Not so Great? Unpicking the human rights impacts of the (Great) Repeal.

Shortly after the announcement of the Government's decision to preserve a post-Brexit "snapshot" of EU law through incorporation into domestic law, I was asked to consider what this Great Repeal Bill would mean for human rights.  

In Mapping the Great Repeal, I concluded that there would be likely losses as a result of Brexit; significant risks to the protections offered to individual human rights including in the legislative and policy programmes of the EU we would no longer participate in, and an increased diversion of Government attention away from the ordinary work needed to ensure individual rights are protected on the ground.  

The key losses were likely to be the removal of directly enforceable rights derived from EU law as a result of the EU Treaties, General Principles and the Charter, combined with the loss of the influence of the Court of Justice of the European Union.   Many other impacts would depend on the nature of our ongoing relationship with the EU, the outcome of the Brexit negotiations and the political imperatives of any post-Brexit Government at Westminster.  It was highly likely that the UK's withdrawal from the EU would diminish the protection offered to individual rights.  

Following the publication of the EU (Withdrawal) Bill last week, on my first impression, that negative assessment stands.  

The EU (Withdrawal) Bill

Broadly, the Bill proposes that EU law which binds the UK before "exit" day will become part of UK law thereafter (see Clauses 2 - 6).  A significant exception is the EU Charter of Fundamental Rights of the EU, which will not become part of domestic law, although the General Principles recognised in EU law which underpin the Charter will (Clause 5(4) - (5)).  The Bill then provides Ministers with broad powers in delegated legislation to give effect to the withdrawal agreement (Clause 9); to deal with the UK's international obligations affected by withdrawal (Clause 8) and to make changes in respect of retained EU legislation which is either "failing" or "deficient" (Clause 7). 

The proposals in the Bill are constitutionally significant beyond the termination of our relationship with the EU (for helpful introductions to the Bill's proposals, see here, here, here and here).  The Government has prepared an ECHR Memorandum to accompany the Bill, which is not yet available online.  However, there are some key issues worth comment now.

The Snapshot:  The Charter, retained EU legislation and human rights.

The "snapshot" will mean that many rights-enhancing measures will continue to operate in the UK following Brexit.  From maternity pay and working time, to data retention, that sounds like a good thing.   This initial optimism if warranted, is subject to numerous caveats and health warnings.  

What's in?

The Bill provides for the retention of a variety of domestic law measures derived from EU law and based on the European Communities Act 1972  (Clause 2: EU Derived Domestic Legislation). EU legislative instruments (Clause 3: Direct EU Legislation) and other rights arising from our membership of the EU and previously implemented by Section 2(1) ECA 1972 (Clause 4) will be converted into domestic law. 

The catch-all provision in Clause 4 - incorporating all rights, powers, liabilities, obligations, restrictions, remedies and procedures which would have had direct effect in the UK by virtue of Section 2(1) - is explained in the Explanatory Notes.  This would incorporate directly effective rights afforded to individuals by the EU Treaties (for example, the rights of free movement in the TFEU (Article 45)), for example.  Together these converted rights are called "retained EU law" (Clause 6(7)).  

Directly effective rights in any Directive recognised before Exit day will become part of domestic law.  Such rights not so recognised will not (see Clause 4(2), EN [92]).  The example given in the Explanatory Notes is the 1996 Hague Convention on cross-border cooperation on the protection of children, which includes a number of directly effective provisions for the protection of children in cross-border cases, including on jurisdiction and the enforcement of judgments.

The implications of these provisions are so broad that it may be easier to consider what isn't included.  It will bring into domestic law 1,000s of pages of EU law, including in Regulations, Directives and Decisions from the EU.  

This will include the incorporation of measures from Directives governing individual rights, from workers' rights and the environment to data protection and consumer rights.   This won't change the substantive rights enjoyed by individuals, but how they enjoy them.  Rather than drawing on EU law derived rights, these will be enjoyed as part of domestic law. 

The extent to which these measures will need to be amended or modified will depend on our relationship with the EU, but it is likely to be significant, including for the protection of human rights offered to fundamental rights for members of the EU and its citizens.  

Importantly however, the translation of these measures into our domestic constitutional law framework, without the backstop of minimum cross-Europe guarantees, leaves the law subject to Parliamentary sovereignty.  Although incorporated by this Parliament, any new composition is free to change, remove, amend or modify those rights, if not using the powers in the Bill, by ordinary primary legislation. 

What about the Charter?

The most widely reported exclusion from the snapshot is the Charter of Fundamental Rights and Freedoms of the European Union. Clause 5(4) provides expressly that the Charter will not be retained.  However, the General Principles of EU law will be, including in so far as those principles reflect the provisions of the Charter (Clause 5(5)).  

