A group of equality organisations and human rights experts, including the Equality and Human Rights Commission (EHRC), has warned the government that the EU (Withdrawal) Bill will not protect workers’ rights.
This is in large part because the Bill removes the Charter of Fundamental Rights from the ambit of UK law. The Charter protects rights that are important for everyone: including rights to dignity, protection of personal data and health; and protections for workers, women, children, older people, LGBTI and disabled people.
Independent legal advice commissioned by the EHRC shows that the Government’s assurances that rights will not be weakened following Brexit is wrong for six main reasons:
- Less power to protect rights - the Charter provides more powerful mechanisms for protecting rights than are available elsewhere under UK law.
- Less flexibility to create new rights - The Charter is a ‘living instrument’, meaning that the rights it provides must reflect social change and be interpreted in the light of present day conditions.
- A lower level of protection for fundamental rights - the Charter makes sure that EU law upholds basic rights which includes striking down any EU law that undermines these rights.
- Creating gaps in basic human rights – the Charter includes rights that do not have direct equivalents in other UK human rights law. For example, a free-standing right to non-discrimination and the right to human dignity.
- Losing the Charter principles – the Charter is based on principles which can be used to interpret rights and other laws.
- Legal uncertainty and confusion – although the government carried out a “Right by Right” analysis in order to identify alternative sources of Charter rights scattered throughout domestic law, case law and international law, the EHRC warns that this is a recipe for costly and time-consuming litigation as the courts seek to establish how far the rights in the Charter continue to apply after Brexit.
All these problems, as the EHRC points out, could be solved by keeping the protections within the Charter in UK law.
Gerard Airey of Thompsons Solicitors commented: “The rights enshrined in the Charter are based on accepted standards as they now stand in society. Any suggestion that these protections are at risk is alarming and I would echo the advice that the protections within the Charter should be kept in UK law after Brexit.”