Human rights and trade after Brexit
This is in draft form and needs checking and editing. There may be errors in this text.
One of the UK Government's main aims in leaving the European Union is to "bring an end to the jurisdiction in the UK of the Court of Justice of the European Union (CJEU)".
As the CJEU is currently the final arbiter of human rights in relation to EU law in the UK, this leaves open enormous questions about what impact Brexit will have on human rights in the UK.
This paper//blog//report//briefing lays out how human rights law presently works in the UK in:
- the UK Human Rights Act – linked to the European Convention of Human Rights and the European Court of Human Rights, and
- the Court of Justice of the European Union – using the EU Charter of Fundamental Rights
We also look at the most likely scenarios of how the UK would leave the EU and what impact they would likely have on human rights law in the UK.
We have important recommendations for the UK Government and Parliament to ensure that human rights remains central to UK law, that UK citizens can continue to challenge laws and new trade agreements on human rights grounds after Brexit, and that important human rights are not lost due to Brexit.
1. The Government should instruct UK courts to // take post-Brexit CJEU case law into account // have regard to post-Brexit CJEU case law // in future rulings. This would help ensure that UK law is situated within a broader international human rights framework. CJEU judgments would not be binding and UK law would still be supreme.
"have regard to" = if post-Brexit CJEU case law is relevant, then have a look at it
"take into account" = make post-Brexit CJEU case law a component of decision-making
(The wording above is an important distinction. Take into account gives CJEU case law a greater role than have regard to. Take into account is also potentially more burdensome for judges.)
2. The Government should ensure that UK citizens are still able to challenge the implementation of future UK trade agreements on human rights grounds in a similar way to as we can as EU citizens. After Brexit, such challenges would likely only be possible under the UK Human Rights Act rather than the EU Charter of Fundamental Rights.
3. Parliament/An independent Commission/someone else should investigate whether the additional rights in the EU Charter of Fundamental Rights that are not in the UK Human Rights Act should be brought into UK law. Important rights to data protection, environmental protection and labour rights will to some extent be lost once the UK is not party to the Charter of Fundamental Rights.
Status quo 1: the UK Human Rights Act and the European Court of Human Rights
The UK Human Rights Act (HRA) is UK legislation that incorporates nearly all of the European Convention of Human Rights (ECHR). Compliance with the ECHR is overseen by the European Court of Human Rights (ECtHR) and the Human Rights Act by the UK courts. UK courts can refer questions to the ECtHR.
Neither the ECHR nor the ECtHR is directly related to the European Union. When the UK leaves the EU, it will remain party to the ECHR and under the jurisidiction of the ECtHR. That is not to say there is no possibility of the UK leaving the ECHR or re-writing the HRA. Theresa May has said that she would like to see the UK leave the Convention. Leaving the ECHR or re-writing the HRA would however be a separate process to Brexit with the UK planning to leave the EU including the Court of Justice of the European Union.
UK law can be challenged on the grounds that it is incompatible with the HRA. UK courts can find that a piece of legislation is not compatible and make a declaration of incompatibility. The legislation is still valid until Parliament amends the legislation. Although declarations of incompatibility are technically non-binding, there would be a constitutional crisis if the Parliament kept a piece of legislation on the statute books which had been found incompatible with the HRA.
The ECtHR can also rule that UK legislation is incompatible with the ECHR. It did just that with the issue of the UK's ban on prisoners voting . The UK Government has so far refused to amend UK legislation in this area in light of the ECtHR's ruling. The UK Government the UK Supreme Court has found in the Government's favour which gives it political cover and to some extent legal cover .
Status quo 2: the Court of Justice of the European Union
The Court of Justice of the European Union (CJEU) has ultimate authority on the application and interpretation of EU law. In the context of human rights, the most important aspect to the CJEU is that it applies the EU Charter of Fundamental Rights (EUCFR). The EUCFR includes the rights laid out in the ECHR and builds on them, adding further rights to data protection, environmental protection, and labour rights. The ECHR offers the minimum rights required but the Charter goes further in its protections.
The CJEU resolves disputes between member states and the EU. Courts in member states can also refer cases to the CJEU where an area of EU law is uncertain. The CJEU could also rule on whether trade agreeements made by the EU are compatible with EU law including human rights law in the EUCFR.
