LSE Commission on the Future of Britain in Europe | 1 European X xxxx Institute The implications of Brexit for fundamental rights protection in the UK Report of the hearing held on 25th February 2016 LSE Commission on the Future of Britain in Europe Rapporteurs: Jo Murkens Sarah Trotter 2 | The implications of Brexit for fundamental rights protection in the UK Foreword This is the report of the sixth session of the LSE Commission on the Future of Britain in Europe, which took place on Thursday 25 February, from 16.30-19.00h. The hearing drew together a number of politicians, academics, practitioners and activists to discuss the question of the implications of Brexit for fundamental rights protection in the UK. Dominic Grieve QC and Marina Wheeler QC presented opening remarks on the British Bill of Rights and the EU Charter of Fundamental Rights respectively, and a very rich discussion ensued. Participants presented perspectives on and analyses of the state and fate of fundamental rights protection in the UK, spanning the matters of the EU Charter of Fundamental Rights, the European Convention on Human Rights, British relations with the Strasbourg Court and the British Bill of Rights. The report seeks to convey the breadth and depth of the very balanced debate that took place at this session. I would like to express my gratitude to the participants for their expert contributions as presented during the session itself and by way of additional papers. Many thanks are also due to Marion Osborne and David Spence for their excellent support and assistance in the organisation of the hearing. Any remaining errors in this report are my sole responsibility. Dr Jo Murkens Department of Law, LSE. LSE Commission on the Future of Britain in Europe | 3 Contents 1. Introduction .......................................... 4 2. Summary ............................................. 5 3. The role and nature of the EU Charter of Fundamental Rights .................................... 6 4. The European Convention on Human Rights and British relations with the Strasbourg Court ...................... 8 5. The question of the British Bill of Rights .................. 10 6. UK narratives and the choice of reference points ........... 13 7. Conclusion .......................................... 15 Participants list .......................................... 16 4 | The implications of Brexit for fundamental rights protection in the UK 1. Introduction The subject of the sixth hearing of the LSE Commission on the Future of Britain in Europe related to the implications of a possible Brexit for fundamental rights protection in the UK. Currently, fundamental rights in the UK are protected by three interlinked regimes: EU law and the EU Charter of Fundamental Rights; the European Convention on Human Rights, whose effectiveness is enhanced by the Human Rights Act 1998; and domestic rights protection. The hearing drew together politicians, academics, practitioners and activists to discuss the state and fate of fundamental rights under these regimes in the light of the broader ongoing debate as to the UK’s continuing membership of the European Union. The panel discussion of the question ‘What would Brexit mean for the protection of fundamental rights in the UK?’ was sub-divided into four key topics: the role and nature of the EU Charter of Fundamental Rights (Section 1); the European Convention on Human Rights and British relations with the Strasbourg Court (Section 2); the question of the British Bill of Rights (Section 3); and the UK narratives and choice of reference points (Section 4). LSE Commission on the Future of Britain in Europe | 5 2. Summary The conclusions reached during this • The ongoing discussion over hearing were as follows: the British Bill of Rights and the impending referendum on continued • The EU Charter of Fundamental Rights EU membership both stem from an has become a prominent instrument. In attitude that favours the repatriation the event of Brexit, the Charter would of laws and rights. Participants were cease to apply, but it is likely to carry divided in their views on the nature and residual effects in domestic law. implications of this attitude but it was • The prisoner voting issue, which agreed that the central question here is has acquired political salience and that of the location of reference points. commanded media attention, has • Whilst Brexit would reduce the level of put a strain both on British relations fundamental rights protection in the with the European Court of Human UK, the implications of a possible Brexit Rights and on the reputation of the in this sphere would also be largely UK as an upholder and promoter of dependent on a number of variables, fundamental rights. This, in turn, namely as to what would happen to carries implications for the protection the EUCFR in relation to domestic law, of fundamental rights in Europe and at what would happen in relation to the international level more generally, the ECHR and to British relations with because the UK holds significant the Strasbourg Court more generally, influence in this sphere. and what would happen to the British • There is an important debate to be had Bill of Rights and the commitment of about the British Bill of Rights in this the Conservative government to the context, and about whether it would realisation of this. entail a reduced level of fundamental rights protection in the UK. As it stands, the indications indeed are that it would amount to an ‘ECHR-minus’. • It is arguable that a British Bill of Rights would give rise to a sense of ownership. However, no coherent set of ‘British values’ exists that could inform a Bill of Rights. This would need to be addressed before such a Bill would work in practice. 