security and equal treatment for part-time workers are just some of the measures directed at equal treatment on the grounds of sex.

The European Convention on Human Rights (ECHR) protects the human rights of people in countries that belong to the Council of Europe- which is a different organisation from the EU.  The Convention include a number of articles protecting human rights- the UK made these rights part of domestic law through the Human Rights Act 1998. It is the European Court of Human Rights that applies and protects the rights set out in the Convention.

What will happen to these rights once we leave the EU?

Civil society organisations across the UK have repeatedly expressed concerns that Brexit could lead to a weakening of fundamental rights that UK citizens rely upon. These concerns relate principally to the fact that the Government has decided not to transfer the EU Charter of Fundamental Rights into domestic law. It also relates to the fact that individuals will no longer be able to take someone to court on the basis that EU general principles are breached. These are principles, such as the principle of equality principle, that UK citizens have relied on enforce their rights.

While both the Charter and the Convention contain overlapping human rights provision, they operate in separate legal frameworks. And while the UK Government has committed to continuing membership of the ECHR- the Charter is broader in its scope and has created new rights, in line with changing economic and social circumstances. For instance, Liberty explains that the Charter contains the ‘right to be forgotten’- a new right that is not included in the European Convention on Human Rights.

There are also several Charter rights not included in anywhere in domestic law. The Equality and Human Rights Commission’ independent legal advice demonstrates that certain rights, amongst them the right to protection of personal data, the right to education, rights to equal treatment and rights of the child does not exist in its entirety in domestic law.

The EU Withdrawal Act 2018- the landmark Brexit legislation that transposes EU law onto our statute book- also include powers handed to ministers which are so broadly defined they can potentially be used to amend, repeal or revoke rights that UK citizens have relied upon for the past 40 years of EU membership. The EU Withdrawal Act also means that individuals can no longer challenge (retained) EU law on the basis that they violate EU fundamental rights.

No one voted for lesser protection of rights, yet Brexit poses serious threats to the rights that UK citizens rely upon and enjoy. The Alliance and our members are working together to ensure that rights are protected as the UK makes its exit from the European Union. Below is a list of handy resources explaining what impacts Brexit will have on our rights:

Liberty: Bringing human rights home? What’s at stake for rights in the incorporation of EU law after Brexit?

Equality & Diversity Forum: Brexit, Equality and the Repeal Bill: briefing for members

BrexitLawNI Policy Report: Brexit, Human Rights & Equality