The CJEU can rule that EU or member state legislation conflicts with the EUCFR and immediately invalidate legislation. This happened recently in the case of the EU Data Retention Directive.
Unlike the ECtHR, the CJEU's decisions and case law (the precedent set by past judgenents) are binding on UK courts, the UK Parliament and UK citizens. When the UK courts are applying and interpreting EU and UK law, they must apply the past judgments of the CJEU.
Once the UK leaves the EU, it is unlikely that it will remain under the jurisdiction of the CJEU. The supremacy of EU law and by extension CJEU case law over the UK courts will end. The Government plans to say that pre-Brexit CJEU case law will apply to the UK. The UK courts would be able to depart from that case law however. This would be in much the same way that the Supreme Court can overrule previous Supreme Court rulings if it wants to.
Conservative Ministers and the Prime Minister have repeatedly reiterated their desire to ensure the UK is not bound by CJEU rulings after Brexit. Having said that, the political situation is very fluid. The CJEU may yet continue to be used to resolve disputes in some areas such as the equivalence of regulations between the UK and the EU. BACK THIS UP
Generally speaking, the CJEU has helped to create a more progressive approach to human rights within UK law. If the UK is no longer under the jurisdiction of the CJEU, UK citizens will lose the ability to challenge UK legislation on the grounds that it is incompatible with EU law such as the EUCFR. UK legislation (and the implementation of UK trade agreements) will have to be compatible with the Human Rights Act.
Leaving the European Union
Assuming the UK does leave the European Union, there will be some impact on the adjudication of human rights law (and law generally) post-Brexit. The impact will differ depending on which variety of Brexit the UK eventually goes for. The following section lays out how human rights laws would likely work and what relationship the UK with EU law would like have in various varieties of Brexit.
Option 1: Leave the European Union and the Single Market with a free trade agreement (Canada-esque)
How it would work
This is the UK Government's preferred option. It usually takes longer than two years – the time the UK has before EU treaties cease to apply to the UK under Article 50 – to negotiate a trade agreement. There may therefore be a transitional arrangement for a period before the UK can move to a full free trade agreement.
The UK Government set out in its white paper on the Great Repeal Bill – now known just as the Repeal Bill – that it will transpose existing EU law and pre-Brexit CJEU case law into domestic UK law. While this may mean that EU human rights law is converted into domestic UK law, the UK Government says it will adapt laws and regulations in this process. This may mean that some aspects of EU human rights protections are brought into UK law and some lost. UK Government ministers are expected to use powers to make these changes without full Parliamentary scrutiny.
As EU law would not be supreme over UK law, when the UK Parliament passes post-Brexit legislation that contradicts EU law, the UK legislation would take precedence. The UK Supreme Court would rely on (but not bound by) pre-Brexit CJEU case law. The Government says it expects the Supreme Court to take a "sparing approach to departing from CJEU case law".
As highlighted by Raphael Hogarth in his paper for the Institute for Government, the UK has not yet made clear a) the role of post-Brexit CJEU case law in the UK, b) to what degree UK judges should consider the EU treaties when interpreting UK law that is derived from EU law, and c) the circumstances in which UK judges should contradict pre-Brexit judgments by the CJEU.
There are also outstanding questions about what will happen to ongoing CJEU cases with UK parties when Brexit happens and what role the CJEU will have in resolving cases involving EU citizens in the UK and UK citizens in the EU.
The effect on human rights
UK Courts would no longer have to refer to the EU Charter of Fundamental Rights (EUCFR) and would use the UK Human Rights Act (HRA) when assessing human rights compliance in UK law. They could still refer to pre-Brexit CJEU case law. Because the HRA does not contain rights to data protection, environmental protection, and labour rights that are in the EUCFR, UK citizens would not be able to rely on those rights in legal challenges to UK law or trade agreements.
Pre-Brexit CJEU case law that is relevant to human rights would continue to apply in UK courts so arguments could be made to British judges that rested on previous CJEU judgments. UK judges could, however, divert to some extent from that case law where it felt it necessary.
The UK has a dualist legal system where international agreements have to be 'activated' by domestic legislation in order to have effect in the UK. In the case of EU legislation, Parliament passed the European Communites Act 1972 in order to make EU law active in the UK. This means that there will have to be some primary UK legislation to give domestic effect to any trade agreements that the UK makes post-Brexit.
