The result of the EU referendum on the UK’s membership of the European Union, and forthcoming withdrawal, carries some obvious and very worrying implications for the protection of citizens rights and freedoms in the UK. Historically the UK government has strongly opposed much of Europe’s social rights agenda.
So it’s very concerning that the House of Commons has voted down a Labour amendment to ensure that our basic human rights are protected after Brexit, as set out in the European Union Charter.
The EU Withdrawal Bill, which is currently in its report stage in the House of Commons, will transfer some existing European Union law into UK law when Britain leaves the EU in March 2019. A Labour amendment, tabled in the name of Jeremy Corbyn, sought to retain the Fundamental Rights provisions in the Charter but it has been voted down in the Commons by 321 votes to 297.
The Conservatives have 316 seats and form a minority government after signing a “confidence and supply” agreement with the Democratic Unionist Party (DUP). However this indicates that some 57 other MPs (besides Labour’s 245), voted for Labour’s amendment. (You can see all of the proposed amendments in full here and read the full debate on the Hansard record here.)
Government ministers claim that the protections enshrined in the Charter either already exist in British law or else will be ‘incorporated through other EU directives.’
The bill states: “The Charter of Fundamental Rights is not part of domestic law on or after exit day.”
However, one of Theresa May’s new ministers has claimed the UK’s plan to drop the EU charter of fundamental rights after Brexit would help avoid an ‘extra layer’ of human rights, which contradicts the government’s previous assurance that no protections would be lost.
Rather worryingly, Suella Fernandes, who was promoted to the Brexit department last week, warned in November that transposing the ‘flabby’ charter into British law would give UK citizens additional protections on issues such as “biomedicine, eugenics, personal data and collective bargaining.”
However, the very fact that anyone at all in government objects to retaining these fundamental rights and protections indicates that we very clearly need them.
In an article co-written for the Telegraph with John Penrose, MP for Weston-Super-Mare, Fernandes said the government was right not to copy the charter into the EU withdrawal bill because otherwise “lawyers will love the extra layers of rights and the fees that they bring, and it’s also a core part of the Brussels project too”.
She also says: “We’re about to face another wall of amendments trying to insert the EU’s Charter of Fundamental Rights into UK law after we leave the EU. Human rights law has become complicated. Britain should be proud that we’re a founder member of the European Convention of Human Rights, drafted after the horrors of the Second World War.”
It’s very strange then, that after the trite discussion regarding the atrocities of the Second World War, she fails to acknowledge the need for “flabby” EU protections, which include a fundamental safeguard to ensure the terrible, ultimate and catastrophic consequences of eugenic thinking and policies never happen again.
It’s worth keeping in mind that the Conservatives have already introduced one eugenic policy, by stealth, under the linguistic guise of ‘incentivising behavioural change’. (See also: UN to question the Conservatives about the two-child restriction on tax credits).
Fernandes’ comments directly undermine the government’s claims that it was only refusing to accept the EU charter of fundamental rights because the document was already covered by British law.
It is not.
The Equality and Human Rights Commission (EHRC), Amnesty International, Liberty, the Fawcett Society and National Aids Trust, among others, have warned that the bill, which is returned to the House of Commons today (16 January), “will not protect people’s rights in the UK as the government promised”. They say: “This is in large part because the bill removes the EU charter of fundamental rights from our law.”
The leading civil rights organisations spell out profound concerns that a raft of rights will be jettisoned with no adequate replacement once the bill becomes law and the UK leaves the EU.
They say, in a letter published in the Observer, that a ‘human rights deficit’ will be created by the government’s EU withdrawal bill, leaving many different groups in society without adequate protection.
David Isaac, the chair of the EHRC, the UK’s own independent human rights watchdog, said: “The government has promised there will be no rowing back on people’s rights after Brexit. If we lose the charter protections, that promise will be broken. It will cause legal confusion and there will be gaps in the law.
“While securing trade deals is vital for our economy, equality and human rights are also essential. They must also be the focus for the type of country we want to be after Brexit. Current protections must not be jeopardised.”
According to the signatories to the letter, “The charter protects rights important to all of us: including rights to dignity, protection of personal data and health; and protections for workers, women, children, and older people, LGBTI and disabled people.”
The government maintains that the charter will cease to be part of UK law when Britain leaves the EU but insists that rights will not be weakened following Brexit. However, the signatories claim that independent legal advice shows this to be wrong. They say:
“Losing it creates a human rights hole because the charter provides some rights and judicial remedies that have no clear equivalents in UK law.”
“Furthermore, by keeping the wide and complex body of EU law while throwing away the charter, which is the code to unlock it, the government risks creating confusion, jamming itself in a mountain of legal cases.”
According to the EHRC, rights that would be lost, and which do not have direct equivalents in other UK human rights law, include a freestanding right to non-discrimination, protection of a child’s best interests and the right to human dignity, as well as bioethic protections, including from eugenics and preserving the right to democratic, collective bargaining.
Trevor Tayleur, an associate professor at the University of Law, explained that the charter, although narrower in focus than the Human Rights Act, offers a more robust defence of fundamental rights.
He says: “At present, the main means of protecting human rights in the UK is the Human Rights Act 1998.” (HRA)
“This incorporates the bulk of the rights and freedoms enshrined in the European convention on human rights into UK law and thereby enables individuals to enforce their convention rights in the UK courts. However, there is a significant limitation to the protection afforded by the HRA because it does not override acts of parliament.
“In contrast, the protection afforded by the EU charter of fundamental rights is much stronger because where there is a conflict between basic rights contained in the charter and an act of the Westminster parliament, the charter will prevail over the act.”
