Scottish Human Rights Commission Gives Evidence to Parliament on Brexit

Date: 29th November 2016
Category: General principles

The Chair of the Scottish Human Rights Commission has given evidence to the Scottish Parliament Equality and Human Rights Committee on the human rights implications of Brexit.

Judith Robertson, Chair of the Scottish Human Rights Commission (SHRC) highlighted the principle risk concerns as 1) impacts on the most vulnerable and marginalised, given the economic uncertainty and the new trading environments, 2) the loss of legal protections that the Charter of Fundamental Rights of the European Union provides and 3) the risk to the European convention.

SHRC concerns in detail:

The broad human rights concerns about Brexit, the first of which is the impact on poverty and on people having an adequate standard of living.

The falling pound, at least in the short to medium term, will mean rises in the cost of living, especially in relation to food and fuel. The UK relies heavily on food imports, which amount to 30 per cent of its food. The price of food will rise if sterling falls and remains low for a prolonged period.

Food insecurity is on the increase. That can be seen through increased reliance on food banks and the proportion of people who are living in fuel poverty, which remains well above acceptable levels. That is not likely to improve in the current post-Brexit economic climate.

In the longer term, Judith Robertson warned of the Brexit circumstances of economic uncertainty leading to a levelling down of workers' rights in the name of economic competitiveness. Unions have already expressed concern about this.

On the implications of Brexit for legal protections, the Scottish Human Rights Commission is concerned that human rights protecting fairness, justice and dignity stand to be eroded as a result of the UK's changing relationship with Europe. The Charter of Fundamental Rights of the European Union became legally binding on EU institutions and national Governments with the entry into force of the treaty of Lisbon in 2009. It is directly applicable in the domestic law of the UK by virtue of the European Communities Act 1972 and in Scotland by virtue of sections 29 and 57 of the Scotland Act 1998.

The charter reaffirms the rights, freedoms and principles that are already recognised in EU law; it creates no new rights. It is divided into a number of sections. As the charter applies only when an EU member state acts within the scope of EU law, it will cease to be binding on the UK and to have effect in domestic law once the UK has formally left the EU.

The charter provides a range of protections in relation to EU law; it does not give us particularly new rights. When we leave the EU, those protections will no longer be there. From the SHRC perspective, the potential loss is threefold. There would be a reduction in human rights protections -- basically, the loss of charter protections within the scope of EU law -- and, beyond that, the loss of rights to privacy, data protection and a fair hearing. Furthermore, an EU exit may represent the loss of the potential for the fuller protection of the social rights and principles that are contained in the charter.

Finally, the charter has been of value not only in its provision of substantive social rights but in the contribution that it makes to the interpretation of a range of rights as what we call a consolidating instrument -- something that brings together rights and articulates and strengthens the scope of human rights.

Another dynamic that it is important to outline is the increased vulnerability of the European convention on human rights. The convention is an instrument not of the EU but of the Council of Europe, so it is not directly under threat as a result of our leaving the EU. However, it is worth considering that the impact of the loss of the charter and withdrawal from it will be that the convention will become increasingly vulnerable to UK withdrawal. As a deterrent to holding on to the convention, EU membership is being removed, along with the mitigating protections that are provided by the Charter of Fundamental Rights of the European Union.

Although the European convention on human rights is not made vulnerable directly by the UK's leaving the EU, leaving the EU will mean that the EU's holding-to-account process, which concerns its general expectations of the standards that countries are expected to meet, will be withdrawn from the UK. That will strengthen the ability of an Administration at Westminster to stand back from aspects of the convention, which would be of significant concern -- particularly given the context of the public debate on the convention and standing back from aspects of it.