Essay: What will happen to the fundamental rights of UK and EU citizens living in the UK?

22.02.2019
In 2013, recognizing a mistrust of the British people towards Europe, the British Prime Minister David Cameron committed to hold a referendum on a possible exit of the United Kingdom from the European Union, if his party won the parliamentary elections in 2015. However, the Tories won. Cameron campaigned for his country’s continued membership in the EU. But the British people voted for the exit of the EU at 51.9%, against 48.1% for the ‘Remain’, in the referendum of June 23, 2016. After the referendum, some confusion prevailed. David Cameron was forced to resign. In the end, Interior Minister Theresa May, who campaigned for the UK’s stay in the EU, took over at 10 Downing Street. The official negotiations between London and the European Union on the terms of Brexit began on June 19, when the latter launched Article 50, the withdrawal clause introduced by the Treaty of Lisbon, signed in 2007, stipulating that “Any Member State may decide in accordance with its constitutional rules to withdraw from the Union”. From that moment on, the United Kingdom has two years to negotiate its’ exit from the EU. The Treaties will cease to be applicable in the United Kingdom from the date of entry into force of the “Withdrawal Agreement”, unless the European Council, in agreement with London, unanimously decides to extend this deadline. Therefore, the UK will officially exit the EU the 29th of March 2019.
On the 17th of January 2017, Theresa May outlined her plans for Brexit, defending a “clean and clear” break with the EU, also known as “hard Brexit”. The Prime Minister outlined four red lines prior to the negotiations: no freedom of movement of workers, no compulsory contribution to the EU budget, no supervision of the European Court of Justice, and freedom to define trade relations with the rest of the world. In opposition, other ministers are in favor of a “soft Brexit”. There is also the possibility of a “no deal” if no agreements are made between the two parties before the exit date. Indeed, it is almost one month from the deadline and the two parties have not find an agreement yet. The European Council President Donald Tusk said on the 15th of March 2017 “I want to be clear that a ‘no agreement’ scenario would be bad for everyone, especially for the UK”. People are worrying about what will happen to them, to their health. Indeed, the fears of UK nationals living in another Member State concern their healthcare at 84%. There is also concerns such as the one on the right to retire in any country and the right of EU citizens to live in the UK at 44%.
Furthermore, The European Union (Withdrawal) Act 2018, The Great Repeal Bill, provides for the repeal of the European Communities Act 1972, which will put an end to the ‘supremacy of EU law’ and the jurisdiction of the Court of Justice of the EU in the UK. It rejects the EU Charter of fundamental rights, cutting off the source of EU law in the UK… and remove the competence of EU institutions to legislate for the UK. People also worry about what will happen to their rights. Will their protection be reduced?
After the 29th of March 2019, what will happen to the fundamental rights of UK and EU citizen living in the UK? What is the legal impact of Brexit on fundamental rights?
Firstly, we will analyze the EU Charter of fundamental rights and the fundamental rights in the UK’s law. And secondly, we will see the impacts of the removal of the EU fundamental rights in UK and the different outcome, solutions on their future offered by the government.
First of all, fundamental rights in the UK and in the EU are defined through several texts. Therefore, they have similarities, but they also differ from one to another. By removing EU fundamental rights with Brexit, what will happen to rights in the UK? How are these rights defined nowadays, on the eve of Brexit?
The legal system in the United Kingdom is the common law. Common law is the system of law which is based on judgments and on custom rather than written laws. However, fundamental rights in the UK, human rights are based and defined through several written texts. First, the common law derives from the 1689 English Bill of Rights, the Scottish Rights Claim Act of 1689 and Magna Carta 1215. The Act also relies on texts, drafted before unification, of Northern Ireland and the Kingdom of Scotland, as they are part of the United Kingdom. The most recent and main text defining legal fundamental rights in the UK is the Human Rights Act of 1998 (HRA), adopted by the United Kingdom Parliament in 1998 and entered into force on October 2, 2000 which seeks to incorporate the rights set out in the European Convention on Human Rights (ECHR) into British law. Its entire title is: “An Act to give further effect to rights and freedoms under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. “. However, as the UK is part of the EU, the EU’s human rights texts also apply to the UK. The main text is the Charter of Fundamental Rights of the European Union, which aims to protect fundamental rights in the EU countries.
