Tuesday

24th Apr 2018

Analysis

Rights charter in limbo during Brexit spats

  • Escaping the jurisdiction of the European Court of Justice (main chamber) is not as easy of the Brexiteers hoped (Photo: Court of Justice of the European Union)

British PM Theresa May is visiting the EU capital on Monday (15 October) for an impromptu dinner with European Commission head Jean-Claude Juncker and Brexit negotiator Michel Barnier.

Her last-minute initiative comes before an EU summit on Thursday in which EU leaders are unlikely to bow to UK demands to start talks on future trade relations.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

The question of EU citizens' rights, as well as the Irish border, and the UK's EU exit bill have so far been among the most hotly-discussed, but still unresolved, questions in the five rounds of Article 50 negotiations so far.

Less noticed has been the fate of the Charter of Fundamental Rights.

The charter is one of the few EU legal acts that the British government already feels bold enough to wield the axe to in its so-called 'EU Withdrawal Bill' - which will dominate the autumn agenda of the House of Commons.

At the heart of the debate is what replaces the charter in UK law after Brexit - a mix of domestic human rights case law precedents, the European Convention on Human Rights (ECHR), the Human Rights Act (which itself was based on the ECHR) or a proposed 'British Bill of Rights' at some point in the future.

With May's personal authority crumbling, her majority (even with the Democratic Unionist party of Northern Ireland) only standing at 13 MPs, and the 'hard-Brexit' minority in her Conservative party wanting a complete break with the European Court of Justice (ECJ), it is an issue that could easily trip up the government in the coming months.

Labour and the Liberal Democrats have already tabled amendments which oppose scrapping the charter, with Labour's Brexit spokesman Keir Starmer describing the charter's retention as a 'red line'. Yet successive UK governments have had a tortured relationship with the charter.

Tortured birth of the Charter

One of Tony Blair's final acts as prime minister in 2007 was to seek an opt-out when the charter was tacked on to the Lisbon Treaty, partly to avoid being forced to hold a referendum on the treaty.

Blair eventually settled for a protocol stating that the charter did "not extend" the ability of the European Court of Justice (ECJ) to overrule judgements by UK courts or create new "justiciable" rights.

That compromise satisfied neither human rights groups or Labour's allies in the Trades Union Congress, who supported the charter's references to the right to organise and to strike. Eurosceptics, meanwhile, always hated the idea of an EU human rights treaty, with or without a near worthless protocol.

David Davis's former life...

There is, however, a certain irony in David Davis's leading role in scrapping the charter.

Before joining Theresa May's team as Brexit Secretary last July, Davis as a backbench MP took David Cameron's government to court over its emergency surveillance bill in 2014, citing the charter's provisions on privacy and protection of personal data.

Aside from the domestic political difficulties, the government's logic is that the charter is binding on the European institutions, and EU member states when they implement EU law. Post-Brexit there's no reason for the UK to remain a party to it.

So what happens after March 2019, with or without a much-discussed transition period?

As the Withdrawal Bill stands, ECJ judgements will only have an 'interpretative value' with regards to retained EU law. The UK's domestic courts would be able to ignore them.

People would then rely on domestic human rights protections and the European Convention of Human Rights, from which the UK's own Human Rights Act was derived, an act which the May government has also vowed to scrap and replace with its own 'British Bill of Rights'.

However, experts believe that the lack of case law at home makes it likely that the charter and its interpretation by the ECJ will, in the short-term, effectively stay in place.

"Fundamental rights are rather vague things," said Sir Konrad Schiemann, the UK representative at the Luxembourg-based court from 2004-2012, at a hearing of the UK Parliament's Exiting the EU committee on Wednesday (11 October).

"At the moment they are given substance by judgements by the ECJ," he added, though the UK would not be able to defer to the Luxembourg court indefinitely.

"Once we leave, I'm not sure how easy it is to refer cases to the ECJ as a non-member."

"There will be an expectation that the principles of the charter will be abided by," according to York Law School's Dr Charlotte O'Brien.

The UK government's 'future partnership' paper published in September on judicial co-operation proposed an EU-UK treaty on security talks. However, it speaks of the need for a system of "dispute resolution" rather than direct jurisdiction by the ECJ.

This poses a problem since policing and judicial cooperation require strict protections of fundamental rights, via the charter, that the UK will no longer apply.

As ever, the main sticking point is the role of the ECJ. Without compromise on the post-Brexit role of the ECJ, it is hard to see how to square the circle.

