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Brexit and Human Rights

Document Cited authorities 9 Cited in Related
Vincent
Date01 January 2018
Author
DOI10.3366/elr.2018.0463
Published date01 January 2018
Pages126-132
INTRODUCTION

Rights protection in the UK is multi-faceted and multi-layered. Multi-faceted because our rights derive from several sources: from the European Convention on Human Rights (the “ECHR” or the “Convention”); from the general principles of EU law or from its Charter of Fundamental Rights (the “EU Charter”), as well as from the common law. These sources overlap in various ways: the rights protected by the EU Charter draw heavily from the Convention rights, and the latter, arguably, reflect protections already found in the common law.1 However, there are also significant points of divergence: what registers as a common law right depends upon the cases that come before the courts (so, common law rights are well developed in relation to access to justice and procedural fairness, but less so in other areas), whilst the EU Charter is simultaneously less expansive than the Convention in its scope (being applicable only to action taken in the sphere of European Union (“EU”) law), yet more expansive than the Convention in its coverage (with greater protections for certain social, economic and equality rights as well as for so called “third generation” rights such as those relating to data protection, bio-ethics and good administration). Multi-layered because the level and scope of rights protection varies significantly according to the distribution of power across the UK's territorial constitution. Action taken at the level of the EU might engage and be limited by the general principles or by Charter rights; UK-level action might engage and be limited by the Charter rights (where that action takes place within the sphere of EU law), the Convention rights (given domestic effect by the Human Rights Act 1998 (“HRA”)) or common law rights; action by the devolved institutions might engage Charter rights and/or Convention rights directly by their incorporation into the devolution statutes,2 as well as the Convention rights by virtue too of the HRA, or common law rights.

Here, I will tentatively sketch what might be at stake for fundamental rights in Scots law where one layer of protection is removed (part D) after first outlining the ways in which those rights are protected in EU law (part B) and the effect on those protections of the European Union (Withdrawal) Bill 2017 (“Withdrawal Bill”), as introduced (part C).

 THE EU AND FUNDAMENTAL RIGHTS

There was no explicit reference to fundamental rights in the European Communities’ founding treaties. Nevertheless, protection of fundamental rights as a general principle of EU law began to emerge in the European Court of Justice's (“ECJ”) jurisprudence during the 1970s. Initially the ECJ had been resistant to arguments from fundamental rights, concerned that the unique quality of the European project as set out in Van Gend en Loos 3 and in Costa 4 would be threatened by the invalidation by domestic courts of Community law on the basis of incompatibility with indigenous constitutional norms.5 However, the ECJ was alive to a second threat: that domestic courts would be reluctant to embrace the supremacy of EU law on the basis that stronger protections existed for fundamental rights at the domestic compared with the supra-national level.6 So, in Stauder,7 the ECJ responded to the concerns of the German Constitutional Court with the reassurance that Community law would be interpreted so as not to “jeopardise the fundamental human rights enshrined in the general principles of Community law and protected by the Court”.8 This line was developed in Internationale Handelsgesellschaft 9 in which the ECJ asserted the supremacy of Community law even over the rights protected by the constitutional laws of the member states with the concession that “respect for fundamental rights”, drawing upon the “constitutional traditions...

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