How Brexit Could Undermine Human Rights

Well-established human rights standards are at risk of revision and repeal

Published: March 15, 2018

Author: Colm O’Cinneide

Complex human rights questions are looming in debates about Brexit and dividing expert opinion: Could the United Kingdom’s departure from the European Union undermine human rights? More specifically, could Brexit result in the erosion of equality, environmental, privacy and other fundamental rights? Or is there an opportunity at hand to rethink how rights are protected in UK law?

Parliamentary debates on the EU (Withdrawal) Bill are tackling some of these weighty questions, but achieving consensus will not be easy. The UK government claims that its proposed legal approach to Brexit will not have a negative impact on rights, while the opposition disagrees.

The majority of the commentators expressing concern about the potential impact of Brexit on human rights have focused on how it may undermine existing legal methods of rights protection. Within this general strand of criticism, several different sub-themes can be identified.

Securing Human Rights

To start with, some commentators have highlighted the important role that EU primary and secondary legislation has come to play in securing certain human rights — which is particularly the case for discrimination law, workers’ rights, environmental law, data protection and migrant rights. In all of these contexts, EU law sets out minimum standards with which all EU member states must comply. After the United Kingdom exits the European Union, these standards will remain part of UK law by virtue of the provisions of the EU Withdrawal Bill. However, Brexit creates the possibility that they may be diluted, amended or repealed by subsequent UK legislation. As a consequence, Brexit poses a potential threat to all these EU standards — and, by extension, to the specific and embedded forms of legal protection they afford to human rights.

This concern is exacerbated by the likelihood that Brexit will dilute the impact of certain overarching aspects of EU law — namely, the general principles of EU law and the provisions of the EU Charter of Fundamental Rights (CFR). The general principles taken together with the CFR require that EU law, along with all national legislation that implements EU law, should respect a range of fundamental rights. However, to date, the text of the EU Withdrawal Bill provides that the CFR shall not remain part of UK law after Brexit. The bill also limits the impact of the general principles of EU law. As a result, it appears likely that the extra layer of legal protection for rights provided by the CFR and the general principles will thus be uprooted from UK law upon Brexit.

Legal Mechanisms to Amend or Repeal

Other concerns arise in relation to the legal mechanisms that the EU Withdrawal Bill provides for the UK government to amend or repeal the provisions of EU law that will continue to form part of UK law post-Brexit. The bill gives ministers wide-ranging powers to amend both transposed EU law and associated UK law via secondary legislation. This means that ministers will have the power to amend or repeal EU law that protects human rights, along with any linked UK legislation to give effect to the Brexit transition process.

Many commentators have identified the scope of these ministerial powers as a real threat to the enjoyment of human rights post-Brexit, as they make it possible for existing legal guarantees to be diluted, amended or repealed by the exercise of potentially unaccountable executive power.

It is possible to identify specific risks that Brexit poses to the protection of human rights, although it is not likely that all of these risks will come to fruition. In response to political pressure, the UK government has asserted that Brexit will not lead to any substantive dilution of the level of rights protection currently offered under EU law. The final withdrawal and trade agreements that will be concluded between the European Union and the United Kingdom may also require Britain to adhere to existing EU standards in certain areas.

Data protection falls into this category. The United Kingdom’s bulk holders of personal data, sourced from a number of different EU states, will probably be required to maintain compliance with the EU data protection framework. However, it is likely that there will be some departures from existing EU standards that currently help secure human rights — free movement, workers’ rights and migrant rights, in particular.

While the risk of a radical dismantling of existing EU legislation that has a rights-protective function can be overstated, it is likely that Brexit will result in some adjustment to the status quo.

There is the possibility that well-established human rights standards will be reviewed, revised and possibly repealed. And this replacement process may unfold in a political climate unfavourable to human rights concerns, especially given the hostility toward migrants that played a role in the Brexit referendum result. This concern for Brexit’s impact on human rights may prove unfounded — future UK adjustments to existing EU standards in this field may not turn out to be very damaging. But, as Brexit stands, some sense of foreboding about the future for human rights in the United Kingdom is justified.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.