Brexit 'deadlock' prevents move to trade negotiations

EU negotiator Barnier also said after the latest round of Brexit talks that with political will, progress can be achieved in the next two months - in time for the December EU summit to give the green light.

EU puts May under pressure over Brexit and 'Boris'

MEPs and Commission chief Jean-Claude Juncker insist that "speeches are not enough" and say that the UK prime minister's political weakness at home prevents progress in negotiations.

May promotes Brexit on 'first-anniversary' UK tour

The British prime minister vowed to "deliver a Brexit that unites" the country, while 44 percent of the public thinks her policy is a "total shambles" but that the decision to leave the EU should be respected.

Car lobby uses Brexit to dispute CO2 targets

The lobby group for European car manufacturers has said that if UK sales data is not counted when calculating CO2 emissions, the target should be reviewed. The commission has refused to comment.

May promotes Brexit on 'first-anniversary' UK tour

The British prime minister vowed to "deliver a Brexit that unites" the country, while 44 percent of the public thinks her policy is a "total shambles" but that the decision to leave the EU should be respected.

News in Brief

  1. Commission will 'not shy away' from Malta killing repercussions
  2. EU Commission opens probe on Alitalia state loan
  3. Paris suspect given 20-year sentence for Brussels shoot-out
  4. Merkel and Pena Nieto praise EU-Mexico trade agreement
  5. Nahles elected new leader of Germany's SPD
  6. Report: EU budget to refocus on South
  7. Audit office: Brexit 'divorce' bill could be billions higher
  8. MEPs urge better protection for journalists

Stakeholders' Highlights

  1. Macedonian Human Rights MovementOxford Professor Calls for an End to the Anti-Macedonian Name Negotiations
  2. ACCAPeople Who Speak-Up Should Feel Safe to Do So
  3. Mission of China to the EUProgress on China-EU Cooperation
  4. Nordic Council of MinistersWorld's Energy Ministers to Meet in Oresund in May to Discuss Green Energy
  5. ILGA EuropeParabéns! Portugal Votes to Respect the Rights of Trans and Intersex People
  6. Mission of China to the EUJobs, Energy, Steel: Government Work Report Sets China's Targets
  7. Martens CentreJoin Us at NET@WORK2018 Featuring Debates on Migration, Foreign Policy, Populism & Disinformation
  8. European Jewish CongressKantor Center Annual Report on Antisemitism Worldwide - The Year the Mask Came Off
  9. UNICEFCalls for the Protection of Children in the Gaza Strip
  10. Mission of China to the EUForeign Minister Wang Yi Highlights Importance of China-EU Relations
  11. Nordic Council of MinistersImmigration and Integration in the Nordic Region - Getting the Facts Straight
  12. Macedonian Human Rights MovementMacedonians in Bulgaria Demand to End the Anti-Macedonian Name Negotiations

Latest News

  1. Hungary activists defiant after 'Soros Mercenaries' attack
  2. European Commission proposes whistleblower protection law
  3. Secrecy of VW fraud report 'unacceptable', says MEP
  4. 'Strong suspicion' of corruption in Council of Europe assembly
  5. France tightens immigration law, sparking division
  6. ECJ ruling set to end 10-year 'mouth tobacco' lobbying saga
  7. Whistleblowers, Syria and digital revolution This WEEK
  8. MEP friendship groups offer 'backdoor' for pariah regimes

Stakeholders' Highlights

  1. Counter BalanceThe EIB Needs to Lead by Example on Tax Justice
  2. ILGA EuropeTrans People in Sweden to be Paid Compensation for Forced Sterilisation
  3. International Partnership for Human RightsThe Danger of Standing Up for Justice and Rights in Central Asia
  4. Mission of China to the EUChina and EU Must Work Together to Promote Global Steel Sector
  5. Swedish EnterprisesEU Tax Proposal on Digital Services Causes Concern for Small Exporting Economies
  6. European Jewish CongressCondemns the Horrific Murder of Holocaust Survivor Mireille Knoll in Paris
  7. Mission of China to the EUAn Open China Will Foster a World-Class Business Environment
  8. ECR GroupAn Opportunity to Help Shape a Better Future for Europe
  9. Counter BalanceControversial Turkish Azerbaijani Gas Pipeline Gets Major EU Loan
  10. World VisionSyria’s Children ‘At Risk of Never Fully Recovering', New Study Finds
  11. Macedonian Human Rights MovementMeets with US Congress Member to Denounce Anti-Macedonian Name Negotiations
  12. Martens CentreEuropean Defence Union: Time to Aim High?