Indeed, human rights in the EU are defined through the Charter of Fundamental Rights. The Charter of Fundamental Rights is a declaration of fundamental rights signed and proclaimed by the Presidents of the European Parliament, the Council and the Commission at the Nice European Council on 7 December 2000. It was proclaimed again on 12 December 2007 during an official ceremony at the European Parliament in Strasbourg. The Lisbon Treaty of 2007 makes reference to the Charter in Article 6 of the TEU and gives it a legally binding value. It states that the Union “recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted on 12 December 2007 in Strasbourg, which has the same legal status that the treaties “. The United Kingdom and Poland and the Czech Republic are granted by Protocol 30 a derogation. For the United Kingdom, this derogation has been especially desired with regard to the labor law of the Charter. The Charter of Fundamental Rights of the European Union incorporates in a single text all the civil, political, economic and social rights of European citizens as well as of all persons living on the territory of the Union, which are defined as common values of the EU. The aim is to make its principles more visible in order to strengthen the protection of fundamental rights in the face of changes in society, social progress and scientific developments. These provisions apply to EU institutions and bodies and to the Member States when implementing Community law. The rights included in the Charter are grouped into six main chapters. The first concerns dignity with the right to the integrity of the person, the prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery and forced labor. The second chapter on freedoms incorporates the right to liberty and security, respect for private and family life, protection of personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of expression and information, the right to education, protection in case of expulsion, expulsion and extradition, etc. The third on equality, gives men equality before the law, equality between men and women, the rights of the child, the rights of the elderly, the integration of disabled people. The fourth chapter concerns solidarity. The fifth on citizenship defines the right to vote and stand for election to the European Parliament as well as European citizenship. Finally, the last on justice offers for example the rights of defense and impartiality. These chapters are based on the fundamental rights and freedoms recognized by the European Convention on Human Rights (Council of Europe instrument), the constitutional traditions of the Member States of the European Union, the European Social Charter of the Council of Europe and the European Committee of Social Rights as well as other international conventions to which the European Union or its Member States adhere.
EU law and human rights are wider than the ones incorporated in the texts making the UK’s law such as the HRA. The Charter takes into account a wide range of basic protections, including the right to a private life, freedom of speech, equality provisions and employment rights. The EU Withdrawal Bill, currently in its report stage in the House of Commons, will transfer all existing EU law into UK law when Britain leaves the EU in March 2019. However, there are exceptions, including the Charter of Fundamental Rights. Indeed, the bill states: “The Charter of Fundamental Rights is not part of domestic law on or after exit day.” Therefore, some rights may disappear.
Secondly, with the willingness of the Tory Members of Parliament (MPs) to exclude the Charter, they will also exclude the enforceable right to human dignity, the express rights to data protection, the comprehensive protection for the rights of the child, refugee rights, the right to conscientious objection, academic freedom, etc. They will take away economic rights and social rights such as the freedom to move and live in another member state, freedom to work, study, retire, access to the social security. They will take away the only express right to non-discrimination on the basis of sexual orientation in international law.
SCOTTISH ET IRELANDE
The European Union Withdrawal Bill (‘Bill’) will repeal the European Communities Act 1972 and therefore intends to put an end to the ‘supremacy of EU law’ and the jurisdiction of the Court of Justice of the EU in the UK and convert to EU law as it stands into UK law as ‘retained EU law’ to avoid a legal vacuum upon exit. Therefore, there will be a reduction of the legal protection of people through the Charter. After Brexit, “The Bill” agreement will reduce the protection of fundamental rights. Indeed, the bill does not provide for the conversion of the Charter into British law as a chosen Community law. The charter will cease to apply the day of the exit. For the government, the latter does not in any case create new rights and only applies within the framework of the EU. But the government, through Parliament, will be able to change the EU laws by adopting new ones. However, not “converting” the Charter into UK law reduces the protection of people’s rights. The Charter protects against the EU institutions and the Member States when applying EU law. Since the United Kingdom will continue to apply EU law as a right, repealing the Charter will remove the guaranties that apply to these rules. The integration of most European legislation into national law while repealing the Charter will therefore reduce the rights and the protection: European law converted into UK law will continue to apply, subject to certain modifications, but the protections against the persons of this legislation will cease to exist.
In addition, another uncertainty remains, as fundamental rights do not only apply in the Charter, but also as “general principles of law”, recognized by the case-law of the Court of Justice of the European Union. The bill refers to fundamental rights as an example of general principles of law. However, the future of the general principles of European Union law after Brexit is complex. The bill excludes general principles from being directly applicable to British courts, excluding the Charter. There will therefore be a reduction in legal security after Brexit because of the impact of the reduction of fundamental rights. Indeed, the Brexit negotiations on the jurisdiction of the Court of Justice towards the United Kingdom make it possible to enrich the discussions on fundamental rights. Indeed, European judges will have to provide answers to new situations. This reference for a preliminary ruling is all the more important as it will enable many Member States to submit observations during the proceedings before the Court of Justice. Indeed, the United Kingdom recently refused to include the text of the Charter in the new text organizing the exit of the EU. These discussions are necessary because of the uncertainty over the extent of the protection of the rights of individuals after Brexit. Thus, in its annual report on the United Kingdom, Amnesty International mentions a significant reduction in the protection of human rights by the exclusion, in its entirety, of the Charter and the removal of the possibility of taking action. in the event of a breach of the general principles of European law after Brexit. These fears are well founded and reflected in parliamentary debates in the House of Commons. Anyone claiming the protection of human rights would no longer be able to do so on the basis of all the rights conferred by the European texts of the EU and the Council of Europe, but on the rights contained in the internal British law. The litigant would then have no assurance that his fundamental rights are guaranteed in the same way as those of the bloc deriving from European law.
Even though the government had promised to carry out a “right-by-right analysis” on how the protections provided by the Charter will be guaranteed after the Brexit, Keir Starmer, a British Labour Party politician and barrister who serves as the Member of Parliament for Holborn and St Pancras and Shadow Brexit Secretary, said that “the document they released fails to provide any assurance that essential rights will be protected as we leave the EU “.