So Long, Farewell, Auf Wiedersehen, Adieu: Brexit and the Charter of Fundamental Rights

Date01 March 2019
AuthorCatherine Barnard
Published date01 March 2019
Catherine Barnard
legal orders have been inter-related since 1972. There was, therefore, always
going to be an irreducible degree of complexity in the resulting legislation.
This has, however, been exacerbated by the politically charged nature of the
exercise, combined with temporal limits within which to secure passage of the
legislation. This had consequential implications for consideration of a plethora
of issues, such as the status of retained law, the position of the Charter and
rights post-exit, legislative oversight of executive power, and legislative power
in relation to the final agreement, or as to what should eventuate in the absence
of an agreement. Many of these difficult issues will perforce fall to be decided
by the courts in a post-Brexit world. Moreover, lest we forget, the European
Union (Withdrawal) Act 2018 will merely be the tip of the statutory iceberg
of legislative instruments that will be required to give effect to Brexit.
So Long, Farewell, Auf Wiedersehen, Adieu: Brexit and
the Charter of Fundamental Rights
Catherine Barnard
The UK’s relationship with the Charter of Fundamental Rights of the European Union can
at best be described as strained, at worst, actively hostile. The Charter was, for the UK, an
unwanted child, unloved at birth, grudgingly tolerated during life, and willingly surrendered
at the death of the UK’s membership of the EU. This article charts the UK’s approach to the
Charter from its inception to its demise in the EU (Withdrawal) Act 2018. It considers, in
particular, the UK’s so-called opt out from the Charter in Protocol 30 and the confusion that
has been generated as a result. It then argues that the Charter will have a legacy effect in the
UK, primarily through the renaissance of the general principles of law.
The birth of the Charter of Fundamental Rights in 2000 was difficult for the
UK. Its transformation into a legal text in 2009 proved even more problematic.
The UK got its way on drawing some of the teeth of the Charter through
the so-called ‘opt-out’ Protocol 30, but then miscommunicated the message.
During the life of the UK’s membership of the EU, the Charter was tolerated.
Few British courts made mention of it in their judgments, even fewer made
mention of it in references to the Court of Justice. At the end of the UK’s
relationship with the EU, the Charter was unceremoniously dumped, thus
breaking the mould applied in respect of all other parts of EU law, namely its
continuity as ‘retained EU law’ on (Br)Exit day. Attempts were made in the
House of Lords to rescue the Charter but they were ultimately unsuccessful.
Professor of EU and Employment Law, Trinity College, Cambridge. Thanks go to Mark Elliott and
Alison Young and to the anonymous referees for their helpful comments.
350 C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited.
(2019) 82(2) MLR 319–366
Brexit and the Charter of Fundamental Rights
However, the general principles of law, including the protection of fundamental
rights, live on, at least those that were in existence on Brexit day.
This article traces the birth, life and death of the Charter in the UK. It argues
that the Charter will continue to have a legacy in the UK; developments under
the Charter may continue to shape the judicial interpretation of EU retained
law for years to come. This may not have been the intention of the Brexiters.
The origins of the Charter
The Charter,1first solemnly proclaimed in December 2000, was intended
to codify existing rights, making them more visible2– rather than creating
new rights.3A large number of the rights were derived from the European
Convention on Human Rights, the Community Social Charter 1989 and
the Council of Europe’s Social Charter 1961.4Others were derived from the
constitutional traditions common to the Member States, as general principles
of Union law.
The Rights/Principles dichotomy
The UK, with its absence of a written Constitution, let alone a codified Bill
of Rights, has always been suspicious of ‘rights’ documents, despite the fact
it was the prime mover behind the drafting of the European Convention on
Human Rights. It was particularly concerned about the unique feature of the
Charter: that social and economic rights were included in the same document
as civil and political rights.5The UK reasoned that while civil and political
rights are essentially negative and do not require state resources, economic and
1 On the background to the Charter, see G. de B´
urca, ‘The drafting of the European Charter of
Fundamental Rights’ (2001) 26 EL Rev 126, K. Lenaerts and E. de Smijter, ‘A “Bill of Rights”
for the European Union’ (2001) 38 CML Rev 273.
2 The Cologne Presidency conclusions, 3-4 June 1999 at http://www.europarl.europa.
eu/summits/kol2_en.htm#an4 (all URLs last accessed 19 December 2018) at para 44: ‘The
European Council takes the view that, at the present stage of development of the European
Union, the fundamental rights applicable at Union level should be consolidated in a Charter and
thereby made more evident.’ Annex IV added ‘The obligation of the Union to respect funda-
mental rights has been confirmed and defined by the jurisprudence of the European Court of
Justice. There appears to be a need, at the present stage of the Union’s development, to establisha
Charter of fundamental rights in order to make their overriding importance and relevance more
visible to the Union’s citizens.’
3 See, for example, the Preamble to the Protocol ‘WHEREAS the Charter reaffirms the rights,
freedoms and principles recognised in the Union and makes those rights more visible, but does
not create new rights or principles’.
th Recital to the Preamble to the Charter 2007.
5 See Cologne Presidency Conclusions 1999, Annex IV, n 2 above, ‘In drawing up such a Charter
account should furthermore be taken of economic and social rights as contained in the European
Social Charter and the Community Charter of the Fundamental Social Rights of Workers
C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited.
(2019) 82(2) MLR 319–366 351

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