Future of equality and human rights protections rests with MPs

Posted On: 
11th June 2018

As the EU (Withdrawal) Bill returns to the House of Commons this week, MPs will have a unique opportunity to ensure that there will not be any diminution in people’s rights when we leave the EU, says David Isaac, Chair of the Equality and Human Rights Commission.

Even though it was introduced as a result of our membership of the EU, the EU Charter of Fundamental Rights fills in many of the gaps where protections did not previously exist in UK law, says David Isaac, Chair of the Equality and Human Rights Commission.
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The future of equality and human rights protections is in the hands of our MPs as the EU (Withdrawal) Bill returns to the House of Commons this week.

Amongst the large number of changes made to the Bill by the House of Lords were a small number of amendments aimed at ensuring that our current rights are maintained.  The amendment seeking to preserve the EU Charter of Fundamental Rights is key to guaranteeing that there is no diminution of fundamental rights and for that reason those who care about maintaining human rights protections were hugely relieved when the House of Lords voted, by a majority of 71, to retain the Charter. 

While the Government has said that it will ensure that our rights are not weakened when we leave the EU, it nevertheless believes the Charter will serve no purpose after Brexit.  However, others have demonstrated the benefits of retaining the Charter in domestic law.  The case for retaining the Charter is, I believe, a strong one.  Even though it was introduced as a result of our membership of the EU, the Charter fills in many of the gaps where protections did not previously exist in UK law. Legal analysis by an independent QC commissioned by the EHRC very clearly shows that significant gaps in protections will exist without the Charter - in relation to children’s rights, data protection and the right not to be discriminated against.  Indeed, without it many of these rights will not exist and will no longer be directly enforceable. The Charter is also a central part of the Good Friday Agreement and the Scotland Continuity Act and so its loss will have a direct impact on the very foundation of the United Kingdom.

For example, the Charter right to the protection of personal data goes further than any of our domestic laws - even now that we have GDPR.  In fact the Charter’s protections formed the basis for the landmark ‘right to be forgotten’ Google Spain case and without these remedies the ability to address the unauthorised access and misuse of people’s personal data, as we have seen recently with Facebook and Cambridge Analytica, will undoubtedly be diminished.

More recently, the furore over the treatment of Windrush generation also shows what happens when universal rights aren’t respected. In fact the Charter provides explicit protection to a right to dignity as well as a fair hearing regardless of immigration status.

It’s also important to stress that the loss of the Charter will also put at risk the Government’s own ambition to continue cross-border cooperation with the EU after Brexit in relation to justice and security.  So for example, the European Arrest Warrant must be operated in accordance with Charter rights. In fact, in February of this year the Irish Supreme Court refused to extradite a company director to the UK because of uncertainty over the future of the Charter in the UK and has referred the case to the European Court of Justice for clarification.

The Withdrawal Bill is actually intended to incorporate all EU law into domestic law to ensure legal certainly post-Brexit and for this reason it is unfortunate that the Charter has been singled out as an exception to this process.  I do accept that minor alterations will be needed to ensure that the Charter works effectively once we leave the EU, but this is also the case for other parts of EU law to be retained.

Amongst the other amendments by the House of Lords there is one that seeks to ensure that there is parliamentary scrutiny of any diminution of fundamental rights. As parliamentary sovereignty in decision-making was, I believe, one of the main drivers behind the decision to leave the EU, it seems counter-intuitive that changes to equality and human rights legislation could be made by Ministers without the need for Parliamentary debate.  This House of Lords amendment therefore seeks to ensure that any decisions affecting these protections should be subject to parliamentary review.

Without such scrutiny Ministers will be able to make changes to the fundamental rights currently protected by EU law, including protection for pregnant and nursing mothers, as well as maternity leave rights. In such important areas, however unlikely it is that changes might be made by Ministers, as a matter of constitutional principle the Commission believes that any proposed changes to rights of this sort should be made through primary legislation.

So the House of Commons will have a unique opportunity to ensure that there will not be any diminution in people’s rights when we leave the EU. Lords amendments that seek to ensure greater parliamentary accountability and continuity of trading arrangements are, of course, hugely important, but so too are our human rights protections. I am confident that we all want Brexit Britain to be an open and fair country where all citizens are able to flourish.  Our political representatives have a real opportunity this week to ensure that this vision becomes a reality.