Learning To Allow Become – The Charter Of Key Rights Afterwards Brexit

Eduardo Gill-Pedro, Post-Doctoral Researcher, Faculty of Law, Lund University: Eduardo.gill-pedro@jur.lu.se

The UK of Britain together with Northern Republic of Ireland Government’s proposal that the Charter of Fundamental Rights of the European Union (the Charter) volition non last converted into UK of Britain together with Northern Republic of Ireland police next Brexit (clause 5(4) of the European Union Withdrawal Bill) has generated rigid reaction from opposition parties. The Labour political party has indicated that it considers this to last a ‘red-line’ issue, together with that it volition non back upward a nib that does non contain the charter into UK of Britain together with Northern Republic of Ireland law. Keir Starmer, the Shadow Brexit Secretary, had earlier indicated that Labour would solely back upward a bargain which met its ‘six tests’, i of which was the requirement that such a bargain would ‘defend rights together with protections together with preclude a race to the bottom’.

In this weblog entry I volition argue, first, that at that spot is no necessary connector between, on the i hand, incorporating the Charter into UK of Britain together with Northern Republic of Ireland police together with on the other, defending rights together with protections of individuals inwards the UK of Britain together with Northern Republic of Ireland next Brexit, together with second, that upholding a commitment to last saltation past times the Charter post-Brexit is problematic from a democratic legitimacy perspective.

The Charter is non necessary to protect rights

The continued protection of rights inwards the UK of Britain together with Northern Republic of Ireland is non subject on continued adherence to the Charter. This is because the dot of the Charter, indeed the dot of European Union key rights every bit a whole, (at to the lowest degree to the extent that they bind the Member States, non necessarily the European Union institutions) is non to ensure the protection of key rights per se, but rather to ensure that the projection of European integration is non jeopardised past times the requirement to protect key rights. This was expressly acknowledged past times the Court of Justice of the European Union (CJEU), when it stated:

“it should last borne inwards heed that the ground for pursuing the objective [of protecting key rights inwards European Union law], is the take away to avoid a province of affairs inwards which the score of protection of key rights varies according to the national police involved inwards such a way every bit to undermine the unity, primacy together with effectiveness of European Union law” (Case C-206/13 Siragusa, para. 32)

The Charter is hence best seen every bit a machinery which is intended to protect the autonomy of European Union police vis a vis both national police together with the ECHR, to ensure that the supremacy of European Union police is accepted past times national legal orders, together with to ensure the effective application of European Union police inwards the legal orders of the fellow member states. Further, piece European Union key rights reverberate the constitutional traditions mutual to the fellow member states, every bit good every bit the rights laid about inwards the ECHR, they must last interpreted together with applied “within the framework of the construction together with objectives of the Community” (Case 11/70 Internationale Handelsgesellschaft mbH). This framework of objectives is structured inwards such a way every bit to contribute to “the implementation of the procedure of integration that is the raison d’être of the European Union itself” (Opinion 2/13, paras 172 together with 177).

This demand, that European Union key rights are interpreted inwards a way that respects the framework of objectives of the EU, tin hateful that inwards only about cases these rights volition operate every bit ceilings, together with fellow member states volition non last able to apply their own, higher criterion of protection (as inwards Internationale, every bit good every bit inwards the to a greater extent than recent representative of C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107), together with inwards other cases they operate every bit floors, together with fellow member states volition last required to grant protection to interests which would non last recognised every bit rights inwards their ain legal lodge (See for instance Cases C-465/00, C-138/01 together with C-139/01 Rechnungshof v ÖsterreichischerRundfunk together with Others EU:C:2003:294 together with C-426/11 Mark Alemo Herron together with others v Parkwood Leisure Ltd EU:C:2013:521).

In both these cases, the score of protection is laid inwards lite of the construction together with objectives of the EU. In other words, whether the national courtroom volition last required or permitted to protect the detail involvement at stake volition last determined inwards lite of the objective of furthering European integration. This is non to say that this is the sole consideration. But it is to say that it is a consideration that must ever last acquaint when interpreting or applying European Union key rights.

