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Brexit and Human Rights

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Disability Rights UK Factsheet F59

This factsheet examines the possible effect on human rights in the UK, following the referendum vote on 23 June 2016 to leave the European Union (EU).

Withdrawal from the European Union (EU)

The UK has notified its intention to withdraw from the EU by invoking Article 50 of the Lisbon Treaty which notifies the European Council of its intention to leave and begin negotiations with other member states for its withdrawal from the EU. EU treaties will cease to apply within two years, unless a longer time is agreed. Any future alignment with EU law will now depend on treaty negotiations.

Brexit and UK law

The UK has over 40 years of EU law ‘sewn’ into its own laws. It is not the Government’s intention that all EU law is removed. Instead, it has introduced what was known as  the ‘Great Repeal Bill’ - now published as the European Union (Withdrawal) Bill (See also the  Repeal Bill white paper)

The European Union (Withdrawal) Bill repeals the European Communities Act 1972 (ECA) on the day the United Kingdom leaves the European Union.

The Bill, once passed as an Act, ends the supremacy of European Union (EU) law in UK law and converts EU law as it stands, at the moment of exit, into UK domestic law.

It also creates temporary powers to allow corrections to be made to laws that would otherwise no longer operate appropriately once the UK has left, so that the our domestic legal system continues to function correctly outside the EU.

The Bill will also incorporate whatever is decided under the withdrawal agreement with the other EU countries.

The House of Commons Library has estimated that 13.2% of UK primary and secondary legislation enacted between 1993 and 2004 is EU related.

Most EU law, which affects the UK, will probably remain though, over time, some law will be amended and some will be repealed/abolished.

As yet, it is not clear how this repeal process will work in relation to Scotland, Wales and Northern Ireland.

The House of Commons Library has published a briefing which discusses areas of law, which may be affected by Brexit, including law related to employment rights, transport, human rights, social security, social housing, social housing, health care and higher education.

The Department for Exiting the European Union has produced a series of guides to the repeal Bill

Timetable for the European Union (Withdrawal) Bill

You can view the progress of the Bill on the Parliament website

After the Bill has become law, the Government will begin bringing forward secondary legislation to correct laws that will not operate appropriately once we have left the EU. These statutory instruments will be subject to parliamentary procedure.

For more information see the House of Commons Library publication Brexit timeline: events leading to the UK’s exit from the European Union

Brexit and Human Rights

European Court of Justice

The European Court of Justice interprets EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between national governments and EU institutions. In some cases it allows individuals, companies or organisations to take action against an EU institution, if they feel it has somehow infringed their rights.

The main work of the court involves:

  • Providing preliminary rulings for national courts of EU countries on the interpretation or validity of an EU law as well as advising whether a national law or practice is compatible with EU law.

  • Infringement proceedings against a national government for failing to comply with EU law.

  • Actions for annulment where an EU act is believed to violate EU treaties or fundamental rights, including actions brought by individuals.

  • Actions for failure to act by the EU.

  • Actions for damages where any person or company has had their interests harmed because of the action or inaction of the EU or its staff.

For more about the court see the European Union website

Currently a European Court of Justice decision outweighs a UK Supreme Court decision. The European Union (Withdrawal) Bill provides that direct jurisdiction of the Court of Justice of the European Union (CJEU) in the UK will end at the point of our withdrawal from the EU.

In future, post-Brexit, the Government may find it necessary to apply new European law but, where appropriate, this will be enshrined in British law and decided by British courts. Other agreements where Britain may have to take account of EU law may require a new form of dispute resolution utilising neither the British or the EU court.

The Withdrawal Bill also contains a clause which allows courts and tribunals to consider European law post-Brexit though, as yet, there is no guidance on how this might be applied.

European Union (Withdrawal) Bill Clause 6(2)

"A court or tribunal need not have regard to anything done on or after exit day by the European ccourt,  another EU entity or the EU but may do so if it considers it appropriate to do so."

EU Charter of Fundamental Rights

The EU charter of Fundamental Rights is intended to protect economic, social, cultural, civil and political rights. This goes beyond the European Court of Human Rights and includes areas such as social policy. The Charter includes rights for the disabled, elderly and children as well as protecting rights relating to employment, housing and health. The charter is really a collection of rights, which are also usually contained elsewhere within European (and UK) law.

Questions related to Charter Rights can currently be heard in UK courts where they are concerned with EU law.  They can also be taken to the European Court of Justice.

Following withdrawal from the European Union, the EU Charter of Fundamental Rights, will not apply - see clause 5(4) of the European Union (Withdrawal) Bill.

The European Convention on Human Rights

This is an international treaty which Member States of the Council of Europe have signed, including the UK. The Convention sets out a list of the rights and guarantees (Articles and Protocols) which the States have undertaken to respect.

The convention was originally proposed by Winston Churchill and was drafted mainly by British lawyers.

The European Court of Human Rights (ECHR) hears cases related to the European Convention on Human Rights. These decisions are not directly affected by Brexit. Unlike European Court of Justice decisions, ECHR decisions are not binding though many human rights decisions are considered so important that they become part of EU law, which is binding on EU states.

Brexit will not prevent cases being taken to the ECHR, but the repeal of the Human Rights Act might render ECHR decisions less effective.

The UK Human Rights Act

The UK Human Rights Act (HRA) provides that UK courts “must take into account” any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.

For more information on the uses of the HRA see our factsheet F1 - human rights act

You can find summaries of Human Rights related court cases by going to the case law page on our website.

The Government plans to replace the HRA with a Bill of Rights at some point.

British Bill of Rights

As yet, we have no details about what this Bill will contain, but its aim is that rights would be set out by the UK parliament rather than Europe.

European Court of Human Rights decisions will still be relevant to our law but the British Bill of Rights will determine just how relevant they are. As a result, ECHR decisions may not be directly enforceable in UK courts, though the UK is bound under international law by the UN Convention.

It is also not clear how a British Bill of Rights would apply to Northern Ireland and Scotland.

The Equality Act

The Equality Act is UK law, which came into force in October 2010, bringing together different discrimination laws into one.

Under the Act, disabled people should be treated equally.

Protection from discrimination applies in many situations such as education, employment, exercise of public functions, goods, services, facilities and transport.

The Act also covers discrimination on grounds of Age, Race, Sex, Sexual Orientation, Religion, Pregnancy, Marriage or Civil Partnership.

For an overview of the Equality Act see factsheet F56 - understanding the equality act: information for disabled students

There are no plans to remove the Equality Act, following Brexit.

United Nations Convention on the Rights of People with Disabilities

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, expresses the rights to which all human beings are inherently entitled. The full text is published on the United Nations website

The United Nations Convention on the Rights of People with Disabilities restates and clarifies this declaration in relation to disabled people.

For more information, see Equality and Human Rights Commission Guide - The United Nations Convention on the Rights of People with Disabilities: What does it mean for you? 

The UK is bound under international law by the Convention but breaches of rights are often the subject of argument between the UN and the UK.

Where can I get more help or information?

The House of Commons Library has produced a series of research briefings. The onle one related to disability is Consultation with disabled people on the effect on their services of the UK leaving the EU which was produced for a parliamentary debate

Central to the debate was Disability Rights UK's work in consulting disabled people throughout the UK about their Brexit concerns and before developing our Brexit manifesto

Other briefings include:

All our factsheets are free to download on our website at disabilityrightsuk.org.

4 September 2017