The Charter was intended to reflect the General Principles already recognised by the Court of Justice of the European Union ("CJEU") and its predecessors. The case law relevant to the General Principles - incorporating rights ranging from habeas corpus to proportionality - remains relevant to the interpretation of any retained EU law (Clause 6(3); 6(7)).   However, case law relevant to the Charter is excluded (see Clause 6(7)), whether it derives from domestic courts or the CJEU.  

Without engaging with the political hostility directed at the Charter, the exclusion of the Charter from the measures incorporated raises many issues:

• First, its application and interpretation of the General Principles is more accessible than the law previously developed by the General Principles.  Like the domestic common law, the protection of human rights through the recognition of General Principles by the CJEU was a valuable but uncertain process.  
• Second, while a number of the rights which the Charter recognises arise from the ECHR, others go beyond the Convention rights and reflect General Principles arising from the wider application of the treaties and the shared experience of the Member States.  So, for example, Title VI (Solidarity) protects a range of social and economic rights including the right to health and the right to social security. Citizenship rights protect a range of rights with no direct equivalent in the ECHR, including, for example, a right to good administration. Some of those rights which are also included in the ECHR have been updated or more broadly expressed in the Charter. So, the right to equality expressly protects against discrimination on the grounds of sexuality (Article 21).  These rights, in so far as they reflect General Principles of EU law have not be subject to significant litigation in Europe so far, and their elaboration at the CJEU will not now be reflected in UK law, except in so far as our courts consider them relevant to General Principles and not the Charter standing alone.  Any new case law will not bind domestic courts, although they will be able to consider it like any other comparative jurisprudence.
• Thirdly, there appears to be no explanation of how a divergence in standards from the Charter might impact upon a trading relationship with the EU.  While, of course, third states where the Charter does not apply do maintain functioning trading relationships with the EU.  However, the question of equivalence will remain a live issue (and one which may be determined by the CJEU (See Schrems v Data Protection Commissioner, Case C-362/14, 6 October 2015).
•  Finally, it is unclear how the application of retained EU law will apply where that laws development has been subject to an interpretation grounded in the application of the Charter.  Since the adoption of the Charter, it is rare that the CJEU will refer to General Principles, even where they offer identical protection.  So, for example, in Tele-Sverige & Watson C-203/15/C-698/15, the CJEU adopted an interpretation which held that general and indiscriminate retention of data is incompatible with the requirements of Directive 2002/58 on the confidentiality of electronic communications (the Directive on the Privacy of Electronic Communications) read in a manner consistent with the protection for individual privacy and personal information provided by the Charter (Articles 7, 8, 11 and 52(1)) (see [81], [92] – [94]).  Will domestic courts now be free to adopt their own interpretation of that underlying Directive and its implications for privacy rights in the UK?  (If so, this might be a bitter sweet victory for the Secretary of State for Exiting the EU, who brought the original litigation in his own name in Davis & Watson.)

Specific problems arise in unpicking the Charter from our law.  Not least, the interpretation of the ECHR by the European Court of Human Rights may continue to be influenced by jurisprudence from the CJEU in cases against other members signed up to the Union.  These are but a few headlines.  

Human rights challenges and EU fundamental rights

Although the Bill would incorporate various EU derived rights into domestic law, those will no longer have the same force which EU law now offers protection to fundamental rights by virtue of the ECA 1972.  Individuals will lose significant opportunities to challenge the substance of EU legacy legislation and the compatibility of domestic law, policy and practice with fundamental rights protected by EU law that they have while the UK remains a member of the EU and the ECA 1972 remains in force.

Currently, if a piece of domestic law is inconsistent with EU law, the ECA 1972 operates so that the Courts must disapply the inconsistent domestic provision, even in primary legislation.  Domestic courts can refer difficult questions to the Court of Justice of the EU ('CJEU').  This creates a powerful tool in human rights cases where an inconsistency in domestic law or practice is challenged as inconsistent with the Charter, the General Principles of EU law or other measures of EU law.  

Firstly, post-Brexit, the power to quash domestic law or practice in any EU-rights challenge will drop away: 

• The principle of supremacy is disapplied by the Bill in respect of any enactment or rule of law after exit day (Clause 5(1)).  
• The Bill provides that supremacy "continues to apply" to the interpretation of retained EU legislation and any other enactment or rule of law passed or made before exit day (Clause 5(2)).  
• That might suggest that a challenge based on retained EU legislation (other than reliant on the Charter) could be brought to challenge the substance of UK law after Brexit, with the result that, provided both enactments were made before exit, the Court would be required to continue to prefer EU law.  
•  However, Schedule 1 provides that no Court or Tribunal can "disapply or quash any enactment or any rule of law" or "quash any conduct or otherwise decide it is unlawful" because it is incompatible with any of the General Principles of EU law.  This bar is subject to no limit in respect of pre-exit and post-exit challenge (Schedule 1(3)(2)).  
• It is far from clear whether the Courts are bound by the continuation of the application of supremacy principle to treat retained EU laws other than the General Principles as superior to any domestic legislation adopted prior to exit and whether the powers to quash or disapply conflicting domestic provision will continue.  Might the Courts yet to be bound to quash or disapply pre-Exit legislation if the principle of supremacy so applies to retained EU law?
• However, it is certain that, in respect of post-Exit enactments, nothing in retained-EU law can be relied upon to quash or disapply domestic law, even when it affords specific protection for individual rights.

