Rights charter in limbo during Brexit spats

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.