6 | The implications of Brexit for fundamental rights protection in the UK 3. The role and nature of the EU Charter of Fundamental Rights The EU Charter of Fundamental Rights instrument of holding EU institutions (EUCFR) was formally incorporated into to account also, along with the general EU law by the Lisbon Treaty, and it applies principles of EU law. Second, the Charter to the EU institutions and to the Member lacks democratic legitimacy in the UK. States when they are implementing, Although it was aimed at reaffirming derogating from, or acting in the scope rights, it has arguably gone further and of EU law. It sets out a detailed catalogue created new rights. The UK never intended of rights, including not only civil and it to operate as a set of standards against political rights, but also economic and which domestic legislation could be social rights. In practice, however, these struck down. It follows, finally, that the two ‘generations’ of rights are not Charter “is a recipe for incoherence”. accorded equal effect within the vision It makes no sense as a parallel body of of rights set out by the EUCFR, for the rights alongside the ECHR, and, moreover, Charter distinguishes ‘rights’ (which are erodes national sovereignty because of fully effective) and ‘principles’ (which are the impact of Charter cases on domestic not). And, as Catherine Barnard pointed law by virtue of the EU law supremacy out, economic and social rights are doctrine. The “proper role” of the Charter, mostly ‘principles’. Wheeler argued, is that of “a guiding set of principles for the institutions, not There was a general consensus among something that creates justiciable rights”. participants that the Charter has become a prominent instrument. Relatedly, the These concerns were shared and developed contribution of this instrument to the by others on the panel. Lee Rotherham areas of data protection, workers’ rights noted that these are also pertinent and women’s rights was noted. But beyond issues when it comes to the ECHR, which this basic position as to the prominent also poses particular challenges for role of the EUCFR, there was notably less accountability and democracy. Michael agreement. Two points of disagreement Pinto-Duschinsky meanwhile picked up the surfaced in particular: one as to the point about the nature and power of the necessity of the Charter and the other as rights set out in the Charter itself, arguing to what would happen to it in relation to that this instrument (and the Court of domestic law in the event of Brexit. Justice of the EU with it) is both more broad and more powerful than the ECHR, Marina Wheeler opened the debate on and that, moreover, it gives rise to an the necessity of the Charter, arguing that overly-complicated three-limbed system of “the Charter is a human rights instrument fundamental rights protection. It would be too far”. Her thesis was based upon simpler, he suggested, to have – via Brexit three propositions. First, the Charter is – the ECHR regime and domestic rights unnecessary. The European Convention protection alone. on Human Rights (ECHR) already controls state conduct, and would be an adequate LSE Commission on the Future of Britain in Europe | 7 For others, however, it is precisely the participants, including Dominic Grieve breadth of the Charter and the range of and Marina Wheeler, took the position rights it includes that constitutes its greatest that upon Brexit, the Charter would strength. Geoffrey Robertson spoke of cease to apply, Catherine Barnard argued the value, in particular, of the right to that in practice the position would be dignity in Article 1, which has been used more complicated. This would be so, she in litigation before the Court of Justice.1 suggested, because there would likely be The Charter differs from the ECHR in this “residual effects” of EU human rights law. respect, because dignity is not set out as an Barnard suggested that there are three express right in itself in the ECHR, featuring possibilities for dealing with existing only in the jurisprudence of the European domestic legislation already implementing Court of Human Rights as an underlying EU law: to leave domestic law as it is, with principle and value of the Convention parliamentary intervention on a case-by- more generally.