Brexit is neutral on human rights – but EU Withdrawal Bill isn’t, says leading academic

Caitlin Logan

European law expert says scrapping Charter of Rights is not EU repeal bill’s biggest threat

HUMAN rights and equalities protections are “put at risk” by EU Withdrawal Bill –  and scrapping the Charter of Fundamental Rights is only the tip of the iceberg – according to a senior academic in European law and human rights.

Following a vote in the House of Commons this week which passed the EU Withdrawal Bill to the committee stage, CommonSpace spoke to Dr Tobias Lock, Senior Lecturer in EU Law at Edinburgh University and Co-Director of the Europa Institute about the implications.

Lock, who wrote a paper on the human rights implications of the EU referendum for the Scottish Human Rights Commission prior to the vote last year, said the proposed bill would put human rights “at risk” and that the issue was far more wide reaching than its promise to scrap the Charter of Fundamental Rights.

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Speaking of the charter, Lock said: “It hasn’t had huge effect in UK law so far. There have been a few cases where it has been important, but it only applies to EU law.”

What this might mean, Lock said, is that there will be cases where people in the UK will no longer be able challenge a law in court on a human rights basis where they would be able to under the current system.

Lock said: “The EU rules we are currently applying will be UK rules, and [the government] won’t have to comply with the charter when applying those rules.

“As an example, there was a case three or four years ago in England where two women were basically slave labourers in a foreign embassy. They got out and sued them for pay.

“Normally they would have been unsuccessful because you can’t sue a foreign embassy under the State Immunity Act. This was one of the cases where the Charter of Fundamental Rights really showed its teeth because it was used to show that the law was incompatible with EU law.”

“There is nothing to prevent the UK from having the same or higher human rights standards than the EU.” Dr Tobias Lock

Lock suggested that the focus on the Charter of Fundamental Rights, however, was potentially missing the bigger picture of the bill’s ability to imperil equality and human rights protections.

Lock said: “What’s perhaps a bit more hidden is that all sorts of EU law is transformed into UK law by the bill, and the powers of government to amend those laws is then very far reaching.”

Lock explained that the extent of this risk is not inherent in leaving the EU, but rather in the detail of the EU Withdrawal Bill itself: “When it comes to human rights or workers’ rights, there is nothing to prevent the UK from having the same or higher human rights standards than the EU. Brexit is kind of neutral in that sense.”

There are a number of obligations, Lock noted, which the UK is currently bound to under the EU, on issues such as maternity leave and working hours. The difference outside of the EU, Lock said, will be that these laws “will become part of normal politics”, where different parties can propose different policies and vote on those policies in parliament.  

The problem with the EU Withdrawal Bill, he said, is that it “puts these rights in a more precarious position” because of the powers conferred to government ministers which would allow them to amend and create laws.

“It’s very broadly formulated so that everything is somehow connected [to the EU] – it’s almost a work of genius.” Dr Tobias Lock

While the bill specifically precludes any changes being made to the Human Rights Act by these means, Lock said it could allow the government to amend the Equality Act 2010 and other equalities legislation without the scrutiny of parliament.

Lock said that, while laws such as this shouldn’t have to be included in the process of transferring laws back from the EU, the language of the bill in defining “retained EU law” would allow this.

Lock said: “It’s very broadly formulated so that everything is somehow connected [to the EU] – it’s almost a work of genius.”

The potential for the government to make these changes without going through parliament is “problematic because you don’t have a debate”, Lock said. “We have a minority government which would struggle to make changes to, for example the Equality Act, which will now be able to do that with this bill.”

Since the bill passed its second reading on Monday, a raft of proposed amendments have been proposed by MPs, including a number of Conservatives, while the Scottish and Welsh Governments have laid out their recommendations for the Scottish Parliament and Welsh Assembly to refuse to give consent to the bill unless amendments are made.  

Picture courtesy of Hernán Piñera

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