In this blog Equalities Ambassador Luke Padfield discusses the House of Commons vote on the retention of the EU Charter of Fundamental Rights once the UK leaves the European Union.
The House of Commons has voted against retaining the EU Charter of Fundamental Rights in UK Law after Brexit.
So what have we lost? The EU Charter of Fundamental Rights is different to the European Convention on Human Rights. While many of the provisions of the two documents overlap, the EU Charter is primarily designed to limit the scope of European Union institutions in the exercise of making and amending laws that affect the EU and its member states. The EU Charter is binding on member states although only in so far as when member states are implementing EU law. It has been noted that while this doesn’t happen very often there are significant impacts in the areas of immigration and employment law.
One of the most significant differences between the European Convention on Human Rights and the EU Charter is that when the Courts find that there has been a violation of a Human Right under the ECHR they are empowered to make a declaration of incompatibility, whereas the European Court of Justice, the body that oversees the administration of the EU Charter, is empowered to strike down the offending legislation.
A prominent legal academic has argued that the removal of the EU Charter will lead to:
- A reduction in substantive rights available to persons living in the UK
- A loss of EU law remedies
- Make it impossible to effectively challenge EU legislation which infringes Human Rights
The significant point here is that as a result of the removal of the EU Charter, despite all the complicated caveats, it will mean that it will no longer be possible to use the Charter and its articles (like the right to healthcare or the rights of the child) as the basis of a legal argument that citizens can use to challenge the actions of those in power. It is perhaps for this reason that the Scottish Human Rights Commission are advocating the incorporation of the International Covenant on Social and Economic Rights (ICSER) into domestic law.