Following a short inquiry, the Joint Committee on Human Rights has today published The Human Rights Implications of Brexit, in which it argues that the Government must not use fundamental rights as a bargaining chip and calls on the Government to give an undertaking to protect the residence rights of EU nationals in the UK. There is a summary here.
The Committee says that, while many fundamental rights are underpinned by EU law, it is not clear whether the Government intends to remove any rights which UK citizens currently possess under EU law – and, if so, which rights are under threat. It demands that any future legislation should include safeguards to fundamental rights and that Parliament should have the opportunity to debate, amend and vote on any proposed changes.
The Committee’s conclusions are as follows:
1. While it is plain that the Government feels that it is not able to give what it describes as a ‘running commentary’ on Brexit negotiations, it is regrettable that it has not been able to set out any clear vision as to how it expects Brexit will impact the UK’s human rights framework. (Paragraph 9)
2. The Government seemed unacceptably reluctant to discuss the issue of human rights after Brexit. The Minister of State responsible for human rights was either unwilling or unable to tell us what the Government saw as the most significant human rights issues that would arise when the UK exits the EU. (Paragraph 21)
3. We were also surprised to be informed that the Government saw the question of domestic protection for fundamental rights as a matter for negotiation with the other EU Member States. Unless the Government is prepared to diminish such protections significantly, it is difficult to imagine why it considers that this should be a matter for negotiation and how this would be negotiated reciprocally with the remaining EU Member States. (Paragraph 22)
4. On the question of residence rights, we believe that it is not appropriate to treat individuals’ fundamental rights as a bargaining chip. Notwithstanding the moral imperative to respect the rights of EU nationals, there is also a considerable practical impediment to treating such rights as negotiable. It is not realistic to imagine that the UK Government would be in a position to deport the large numbers of EU nationals currently in the United Kingdom. Under Article 8 of the ECHR, individuals are entitled to respect for their private and family life and home. (Paragraph 50)
5. While these rights are in no way absolute, it would not be possible to establish a bright-line rule that would allow the deportation of EU nationals simply on the grounds that they had only been resident for a fixed period of time. Other factors would certainly be relevant and each case would have to be considered on its own facts. In such circumstances, there would be the potential for significant, expensive and lengthy litigation which could lead to considerable uncertainty for a prolonged period of time and could potentially overwhelm the UK courts and tribunals system.(Paragraph 51)
6. These difficulties would be mirrored in the remaining 27 EU Member States, if they sought to deport UK nationals, since they have all ratified the ECHR. This reinforces our conclusion that there would be significant practical impediments to expelling individuals after Brexit. (Paragraph 52)
7. We recommend that the Government addresses the issue of residence rights urgently. This could be done by providing an undertaking to the effect that all of those legally resident at a reasonable cut-off date would be guaranteed permanent residence rights. The Government should also seek to safeguard the residence rights of UK nationals resident in other EU member states at the outset of its Article 50 negotiations by way of a separate preliminary agreement. This ought to be done as soon as possible: if such action is not taken, individuals will be subject to continuing and distressing insecurity during two years of potentially protracted negotiations.(Paragraph 53)
The Charter of Fundamental Rights and other EU rights and the ‘Great Repeal Bill’
8. It is not clear to us why the rights of workers should be treated any differently to other fundamental rights. (Paragraph 76)
9. We recommend that the Government commit to publishing its proposed ‘Great Repeal Bill’ in draft, to ensure that it receives adequate consideration in Parliament, preferably by a Joint Committee. We also take the view that prior to publishing the draft legislation, and before triggering Article 50 of the Treaty on the European Union, that the Government should set out in detail what approach it expects to take in respect of all fundamental rights currently guaranteed under EU law. (Paragraph 91)
10. Assuming that the Repeal Bill safeguards existing rights under EU law, this would not stop a future Parliament from repealing laws that it did not consider desirable. Without the underpinning of EU law, the rights preserved under the Repeal Bill would be subject to amendment. Under the UK constitution, outside the auspices of EU law, there is no way to entrench fundamental rights. However, the Government must resist the temptation to allow laws relating to fundamental rights to be repealed by secondary legislation for reasons of expediency. If rights are to be changed there should be an opportunity for both Houses to seek both to amend and to vote on such changes. (Paragraph 92)
11. We also note that even if current EU laws are preserved by the Repeal Bill, this would not allow for new developments in EU law to be implemented automatically. This would apply both in relation to future EU regulations and directives on rights and case law of the Court of Justice of the European Union. The Government should issue detailed statutory guidance on the status of existing case law. It will also have to determine how it will approach the status of future EU law and CJEU decisions to ensure that it is not isolated from developments emanating from the EU. The question of how fundamental rights will be enforced going forward will also be of central importance. (Paragraph 93)
12. The EU has included human rights clauses in trade agreements for many years. In circumstances where the UK exits the EU, if it has to negotiate and enter into trade agreements with other states, the Government should, at the very least, ensure that the standards included in current agreements are maintained. (Paragraph 105)
13. Any dilution of standards would give rise to a potential imbalance between UK standards and EU standards which would be extremely undesirable. There is, in principle, an argument to be made that if the UK enters into any new agreements, this is an opportunity to raise standards. This is a subject to which we will return to in our inquiry on Human Rights and Business in 2017. (Paragraph 106)”
The report provoked a sharp response from the Judicial Power Project, whose authors point out – quite correctly, in my view – that
“there is clearly no fundamental human right on the part of all EU nationals resident in the UK at present to remain permanently in the UK. The rights of legal residence such nationals now enjoy are obviously rights that are contingent on the continuing force of the EU treaties.”
I would also go some way with them in their dismissal of the assertion that “membership of the EU has been pivotal to the UK’s record of rights protection” – what has undoubtedly been pivotal has been the UK’s membership of the ECHR. The authors of the Project’s report are on less secure ground, however, when they contend that, after Brexit, rights
“will once again be secured by a sovereign Parliament, acting within a mature political tradition and answerable to the electorate, and by an executive that is accountable to Parliament and subject to the ordinary law of the land, including the rulings of independent courts.”
If by that they mean that human rights in the UK will be protected by continued adherence to the ECHR, all well and good. If they mean that “a sovereign Parliament” and executive will be solely responsible for benchmarking and protecting human rights, I am much less sure. Citizens sometimes need to assert their rights against Government: absent an enforceable supra-national guarantee of human rights, it might be too easy – or so it seems to me – for the Government to become the judge in its own cause.
Which is what David Maxwell Fyfe was saying seventy years ago.