Secondly, the role of the CJEU and its jurisprudence is limited or removed by the Bill:

• It appears that it is the intention of the Bill that - at least for the Supreme Court and the senior courts in Scotland sitting as the last route of appeal - they will not be bound by any legacy of our membership of the EU, whether in General Principles or the other case law of the CJEU.  
• Clause 6(1) removes the right of any UK Court or Tribunal to make any reference to the European Court.
• Clause 6(4) provides that the views of the CJEU will bind the lower courts in respect of pre-Exit jurisprudence, but the Supreme Court (and Scots courts as relevant) will be free to treat it as they would one of their earlier precedents and may depart from it.  All post-Exit jurisprudence might be considered by the domestic courts as relevant - like any comparative law - but they are not bound by it (Clause 6(2)).

Finally, the Bill and Brexit will limit the ability of individuals to challenge whether law derived from our EU membership is incompatible with individual human rights. 

Currently, challenges to the legitimacy of individual measures derived from EU law - whether in incorporated in Regulations or arising from obligations in Regulations - can be challenged because both the domestic provisions and/or the underlying EU provisions are incompatible with human rights standards in the treaties, the General Principles and the Charter.  If either the domestic provisions (see above) or the EU law provisions are found to be inconsistent with individual rights they may be quashed, in the latter instance, by the CJEU. The Bill makes clear that any existing means of challenge to the validity of retained EU law, whether inherent in retained EU law or otherwise, no longer has effect (Schedule 1(1)).  The Bill empowers Ministers to provide for such a challenge to be made to a "public authority" (Schedule 1(2) - (3)).

If the Bill is approved, it is far from clear what statutory status retained EU legislation will have.  They will have effect in domestic law by virtue of the Act, an instrument of primary legislation.  However, it makes clear that, for the purposes of the Human Rights Act 1998, that retained EU legislation is primary legislation.  So, any claim that a measure of retained EU legislation operates in a way which violates Convention rights and cannot be interpreted compatibly, can only be subject to a declaration of incompatibility (Section 4, HRA 1998).  If retained EU legislation is treated as primary legislation for the purposes of the ordinary public law, a direct common law challenge to its validity is likely to be extremely difficult.  Any measure discovered to violate any provision of the Treaties or the General Principles; or Convention rights, will remain in force subject to repeal or amendment by Parliament.  Thus, by incorporating wholesale the body of EU legislation into domestic law, it is, at least in this respect, less vulnerable to challenge on human rights grounds.  

Remedying "failures" and "deficiencies" in the law post-Brexit

Although the Bill proposes to freeze that "snapshot" in place, the Bill grants Ministers broad powers to rewrite the law to deal with either "failures" or "deficiencies" arising from retained EU legislation (Clauses 7 - 9).  

This will clearly include technical tidying to remove clear oddities where domestic law refers to an EU institution whose jurisdiction we no longer subscribe to.  However, it also could and would appear to have much wider scope.  Ministers might create new public bodies, new criminal offences may be promulgated and changes made to existing rights.  The Bill grants Ministers the power to amend the Bill itself and other pieces of primary legislation.

The limits of the delegated powers in the Bill

The Bill itself includes few express limits on what Ministers might do by secondary legislation.  The first limitation is, of course the language of Clause 7, and the powers are limited to legislation which is "considered appropriate" by Ministers to "prevent, remedy or mitigate": (a) any failure of retained EU law to operate effectively; or (b) any other deficiency in retained EU law.  Such failure or deficiency must arise from the withdrawal from the EU (see Clause 7(1)).  

Clearly, the interpretation of any measure which will interfere with common law fundamental rights or with Convention rights might require strict interpretation of each of those provisions (see s 3 HRA 1998; and for example, R (Evans) v Attorney General [2015] UKSC 21).  The Explanatory Notes provide some elucidation of the Government's intention which explains precisely how broad these powers might be.  While the Bill will preserve the rights of citizenship owed to EU citizens in the Treaties, and the right of free movement, the international law obligations which underpin the reciprocal obligations of the EU to the UK fall away.  This may mean that those provisions are considered deficient and in need of correction: (see full quote below) (EN, [25]).  Thus, the Government fully intends that the treatment of the rights of EU citizens might be ultimately determined by secondary legislation.  The question remains whether the Bill is sufficiently broad to do more than to remove the problem.  Could the rights offered to EU citizens be substantially altered?  Would this be a measure appropriate to prevent, remedy or mitigate the failure or deficiency in the underlying EU retained legislation?  Far from adding certainty to the Government's intentions, this highlights how much might be left to Executive discretion and subsequent legal challenge.

