A happy Brexit? We should rather brace ourselves for a dramatic change in our democratic freedom – for the worse

Civil liberties and Brexit

Second, there was and is undeniable strength from a civil liberties perspective in this idea of ‘taking back control’. Civil liberties are linked to but not quite the same as human rights, overlapping but more targeted than human rights. They are concerned more with process than outcome, ensuring a politically free society in which liberty is maximised (Gearty 2007). In theory, Brexit should achieve this, and perhaps it might two or three further revolutions down the line. In the short term however if the Bill currently before Parliament emerges in anything like its current shape the effect of Brexit will be a large transfer of power to the executive branch, unprecedented in modern history, and one that itself threatens to be of doubtful legality (if the courts choose to follow up on their recent threats to oversee the legitimacy of primary legislation).

Burking Poor Old Mrs Constitution, (Wikipedia), licenced under CC BY 4.0.

Human rights

The Charter

The vote to keep the EU charter out of UK law was defeated last night (21 November) by just ten votes. So Clause 5(4) remains: ‘The Charter of Fundamental Rights is not part of domestic law on or after exit day.’ It’s true that the Charter has had an influence on EU and therefore domestic law, as David Davis well knows with his own case (albeit eventually lead by Tom Watson) having been successful before the European courts:  The Davis and Watson case in the ECJ engaged articles 7, 8 and 11 in a way that certainly added value to the argument, and there are many other examples.

But all is not as it seems.  The Explanatory Memorandum assures us (at para 99) that ‘The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill. References to the Charter in the domestic and CJEU case law which is being retained, are to be read as if they referred to the corresponding fundamental rights. ’ So it’s sort of still there. There is a complex discussion on this in letters exchanged between the chair of the Joint Committee on Human Rights Harriet Harman and David Davis, and much remains to be resolved as to what exactly is involved in applying principles but not rights. Perhaps so far as the Charter is concerned it is a bit like the impact of the EU on sovereignty which, as all will recall, the Brexit White Paper infamously summarised as follows: “Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”  (Para 2.1)

EU Citizens 

There are some guarantees in the EU (Withdrawal) Bill – in particular free movement directives transposed into UK law. But questions have been raised about the coherence of this, given that the stuff being transposed is entirely based on an assumption about EU membership. Perhaps there is no meaning to the transposition. Even if there is how can we be sure that these will not change, either before or after Brexit Day?

So far as the first is concerned, of course, EU citizens here are a ‘bargaining chip’ [© Liam Fox] and the whole point of Brexit is surely its nationalist force – it is land, not the people on it that matter, and certain people on that land matter more than others. An especial folly of those advocating Brexit is to pretend this is not the case, trying to have their nationalist cake and eat it with human rights instruments. This cannot work.

As usual the Irish are simply ignored by the British Brexit-drivers

The Irish

A particular subset of EU citizens are the Irish. As usual the Irish are simply ignored by the British Brexit-drivers: it is as though these advocates of withdrawal cannot get their heads around the changes achieved by Irish revolutionaries and their supporters in 1921. But how can the Common Travel Area revive if the frontier between the Republic of Ireland and the United Kingdom (including Northern Ireland) is an external EU border? How can people come and go between the two places – sooner or later this vast hole in the EU’s territorial integrity will have to be filled in. And what then? Will the UK retaliate against border controls in Dublin by imposing their own controls on the entry of the Irish into Britain and (even) Northern Ireland? Will the millions of Irish in the UK need to be registered? Will they be expelled to Ireland? Unfortunately, as we are beginning to see with so many of the implications of Brexit, wishing away a problem does not make it disappear. The Irish Taoiseach Leo Varadkar is right to be concerned, and insults from the British press and patronising jibes from senior Unionist politicians will not make the issue go away. But then as so often with the proponents of Brexit, hit the person, not the argument. But even the Mail is now vaguely having to acknowledge Ireland is a separate state and not – like Wales and Scotland still – required to take instruction from the English on Brexit.

The right to security

No better explanation of the negative impact here can be found than that set out by the current Prime Minister Mrs May in the only speech she gave during the whole referendum campaign, on 26 April 2016. Here is exactly what she said then:

  • The European Criminal Records Information System, Financial Intelligence Units, the Prisoner Transfer Framework, SIS II, Joint Investigation Teams, Prüm.  These are all agreements that enable law enforcement agencies to cooperate and share information with one another in the fight against cross-border crime and terrorism.  They help us to turn foreign criminals away at the border, prevent money laundering by terrorists and criminals, get foreign criminals out of our prisons and back to their home countries, investigate cases that cross borders, and share forensic data like DNA and fingerprinting much more quickly.

  • In the last year, we have been able to check the criminal records of foreign nationals more than 100,000 times.  Checks such as these mean we have been able to deport more than 3,000 European nationals who posed a threat to the public.  The police will soon be able to check DNA records for EU nationals in just fifteen minutes.  Under the old system it took 143 days.  Last year, the French used information exchanged through the Prüm agreement to locate one of the suspected perpetrators of the November attacks in Paris.

  • These are practical measures that promote effective cooperation between different European law enforcement organisations, and if we were not part of them Britain would be less safe.’

Social and environmental rights 

It may well be that as Professor Merris Amos has observed, ‘The real diminution in human rights protection actually lies further down the track when retained EU law is converted into domestic law’.

Potential changes could reach any or all of the following, and more besides:

  • Equal Pay; maternity; holiday entitlements; health and safety protection; agency workers; TUPE
  • Clean air (Heathrow), clean beaches, unpolluted waters
  • Protection of the rural environment
  • Food safety

These are policy areas which have been largely developed and protected by EU law, often in the teeth of UK hostility. It is asking a lot to believe that they are bound to remain the same, especially as there is a very strong drive towards a low-regulation, business-friendly environment to take the place of the ‘sclerotic’ EU on the UK’s departure. Powerful business leaders and politicians have been pushing such a view: people like James Dyson; Priti Patel and Martin Callanan, while the Chair of the Institute of Directors Lady Barbara Judge has recently observed, arguing for change in this area, that ‘Long maternity leave is bad for mothers’. We can expect much more of the same – and of course, change will be often capable of being brought about by ministerial order – and even those bits of the current bill which make that impossible might themselves be changed. We really are in a world of executive power.

Certainly, the EU takes this possibility of a plunge downmarket in search of prosperity at any cost seriously – see the remarks of Mr Barnier on 20 November.

The Human Right Act

This post represents the views of the author and not those of the Brexit blog, nor of the LSE.

Conor Gearty Professor of Human Rights Law LSE.