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Brexit and Freedom: Has the UK Made an (E)U-Turn on Human Rights?

After withdrawing from the European Union, the United Kingdom must navigate the intricacies and deal with the consequences of leaving an international organisation which champions for the protection of human rights. Among the founding principles of the EU are freedom, democracy, equality and the rule of law and its commitment to safeguarding human rights has been instrumental in upholding these values. Without the rule of EU law, the UK could suffer from significantly weaker fundamental rights protection.

One of the core pieces of EU legislation impacting human rights is the Charter of Fundamental Human Rights of the European Union (the Charter). A tool for bringing together all of the different rights created at different times, the Charter ensures that members of the EU uphold these rights under six titles: dignity, freedom, equality, solidarity, citizens rights and justice. Many pieces of legislation and treaties have established rights under these titles such as the European Convention on Human Rights (ECHR), the Council of Europe's Social Charter and the Community Charter on Fundamental Social Rights.

The European Union (Withdrawal) Act 2018 stated that the applicability of the Charter to UK laws would cease on exit day. Given the vast range of protection this affords to the citizens of EU member states, it is unsurprising that this issue has been a point of contention. In response to public concern, Theresa May's government argued that the withdrawal from the Charter would not impact human rights within the UK as the purpose of the Charter was to codify rights that already existed and would continue to do so through their original sources.

However, the Charter offers more than clarification. For example, it enables the nationals of member states to take legal action against domestic laws incompatible with a right afforded by the Charter. Post-Brexit, this option has ceased to exist alongside the applicability of the charter. While the Charter set out to consolidate rights already enshrined in law, it has since facilitated the development of new rights not previously reflected in external legislation. An example of this is the "right to be forgotten", enabling individuals to request that organisations erase their personal data. Therefore, there are several ways in which essential protections are no longer legally ensured to British citizens due to the state's withdrawal from the European Union and the Charter. As such, significant pressure has been placed on the government to ensure its commitment to the protection of human rights and it has responded with certain assurances.

The UK’s four human rights and equality bodies released a statement noting that the UK government will retain at least equivalent human rights protections to those that existed pre-Brexit. They also stated that any decisions which could impact human rights and equality in the UK would be addressed by Parliament, making it significantly more difficult for detrimental amendments to the protection of rights to be made. The statement also emphasised the desire for the UK to maintain its status as a world leader in equality. If the UK were to falter in its commitment to human rights, this failure would jeopardise its position.

Further, the UK remains dedicated to its responsibilities under the ECHR due to its membership in the Council of Europe. The ECHR is the source of many of the rights protected by the Charter, therefore highlighting that these rights will remain protected. To reassure the public of the government’s obligation to maintain its protection of human rights post-Brexit, the May administration published the Charter of Fundamental Rights of the EU Right by Right Analysis. This report establishes that most rights listed in the Charter will remain protected. However, it is worth noting that the ECHR is not legally binding unlike the Charter; this naturally lessens the degree of protection it can afford.

The revised Political Declaration for setting out the framework for the future relationship between the European Union and the United Kingdom states that shared values and norms will form the basis for cooperation. As a means of promoting human rights internationally, the EU includes a human rights clause in its agreements. The clause allows one of the parties to the agreement to take appropriate action against the other should they commit a serious violation. As such, if the UK were to violate human rights, it is unlikely that it would continue to benefit from trade agreements with the EU. Similarly, since security cooperation within the EU is largely based on a mutual understanding of shared values, the UK must adhere strictly to EU standards on human rights to maintain a security partnership.

Therefore, while there can be no doubt that Brexit does pose a dangerous threat to the future of human rights in the UK, there are systems in place to mitigate the risk of damage to human rights. Should Britain honour its promise to remain committed to protecting fundamental rights, with external bodies supporting this by including human rights clauses in bilateral agreements, the UK can expect a smoother ride out of the EU.


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