Concerns for rights protections in EU Withdrawal Bill

Category: Other human rights treaties and mechanisms

27th November 2017

Together has submitted joint evidence to the JCHR outlining concerns about the protection of human rights in the European Union (Withdrawal Bill).

Thirty other groups were involved in submitting the joint evidence to the Joint Committee on Human Rights including Human Rights Watch, Liberty, National Union of Students, Women's Aid (England), Disability Wales and Children in Scotland.

Coordinated by the British Institute for Human Rights (BIHR), the evidence submission states that the Withdrawal Bill, as it stands, will mean a loss of rights and accountability for people in the UK, notably:

  • People's fundamental human rights and equality protections: despite the government's stated intention for the Withdrawal Bill to maintain the status quo, a number of rights have either been explicitly excluded or it is not clear how minimum standards of protection will be ensured; and
  • Parliamentary scrutiny: the Bill's provisions for amending transposed EU law vest significant power in ministers rather than parliament, with its associated processes for scrutiny and consideration of the views of civil society.

It concludes that ultimately, exiting the EU should not lead to less protection of people's rights; the standards of protection should be equivalent to the current position, and where possible the opportunity to provide additional (not different) rights protections should be taken.

Making Brexit work for children

More widely across the UK, commentary has been made on the fact that there has been very little consideration to date of the specific impact of Brexit on children. Nor has there been much effort to consider the very distinct implications of Brexit for children living in the devolved nations of the UK. This is in spite of the fact that children represent one fifth of the European Union (EU) population and one quarter of the UK population.

The EU has enacted over 80 legal instruments that confer direct entitlement for children covering issues such as migration, asylum, child protection, health and safety, paediatric medicine, access to social and economic rights and cross-border family breakdown.

In more recent months, MPs and Peers have been engaging with experts from the children's sector, including practitioners, civil society organisations and academics, to better understand how children are affected by Brexit, and have called on the Government to ensure that the impact of Brexit on children is considered in a more meaningful way during the negotiations.

To facilitate the transmission of informed and co-ordinated responses to those involved in the Brexit negotiations, children's experts from across the UK have come together to form the 'Brexit and Children' coalition looking at the impact of Brexit on children.

Children's rights briefing

A new Together briefing explaining how the MPs 21st November debate on the EU Withdrawal Bill will impact on children's rights has also been published.

The MPs debate on the EU (Withdrawal) Bill will decide the fate of the EU Charter of Fundamental Rights. In its current form the Bill proposes abandoning the Charter despite "copying and pasting" the rest of EU law onto the UK statute book. Several amendments have been proposed which aim to save the Charter.

Abandoning the Charter is very significant from a children's rights perspective. The Charter enhances rights that already exist in the ECHR such as the right to education. It also condenses rights enshrined in the UNCRC within one article. These UNCRC rights include the right to care and protection, the right to express views freely, the best interests principle and the right to know both parents. Children's rights enshrined in the Charter have been translated into practice through EU legislation, policy and case law.

The UK Government's position is that abandoning the Charter shall not adversely affect individual's rights. It argues that the rights contained in the Charter can all be found in other international treaties which the UK has ratified. However, the Charter goes beyond the rights in these treaties by including broader protections and other more 'novel' rights not found in other treaties. Whilst the UK Government is correct in stating that certain Charter rights are found in other treaties which the UK has ratified, the fact that no action has been taken to incorporate these treaties (including the UNCRC) means that they do not have direct effect in domestic law.

The UK Government has also argued that removing the Charter is insignificant as the 'underlying rights' upon which it is based shall be preserved. However, the effectiveness of these is weakened given that the Withdrawal Bill removes the right to challenge retained EU law on the basis that it is incompatible with the general principles of EU law (which includes fundamental rights). Accordingly, these underlying rights shall be a tool used for interpreting retained EU law but they will be unenforceable in UK courts.

Together has worked with partners across the UK to support the amendments proposed by Dominic Grieve MP. These amendments aim to preserve the Charter and ensure that, after Brexit, it will be possible to challenge retained EU law on the grounds that it is in breach of the general principles of EU law (including fundamental rights).

Together encourages its members to share our briefing and to email or tweet their MPs to encourage support for these amendments.

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