If next Brexit, the UK of Britain together with Northern Republic of Ireland is no longer saltation past times the Charter, this does non hateful that it no longer needs to protect human rights – national courts volition even so last required to protect the ECHR, every bit good every bit the rights guaranteed inwards the UK’s ‘unwritten constitution’. It volition also last required to apply the rights inwards the European Union legislation which became domestic police through Clauses 2 to iv of the Bill (which furnish that EU-derived domestic legislation volition last saved (Clause 2), straight applicable European Union legislation volition last incorporated into UK of Britain together with Northern Republic of Ireland police (Clause 3) together with European Union rights derived from the European Communities Act 1972 volition last saved (Clause 4). What it does hateful is that it volition no longer last required to translate together with apply human rights inwards lite of the objectives of European integration. Given that Parliament has passed the Bill requiring the authorities to trigger Article 50, together with that the UK of Britain together with Northern Republic of Ireland Government has sent a missive of the alphabet to the European Union committee announcing the UK’s determination to leave of absence the European Union inwards less than ii years’ time, nosotros must conclude that the UK of Britain together with Northern Republic of Ireland no longer shares the objective of furthering European integration, at to the lowest degree to the extent that such integration includes the UK. And these seems to last something which both the Conservative together with the Labour political party receive got accepted, given that both parties voted inwards favour of the Article fifty Bill.

If it is the representative that the UK of Britain together with Northern Republic of Ireland no longer shares the objective of furthering European integration, so it does non brand feel to rest saltation past times a Charter which volition require the UK of Britain together with Northern Republic of Ireland to translate together with apply key rights inwards lite of such an objective.

Brexit together with the democratic deficit

The pregnant of the Charter rights is determined past times the Court of Justice, together with the Court determines the pregnant of those rights inwards lite of the objectives of the EU. This is arguably already problematic from the perspective of the democratic legitimacy of the fellow member state when the fellow member state shares those objectives (This is the declaration I made inwards my doctoral thesis European Union Fundamental Rights together with National Democracies: contradictory or complementary (Lund, 2016). Fundamental rights are weather of democracy, together with every bit such they should also last outcomes of democratic processes (J. Habermas Between Facts together with Norms - Polity, 1996).

Once the UK of Britain together with Northern Republic of Ireland leaves the EU, this democratic deficit volition last greatly aggravated. Because so the pregnant of the Charter rights volition last determined inwards lite of objectives which are no longer the UK’s objectives, together with furthermore, given the dynamic nature of the European Union every bit a polity, these objectives volition perish on to evolve together with alter of time. The UK, which volition no longer last a fellow member of the EU, volition play no business office inwards shaping that evolution. This agency that the UK, should it rest saltation past times the Charter, volition last committed to applying a laid of norms which it volition non last able to play whatever business office inwards shaping. So the people of the UK of Britain together with Northern Republic of Ireland volition last saltation past times key legal norms which volition last neither past times the people, because they are decided past times the EU, inwards lite of objectives which the British people volition receive got no exercise inwards shaping, nor for the people, because they are done for a projection of which the British people are non a part. 

Conclusion

There are existent dangers that Brexit volition last used every bit a pretext to behave an laid on on rights protections, together with to engage inwards a race to the bottom. However, I debate that this is non prevented past times a commitment to rest saltation past times the Charter. Once the UK of Britain together with Northern Republic of Ireland is no longer business office of the European Union project, together with no longer committed to the objectives of European Union integration, so it makes no feel to rest saltation to an musical instrument whose raison d’etre is the furthering of those objectives.

Rather, a commitment to protecting rights for a Britain that is no longer a business office of the European Union must hateful a commitment to protecting those rights within, together with through the democratic processes of the UK of Britain together with Northern Republic of Ireland - Including through the Human Rights Act. The European Union has played an of import exercise inwards shaping a developing the civilisation of rights inwards the UK. And for human rights lawyers it is of course of pedagogy helpful to receive got had only about other forum inwards which to litigate one’s representative - particularly i amongst the enforcement tools at the disposal of the CJEU. So it tin last hard to allow become of the Charter. But human rights are non something that were given to the fellow member states past times the European Union – they were won outset through struggles fought inside those states’ political communities – they are, inwards Rancière’s words “inscriptions of the community every bit gratuitous together with equal” (J. Rancière, “Who Is the Subject of the Rights of Man?” The South Atlantic Quarterly (2), 297, p. 303.). Influenza A virus subtype H5N1 commitment to human rights post-Brexit must involve trust inwards the capacity of the British people to perish on to prepare together with evolve that civilisation of rights exterior the framework of the EU.

Barnard & Peers: chapter 9, chapter 27

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