It would then be the implementation of trade agreements in the UK that would be challengable by UK citizens rather than the trade agreements themselves. Such challenges could be made on human rights grounds and the UK courts could refer to the Human Rights Act to adjudicate on the compatibility of the implementation of a trade agreement.
The UK will likely want to retain levels of regulatory equivalence with the EU on areas such as data protection to ensure UK companies can do continue to do business in Europe. Government ministers like David Davis have a various times talked about creating a new international dispute resolution forum to adjudicate disputes on these areas. They are keen to ensure the CJEU is not that forum. If that forum is set up, it remains unclear what form that new mechanism will take and what role human rights law would have there.
The EU's 'safe harbour' rule that non-EU countries which receive data transferred from the EU must have equivalent data protection standards may incentivise the UK to have data protection standards on par with those laid out in the EUCFR and CJEU case law. Past CJEU judgments have found that the USA, thanks to the surveillance carried out by the NSA, does not have equivalent data protection standards to the EU. This suggests that the EU may not find that the UK (with GCHQ's surveillance) has equivalent data protection standards either.
Option 2: Leave the European Union but stay in the Single Market (Norway-esque/EEA)
How it would work
The UK would likely convert existing EU law and CJEU case law into UK primary legislation as with option 1 above.
Beyond that, if the UK stays in the single market as part of the European Economic Area (EEA) and joins the European Free Trade Association (EFTA), the UK would be under the jurisdiction of the Court of Justice of the European Free Trade Association (EFTA Court). The UK would also stay signed up to the four Single Market freedoms of movement, goods, services, and money.
The EFTA Court applies and interprets EEA law. Member state courts can refer cases to the EFTA Court, but unlike EU law, EEA law and EFTA Court case law does not take precedence over national laws. EFTA Court rulings are technically advisory, rather than binding. Unlike the CJEU, its ruling therefore cannot render a piece of UK legislation invalid.
The CJEU does have a role in the EFTA court as CJEU judgements from before 1992 are must be followed by the EFTA Court. CJEU case law from after 1992 is generally followed by the EFTA Court as well. This would be unlikely to change if the UK joined EFTA.
If the UK remains part of the EEA and uses the EFTA Court it would not be under the direct jurisdiction of the CJEU. CJEU case law would still have a role in EFTA Court rulings on UK law. Those rulings would not be binding on the UK and Parliament would not absolutely have to change laws.
The UK Government could fulfil its wish to end the jurisdiction of the CJEU over the UK this way. The harshest critics of the CJEU would, however, be unlikely to be happy with this arrangement.
The effect on human rights
The EFTA Court does take the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) into account as general principles of EEA law. 
Importantly, the EFTA Court has said in a judgment that the EEA Agreement should "be interpreted in the light of fundamental rights" and that "The provisions of the European Convention of Human Rights and the judgments of the European Court of Human Rights are important sources for determining the scope of these rights." The Court then refered to the Article 6 right to a fair trial in that judgment. The EFTA Court has at various other times referred to the ECHR and the ECtHR – particularly the right to a fair trial but also to the Article 10 right to freedom of expression.
The Charter of Fundamental Rights (EUCFR) does not apply in the EFTA Court but it does have some influence on how judges in the EFTA Court understand rights. 
All of this does suggest that cases brought to UK courts that was about compliance with the EEA Agreement and had human rights questions could be referred to the EFTA Court by British judges. The EFTA Court could make a judgment that referred to rights in the ECHR. The UK Courts could then refer to that judgment when the case reverted back to the UK.
Option 3: Leave the European Union and the Single Market
No CJEU, no EFTA court, WTO tribunals, tribunals agreed to by UK in agreements, UK courts on implementation of them
The UK could leave the European and the Single Market and then either remain in the Customs Union, make a new customs union between UK and EU, or leave the Customs Union as well.
Questions to answer
What about TAs signed after WWII and after ECHR ratification but before passed ECA? UK signed GATT in 1947 (https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c2s1p1_e.htm)
- https://www.domstol.no/globalassets/upload/hret/artikler-og-foredrag/fundamental-rights-in-eea-law---bardsen-03062015.pdf – Paragraph 20
- https://www.domstol.no/globalassets/upload/hret/artikler-og-foredrag/fundamental-rights-in-eea-law---bardsen-03062015.pdf – Paragraph 21-3