Any delegated powers exercised under the Bill will be by statutory instrument. It appears that - unlike the underlying retained EU legislation - the Regulations made pursuant to the Bill will be subordinate legislation for the purposes of the Human Rights Act 1998 (See Schedule 8(1))(Retained EU law is to be treated as primary legislation (see Schedule 8(19)).  Any changes to retained EU law made using powers under the Bill may be barred if it violates with Convention rights (see s.6 HRA 1998).  So, if the treaty provision which provides for citizenship rights is retained EU legislation (see EN, pp24 - 15), those rights may be difficult to challenge.  However, proposed modifications to that right under the Bill which violate Convention rights might be struck down?  It will be difficult to construct an argument that the underlying powers in the Bill would require Regulations to be made in such form as to preserve incompatible regulations despite the application of the HRA 1998.  This may be an argument to support the conclusion that any change which engages Convention rights and which might lead to a violation should be subject to enhanced scrutiny or reserved to primary legislation.

What now?

The focus of much commentary on the Bill has been critical of constitutional overreach.  However, this Bill will only pass with Parliament's approval.  If Parliament chooses to approve the Government's route to Brexit, it will abrograte significant responsibilities for decision making, including on how the law might affect our rights, for years to come.  It will create a dangerous period of constitutional precedent.  The ability for a judicial challenge will be circumscribed by the language of the final Bill.  

The endurance of individual rights which are an important legacy of our EU membership may be largely determined by Executive restraint or challenge in the courts pursuant to the common law or the HRA 1998.  It is not hard to see that the exercise of rewriting the post-Brexit legal landscape may lead to years of litigation and to further tension around the proper constitutional role of the judiciary.  This may give unjustified fuel to the anti-HRA arguments now placed on the backburner by a Government known to be hostile to the Convention.

There are, of course, options open to Parliament:

• Some have suggested full incorporation of the Charter.  This is unlikely to be politically palatable to the current Government.  The incorporation of mirrored standards, including on workers' rights, citizens' rights and equality, would require a significant debate in Parliament about the protection of such rights; and whether those should be limited only to retained EU law or otherwise applicable is only one question which would arise.  Whether a serious constitutional conversation about the expansion of rights guarantees is sustainable in an environment where the Government is hostile to our existing constitutional provision for rights protection is a practical but important consideration.  On the other hand, the removal of the Charter's protection and the subsequent development of the General Principles subsequent to its coming into force, will clearly diminish the protection offered to individual rights by UK law now.  The role for the Charter in the interpretation of retained EU law - and the protection of our rights - will be a crucial part of the forthcoming debate in Parliament and beyond. 
• If a commitment to the incorporation of the Charter rights is infeasible, others have suggested specific rights to protect core parts of the Charter which provide specific context for a lot of law which will become retained EU law and which supplement the HRA 1998 significantly, such as the creation of a freestanding right to equality in law, to reflect the standards in the Charter to which the UK freely agreed.
• It remains open to Parliament to provide greater specificity over how and when the proposed delegated powers will be exercised.  Greater specificity may reduce the scope of common law challenges grounded in legality or fundamental common law rights.  However greater specificity could reserve to Parliament responsibility for legislating in areas most likely to lead to intrusion on individuals' human rights, including those protected by the Charter and in our international human rights obligations. 
•  Not all Brexit activity is dealt with in this Bill.  Specific changes are being considered in primary legislation, in multiple related Bills expected this year, including an Immigration Bill.  There may be some areas of law which Parliamentarians might consider should not be subject to post-Brexit tinkering in delegated legislation.  
• The Joint Committee on Human Rights has been historically critical of the use of delegated legislation to restrict individual rights and it regretted that little planning had been done for the impact which withdrawal could have on human rights.  Other Committees, including the EU Justice Committee has raised similar concern (see here, for example).  Better late than never, the Government must face up to the implications which Brexit may have on individual rights, including in the proposals in this Bill.

The negotiations on our future relationship with the EU are crucial.  Just how the law is reshaped will depend upon the deal officials are now working towards in Brussels.  Unfortunately, a scan of both the Explanatory Notes to the Bill and the Sunday papers suggest that the most likely outcome will not be a positive one.  The Government appears to be planning - or hoping - for no deal to be reached.

Deal, or no deal, the constitutional significance of this Bill can't be understated.  There is work to be done at Westminster.