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      Human rights

       

      Current state of play

      • Human rights in the UK are currently protected by three main regimes, which work in parallel:
        1. the common law;
        2. the Human Rights Act (HRA), which incorporates the protections provided by the European Convention on Human Rights (ECHR); and
        3. the human rights protections derived from EU law, which are mainly reflected in the EU Charter of Fundamental Rights (CFR).
      • These regimes give businesses the power to challenge regulatory action on either procedural grounds, eg an inadequate consultation or an unfair trial, or due to substantive violations, eg expropriation of property.

      What should I be thinking about now?

      • The common law, the HRA and the ECHR will be unaffected by any Brexit. This is due to the domestic basis of the common law, the HRA being a domestic statute and the ECHR being agreed by the 47-nation Council of Europe (not the EU).
      • However, unless an agreement is negotiated to the contrary, a Brexit is likely to mean that the EU-based human rights protections, including the CFR, would cease to apply in the UK.
      • The HRA and the application of the ECHR in the UK may well be impacted by a (separate) move to a British ‘bill of rights’. The scope and timetable of this development are unclear.

      What could the position be following a Brexit?

      The answers to many of the above questions could depend on the nature of a post-Brexit UK/EU relationship.

      To give an idea of the range of possible outcomes, we have considered what the position would be under the ‘Norwegian option’ and the ‘World Trade Organisation (WTO) option’ – on the basis that these are at opposite ends of the spectrum of existing models for an alternative relationship with the EU.

      Under the Norwegian option, the UK would join the European Free Trade Association and remain a member of the European Economic Area.

      Under the WTO option, the UK would rely solely on rights and obligations under WTO rules.

      Many of the EU human rights protections are also found in the ECHR or at common law. They will continue to apply under both the Norwegian and WTO options, so the impact of any Brexit on your human rights protection is likely to be limited.

      However, given that the CFR won’t apply under either option, we believe a Brexit may affect your human rights in two ways, as set out below.

      A narrower range of protected rights

      The core ‘political’ rights, such as freedom of speech and freedom from torture, are protected by both the EU and non-EU instruments that currently apply to the UK.

      However, the CFR in particular includes many wider social and economic rights, such as the rights to fair and just working conditions, to health care and to have personal data protected. These are not found, or only found to a more limited extent, in other instruments.

      Reduced protection of human rights by way of judicial review challenges to primary legislation

      If primary legislation is found to be contrary to human rights, it is possible to strike down that legislation if:

      • it is within the ‘material scope’ of EU law; and
      • it is found to be contrary to EU law, which includes the protections of the CFR.

      This means that in a field currently regulated by the EU, it is in principle open to you to challenge an Act of Parliament if it is incompatible with EU fundamental rights.

      Brexit would remove this avenue: under the common law, judges may not strike down legislation; under the HRA, judges are only allowed to issue a ‘declaration of incompatibility’ in relation to primary legislation.