We are pleased to welcome this guest post from Dr Claire McCann, Human Rights Officer (Rights in Practice) with the Human Rights Consortium.
There is a lot of confusion about what impact a ‘leave’ vote in the EU referendum would have on human rights protection in the UK generally and particularly for us in Northern Ireland. Firstly it is worth noting the European Convention of Human Rights (ECHR), is the core human rights agreement which applies in the UK and is part of UK law through the Human Rights Act. This human rights framework is separate from the EU and would be unaffected by this referendum (although it is subject to a different threat from the current government).
However, this does not mean that human rights are irrelevant to the referendum debate. The EU has its own distinct system of human rights protection under the EU Charter of Fundamental Rights.
In Northern Ireland the powers of the Assembly and the Executive are regulated by the Northern Ireland Act 1998. Neither the Executive nor the Assembly can do anything which is contrary to the rights in the ECHR or EU law (including the EU Charter of Fundamental Rights). Unlike the Parliament in Westminster, which can make a law on any subject, the Northern Ireland institutions can only act within the powers devolved in the Northern Ireland Act. For example, a minister introducing a Bill should make a statement confirming that it is within the scope of the Assembly’s powers to make law. This includes confirming that the Bill complies with the Human Rights Act and EU law. If a law is outside of the powers of the Assembly or the Executive, then the courts can declare that law invalid.
What is the EU Charter?
The EU Charter protects a more extensive range of rights than the ECHR. This list of rights includes specific protection for the rights of the child and of older people, rights to social security and healthcare, as well as mirroring the rights in the ECHR, such as freedom from torture, freedom of expression, right to respect for family life, among others.
While we are more familiar with the Human Rights Act, the human rights protections of the EU Charter are increasing in prominence. The Court of Justice of the European Union has made important decisions clarifying how the rights in the Charter protect individuals. For example, Ms Benkharbouche was a cook in the Sudanese embassy and was able to use the EU Charter to enforce her employment rights against her employer. The Court of Justice of the EU has been particularly strong on protecting the right to privacy. In the Digital Rights Ireland case, the EU court found that a directive which required telecommunications companies to retain large amounts of telecommunication information was contrary to the protections of the right to privacy and the right to protection of personal data in the Charter.
The EU Charter has the same legal status as the EU treaties and is binding on all EU institutions and on member states when acting within the scope of EU law. EU law became part of UK law through the European Communities Act 1972 which paved the way for the UK to join what was then known as the European Communities. This Act set out the legal framework for all existing and future EU law to be part of UK law in very broad terms.
The principle of supremacy of EU law was well established by the time the UK joined the EU. The UK courts and government, like all other EU member states, have accepted this supremacy as a requirement of membership. This means that any law in the UK – including laws passed by the Westminster Parliament – which is in conflict with EU law may be set aside and is in effect rendered invalid. This means that when UK law is in conflict with a right in the EU Charter of Fundamental Rights it may also be set aside.
The Human Rights Act applies a different approach. Where there is a conflict between a law passed by the Westminster Parliament and the ECHR, the court can only issue a ‘declaration of incompatibility’. This alerts the Government to a problem with the law in question and allows it to ‘fix’ the disputed legislation with an accelerated process. But the law in question continues to apply until such time as it is amended or repealed despite its ‘incompatibility’ with the Human Rights Act. For example, last year the High Court found that the law which prohibits abortion in cases of fatal foetal abnormality in Northern Ireland was not compliant with the Human Rights Act and issued a declaration of incompatibility. The judgment did not change the law and it is up to the Northern Ireland Assembly to decide whether or not to remedy this. A recent proposal in the Assembly to bring the law into line with the Human Rights Act failed.
So, on the one hand, the EU Charter is more limited than other human rights law as it only applies within the limited scope of EU law; and on the other hand, the EU Charter offers a stronger protection as it allows for any incompatible law to be set aside. Importantly, however, not all rights in the EU Charter are of equivalent status. There is a distinction between ‘rights’ and ‘principles’ and the latter category cannot be used to make a rights claim before a court. There is a lack of clarity in the EU Charter between what is a right and what is a principle – and even the experts are not clear where the line is.
Many of the rights in the EU Charter, have also been expanded on through regulations, directives and other measures of the EU. This has been particularly important in relation to citizenship and family rights, rights to environmental information, women’s rights and worker’s rights, where the EU has set a common European baseline for rights protection.
What if the referendum result is to leave the EU?
If the UK were to vote to leave the EU, the impact on human rights would not be immediate. In the aftermath of the referendum, the UK government would invoke article 50 of the EU Treaty, which puts in place a two-year period for negotiating an exit from the EU with the other 27 member states. It is difficult to know what the outcome of that process would be.
Two possible models are as follows:
- The ‘Norway model’: Norway is not a member of the EU, but it does have access to the single market through membership of the EEA and accepts a number of EU laws. The Court which supervises EEA has consistently found that fundamental rights form part of the general principles of EEA law. Therefore, while the EU Charter is not directly effective, the rights it recognises would continue to be protected in the UK, were it to be part of the EEA.
- Complete independence model: If the UK were to leave the EU and remain outside of EEA, it is likely that aspects of EU Charter would be used to interpret EU law until such time as those laws were replaced by local UK laws. The effect of this would lessen over time.
Fundamental rights are a core principle of EU law and long before the Charter was drafted were considered to be foundational principles of the EU. If the UK votes to leave the EU, the nature of its human rights obligations would change. However, to the extent that the UK would wish to trade with the EU and access the single market, it is likely that this would come with at least some obligations to protect fundamental rights in that process. Whether this would lead to a lowering of rights protection or maintain a comparable level protection to what we have at the moment is unclear.