The government previously managed to head off a rebellion on the EU Rights Charter issue by Conservative MPs, led by the former attorney general Dominic Grieve, by promising a “right-by-right analysis” of how UK law already covers the same ground as the charter on areas such as children, the environment, data and consumer rights. However, Labour and legal experts said the document showed only how UK law fell short in providing the same protections as the EU charter of fundamental rights.
Labour’s Kier Starmer said: “The document they released fails to provide any assurance that essential rights will be protected once we leave the EU. On the contrary, it takes rights from the charter and scatters them to their original sources: the polar opposite of effective human rights protection.
“We need a cast-iron guarantee in law that the rights contained in the charter will be given the same legal protection as those currently contained in the Human Rights Act.
“This is not a party political issue. It is about the type of nation we want to be. Britain should be a proud advocate of human rights. That’s why I would urge all MPs to back Labour’s amendment to the withdrawal bill when it is debated.”
During debates on the EU Withdrawal Bill, Dominic Grieve said that failing to incorporate the Charter into UK law after Brexit would send out “a really strange message” about the Conservative’s approach to human rights, and has urged peers to consider the issue when the bill passes to the House of Lords.
Many of us have long thought the Conservative’s message is actually very loud and clear, despite being couched in the Orwellian terms and glib, empty assurances of despots in waiting, a government of tyrants just biding their time.
Grieve went on to say: “I listen very carefully to what the Prime Minister says about modernising the Conservative Party, about giving it a broad appeal to younger people, about trying to ensure that we reflect current norms and standards in our country and give effect to them in the sorts of policies we develop.
“And yet … it does seem to me that in simply batting this issue away and saying don’t worry, it’s all going to be perfectly alright, without even coming up with a plan for the future about possibly adding a bill of rights clause or rights clauses to the Human Rights Act, we’re sending out a really very strange message about our attitude on this side of the House to matters which I believe many people in this country now see as being rights of a fundamental character, particularly on issues like LGBT and things of that sort.”
Some lawyers are also very concerned that the government’s refusal to incorporate the charter into UK law will weaken human rights protections. Schona Jolly QC, a human rights and equalities lawyer, said the government’s analysis “fails to tackle the legal reality that abandoning the charter indeed does remove rights that UK citizens currently enjoy and adds to the complexity, confusion and uncertainty surrounding the basis to protect and enforce substantive rights post-Brexit.
“Take, for example, the freestanding right to equality contained within article 21 of the charter. There is no equivalent in domestic law. The Equality Act does not have constitutional status. A constitutional right would underpin all statutory equality rights to provide a strongly focused standard against which state action can be judged, as well as providing a solid interpretative basis by which our domestic common law can be developed.
“The government’s analysis doesn’t begin to deal with this acute loss of one of the most foundational rights in our democracy after we leave the EU. So too in respect of other rights.
“If the government is truly committed to non-regression of rights, it must commit itself in statute. Its weak legal analysis, conducted as an act of self-justification after having already taken the decision to drop the charter, falls demonstrably and critically short in plugging the post-Brexit rights gap.”
The government has a very poor record on observing and upholding the human rights of disabled people, children and women. It’s also a government that has cultivated an extremely divided, unequal, increasingly parochial and nationalist society, which is organised on the establishment of hierarchies of perceived human worth. Diversity has been politically and culturally devalued. Once again, historically marginalised social groups are experiencing a growth in prejudice and discrimination.
This has provided fertile social conditions where it is deemed acceptable that eugenics has crept back into public discourse, though we sometimes fail to recognise the basic arguments of eugenics when they reappear, as few advocates claim the term to describe their beliefs nowadays.
Ignoring the civil rights of some groups and individuals becomes terrifyingly easy in the face of those holding positions of power determined to radically organise society how they choose to, and backed by a group of ‘experts’. Any policy that aims at restricting some citizen’s choices, autonomy and freedoms, and changing the behaviours of some social groups, based on an idea that the groups are in some way ‘defective’ (characteristically – physically, cognitively, psychologically, or behaviourally) is eugenic.
Behavioural economics, for example, is founded on the idea that governments and behavoural economists know what is best for individuals and society, while arguing that poor citizens who need welfare support are cognitively incompetent and ‘deviant’.
“Thus, behavioral economics can reinvigorate [Conservative] arguments about the perverse effects of the welfare state in two distinct ways. For starters, we need behavioral economics to make this critique coherent. Once they have been explicitly placed on a behavioral foundation, claims about the perverse effects of various programs become harder to ignore or dismiss. More importantly, there are good empirical reasons to think that behavioral economics better describes the poor than it does the rest of the population. Behavioral economics is therefore exceptionally relevant to poverty policy.” From: Behavioral Economics and Perverse Effects of the Welfare State, Scott Beaulier and Bryan Caplan, 2007.
I’ll be writing a more in depth analysis on this topic in the near future, which builds on some of my previous work, such as The connection between Universal Credit, ordeals and experiments in electrocuting laboratory rats, critical discussions of behavioural economics and the political misuse of psychology and ‘science’ more generally.
To conclude here, however, we have a government that has aggressively denied that its policies have violated human rights, despite irrefutable empirical evidence presented by the United Nations and other organisations that have held independent inquiries and published their findings. This is a government that has demonstrated nothing but contempt for human rights and democracy more generally, and have more than once proposed to scrap the UK’s Human Rights Act.
Given that we have a regressive, authoritarian government in office with a shameful track record of human rights violations already, following Brexit, what could possibly go right?
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