It’s time to talk about Brexit

By Rachel Logan, Amnesty UK's Law and Human Rights Programme Director

It’s time to talk about Brexit. Not the rights and wrongs of the decision. Not whether we’re on course for a hard or soft exit. Not even whether we’re going to be force-fed chlorinated chicken by Donald Trump for Sunday dinner or not. 

It’s time to talk about Brexit and human rights.

There’s absolutely no reason why leaving the EU need mean losing any of our rights. But if the EU (Withdrawal) Bill passes without substantial changes, that’s exactly what will happen. 

On Tuesday 21 November, the Bill hits day three of its Committee stage in the House of Commons – that’s when our MPs debate the nitty gritty of each clause, carefully analysing their effects and voting on any amendments that are needed to make the legislation fit for purpose.

The purpose of this Bill is, the government tells us, simply to make the changes needed to 'provide a functioning statute book on the day the UK leaves the EU.' In other words – to make sure our domestic law doesn’t stop working properly on exit day. 'As a general rule', the Bill’s explanatory notes tell us, it is intended that 'the same rules and laws will apply on the day after exit as on the day before' with Parliament and the devolved legislatures then making any future changes, such as post-Brexit policy changes (aforementioned permission for chlorine washed chicken imports etc!) after exit day.

So far, so sensible. It’s Parliament’s job to scrutinise and decide on any substantive changes to our laws or policy, and that includes any changes to our fundamental rights. 

Unfortunately, that’s not what this Bill actually does. Now stay with me – things are going to get a bit techy. 

Delegated powers

First, it claims to copy and paste the entirety of EU-derived law – into our domestic law as something that will be called ‘retained EU law’. Then, it gives Ministers the power to pass ‘delegated legislation’ (quick and dirty laws that MPs can’t amend once tabled, and will be automatically passed unless a majority of MPs turn up to vote against them) to change that retained EU law in order to do two (main) things: most importantly (a) sort out any ‘deficiencies’ they think it has post-Brexit, and (b) implement the withdrawal agreement. 

But wait, you might be thinking, what is a ‘deficiency’? Isn’t that a very vague term? And we don’t even know what the withdrawal agreement is yet? 
You’d be right. These powers are unprecedented in their scope. They’ve correctly been described as giving ministers a legislative ‘blank cheque’ and sidestepping Parliament. That’s a fundamental change to our centuries-old constitutional balance, and a surrender of Parliament’s law-making power to government ministers. 

There’s nothing to stop the powers being used to roll back our hard-won rights.

That’s why Amnesty has been working hard to persuade Parliament to amend the Bill, to insert a crystal-clear restriction on the delegated powers being used to take away any rights you could reasonably expect to maintain after Brexit. That means things like the right to stand or vote in European elections could go, but nothing that you could and should be holding on to.

The Charter of Fundamental Rights

While the Bill claims to be copying and pasting EU derived law into domestic law, it leaves one, crucial element behind on the cutting room floor – the EU Charter of Fundamental Rights 

The Charter plays an important role in our domestic rights protection architecture. Unlike the European Convention on Human Rights (which has nothing to do with the EU), the Charter only applies when EU law is in issue – like questions about data retention, or pension rights – but it provides stronger protection than the ECHR in those areas (judges can use it to ‘strike down’ primary legislation, like they did when the Brexit Minister David Davis MP used it himself in a privacy case recently!) It is a clear statement of fundamental rights which we all enjoy. 

If this is simply a cut and paste job as the government says, then why is the only thing they are leaving behind our rights protection? 

Action under the general principles

This Bill would also take away another important rights protection we all have – the ability to go to our courts in the UK and claim our rights under what are called the ‘general principles’ of EU law. That’s things like equal treatment, legal certainty, and proportionality. 

Just last summer, a man called John Walker (pictured below) relied on being able to go to court using the general principles to end inequality in pension rights between same sex and heterosexual couples.

John had been with his partner since 1993, and they registered for a civil partnership in January 2006, on the first day the law allowed, later converting that to marriage. He retired in 2003 after working for the same company for 20 years. But UK law meant that if he died before his husband, his husband wouldn’t get the same pension benefits as he would have if he had a wife. John was able to go to court using the general principles to win his case, and transform the lives of thousands of other same sex couples. 

If this Bill isn’t amended, those kinds of cases will no longer be possible.

Amnesty in action

As you can see, although this is pretty complex, it is also pretty important. 

So we have been working hard behind the scenes to get the Bill amended – encouraging MPs to place a hard limit on delegated powers being used to rollback rights, to ensure the Charter is carried over with everything else, and retain the right of action based on the general principles. 

To maximise our effectiveness, and pool resources, we’ve been working with a coalition of NGOs from all kinds of sectors to make sure we share information and ideas. In particular, we’re working closely with Liberty, and now also the Public Law Project and Justice, to push for amendments. 

We’ve rigorously studied the Bill; analysing it and drafting and suggesting amendments. We’ve met with MPs and their advisors from all political parties, to urge them to support our calls. We’ve written briefings, spoken at backbencher meetings and generally put all our advocacy experience and skills to work in fighting to ensure that whatever Brexit means, it doesn’t mean losing your rights.

After it has passed through the Commons, the Bill goes to the Lords, and we’ll be working there too, right up until the Queen puts pen to paper.

This is too important to get wrong. Too important to get frustrated, or to be afraid of the complexity or political sensitivity of the debate. We will be fighting every step of the way to ensure that leaving the EU doesn’t mean losing our rights, and we hope you’ll be right there with us.

(Amnesty International takes no position on Brexit. We are interested only in ensuring people’s rights and protections – something the government also says it wants in leaving the EU.)