EU Withdrawal Bill Update: response to the UK Government's 'right by right' analysis

Date: 16th January 2018
Category: Other human rights treaties and mechanisms

Numerous human rights organisations have expressed concerns over the UK Government's "right by right" analysis which sets out how rights in the EU Charter of Fundamental Rights shall be protected after Brexit.

Last November, Together produced a briefing on the importance of the EU Charter of Fundamental Rights and why it shouldn't be abandoned by the EU Withdrawal Bill. Several amendments to the Bill were tabled which sought to preserve the Charter. These were debated in the House of Commons on 21st November 2017. Ultimately, however, these amendments were set aside when the UK Government promised to publish a "right-by-right" analysis showing how Charter rights would be protected in the UK after Brexit. The UK Government's position is that removing the Charter shall not affect the rights of individuals living in the UK. This analysis was published on 5th December 2017 and has been met with much criticism.

In general terms, the UK Government's analysis is very simplistic. It merely identifies where similar rights exist in international treaties and domestic law. However, the analysis does not go much deeper than this. It doesn't look at the substance of these rights or how effective they are when compared to their Charter-based equivalents. Keir Starmer, Shadow Brexit Secretary, criticised the analysis on this basis concluding that it was "woefully inadequate". Furthermore, the report does little to identify potential gaps in protection. These arise because certain Charter rights do not have direct equivalents in UK law. Examples include the right for a child's best interests to be a primary consideration in all actions taken by a public or private institution, and the Charter's freestanding right to non-discrimination. Schona Jolly QC has accordingly criticised the report saying that it "fails to tackle the legal reality that abandoning the Charter indeed does remove rights that UK citizens currently enjoy and adds to the complexity, confusion and uncertainty surrounding the basis to protect and enforce substantive rights post-Brexit."

Furthermore, the analysis fails to highlight the differing remedies available under the Human Rights Act and the Charter. Where a right falling under both instruments is breached, the Charter provides a stronger remedy for individuals than the Human Rights Act. Ultimately, despite the UK Government arguing that removing the Charter shall not affect the rights of individuals, this does not appear to be the case. On this point, the Equalities and Human Rights Commission instructed barrister Jason Coppel QC to review the UK Government's analysis. His conclusion was that a failure to preserve relevant parts of the Charter in domestic law after Brexit would lead to a significant weakening of the UK's system of human rights protection.

In relation to children's rights in particular, the superficial nature of the analysis is clear. For example, when considering what Scottish legislation is available to protect children's rights, the analysis completely overlooks the existence of the Children and Young People (Scotland) Act 2014.

Given the inadequacies of the UK Government's analysis, Keir Starmer has announced that Labour shall be forcing a vote on the Charter during the next stage of the Bill. This is the report stage which shall run from 16th-17th January 2018, followed immediately by the third reading also on 17th January 2018. Thereafter, the Bill is expected to progress to the House of Lords towards the end of January. It is anticipated that the Lords shall table their own Charter-based amendments. Indeed, it is likely that the House of Lords shall become a key battleground for rights issues with some commentators anticipating that the Lords may similarly force an early vote on the Charter. Throughout these stages, Together will be continuing to work with partners in Scotland and the UK to push for retention of the Charter.