What is the potential impact of Brexit on human rights?

Categories: Latest News
Thursday October 24 2019
As the UK prepares to leave the European Union (EU), a lot of attention has been directed towards the impact of Brexit on such issues as the Irish backstop, as but one example of the impossibly complicated obstacles that must be navigated in negotiations.
However, despite perhaps not receiving a similar level of public attention as the Irish issue, human rights post-Brexit has been recognised as a potentially contentious area. As members of the EU, the UK is currently subject to the protections afforded by a corpus of EU human rights and equality legislation. Therefore, the human rights framework of the UK is susceptible to experience significant changes as a result of Brexit.
As members of the European Union (EU), the UK is currently subject to the protections afforded by a corpus of EU human rights and equality legislation. These include the Charter of Fundamental Rights of the European Union, as well as the many protections EU law affords to our equality and non-discrimination rights through its directives and general principles. Until our formal withdrawal from the EU, its laws will continue to apply directly or indirectly. However, human rights experts such as Amnesty International and Liberty have argued that the EU (Withdrawal) Act 2018 (the ‘Withdrawal Act’) may significantly weaken our current human rights and equality law protections.
Leaving the EU could potentially especially impact the rights and protections currently enjoyed by many of the UK’s ethnic and religious minority communities. As such, assurances are needed that the basic rights and protections embodied by current legislation will not be lost on the completion of Brexit.
In accordance with Section 5(4) of the European Union (Withdrawal) Act 2018, the Charter of Fundamental Rights of the European Union (the ‘Charter’) will not be retained by the UK following Brexit, leaving a large number of EU rights and protections without equivalence in the UK. Article 21 of the Charter, for example, contains the freestanding right to non-discrimination, which bars discrimination on any ground, including race, colour, ethnic or social origin, and religion or belief. Indeed, the UK Government does not dispute that the Charter currently offers more potent protection against human rights infringements than would any mechanism to enforce equivalent rights after Brexit.
Moreover, the Withdrawal Act, through so-called “Henry VIII powers”, hands ministers broad powers to make changes to both primary and secondary legislation using statutory instruments, which are capable of officially becoming part of the law faster due to being subject to less parliamentary scrutiny. Essentially, they allow the Government to change or repeal an act of Parliament after it has been passed without the need to go through Parliament for a second time. If ministers are afforded unchecked powers on matters of human rights, there are fears that rights protections may be compromised in favour of trade, particularly if the UK emerges as economically fragile in the event of a no-deal Brexit. Indeed, there have been reports – as confirmed by the former International Trade Secretary, Liam Fox – that the UK has received demands from some countries that Ministers are pushing to secure agreements with, to scale back its human rights standards in exchange for post-Brexit trade deals.
Furthermore, the potential disengagement from EU Directives is of particular concern for minority rights in the UK. While directives do not have direct application in the EU member states, they set out an objective to be achieved. Member states are then left to individually achieve these objectives however they see fit through a what is known as “transposition”, which is the process through which an EU directive is translated into national law.
The European Commission protects various rights through numerous equal treatment directives. These include:
- Directive 2000/43/EC against discrimination on grounds of race and ethnic origin.
- Directive 2000/78/EC against discrimination at work on grounds of religion or belief, disability, age or sexual orientation.
- Directive 2006/54/EC equal treatment for men and women in matters of employment and occupation.
- Directive 2004/113/EC equal treatment for men and women in the access to and supply of goods and services.
- Directive Proposal (COM(2008)462) against discrimination based on age, disability, sexual orientation and religion or belief beyond the workplace.
Peers have repeatedly stated that human rights in the UK will experience severe complications post-Brexit. In a letter addressed to the then Lord Chancellor, David Gauke, the House of Lords Justice Sub-Committee, which scrutinises several proposals including those regarding fundamental rights, warned that “there is a real risk that Brexit could lead to a diminution of rights protections in the United Kingdom.” They argued that there is a “risk of a fragmented approach to rights protections across the UK”. For example, the Equality Act 2010 does not extend to Northern Ireland, therefore, the Charter is the only legislation that effectively grants such protections in the region.
The lack of transparency around the impact of Brexit on the UK’s human rights regime creates a climate of uncertainty amongst the UK public, particularly ethnic and religious minorities. While the full impacts of Brexit on human rights remains to be seen, it is an important area that must not be overlooked.
MEND calls on parliamentarians to:
- Commit to preserving human rights and the protection of minority rights, including, but not limited to, the rights to religious slaughter, male circumcision and the wearing of religious dress or symbols as currently enshrined within UK legislation.
- Commit to supporting the protections afforded by the EU Equal Treatment Directive to advance protection against discrimination on the grounds of religion to education, healthcare, housing, access to goods and services and social protection, within UK law post-Brexit.