This blog is about the impact of Brexit on economic and social rights. The blog brings together Equally Ours’ expertise on Brexit, equality and human rights and Just Fair’s expertise on economic, social and cultural rights.
Our rights after Brexit
After all the long, seemingly interminable time after the UK referendum in 2016, with the end of the transition period on 31 December 2020, the UK has finally left the European Union (EU).
But what does it mean for our rights and especially economic and social rights?
Even though we have left the EU, we are still signatories to conventions and treaties that protect rights, through membership of the Council of Europe and ratification of international agreements.
Many rights and protections are contained in the European Convention on Human Rights (ECHR), which still applies to the UK. Our own Human Rights Act (HRA) allows individuals to use rights in the ECHR to bring cases to domestic courts.
The ECHR was drafted in 1950, shortly after the Universal Declaration of Human Rights. Unlike the Declaration, the ECHR doesn’t reflect the principles of universality and indivisibility. This means the ECHR protects civil and political rights but not economic and social rights.
These rights were incorporated into the European Social Charter (ESC) in 1961 which the UK signed as a member of the Council of Europe. The original Charter from 1961 was revised in 1996 and the UK chose not to ratify the revised Charter and the Additional Protocol which allows collective complaints. This means that while the ESC still applies to the UK, currently there is no domestic enforcement mechanism for economic and social rights in the UK courts.
Where can economic and social rights be protected?
The European Court of Human Rights has made decisions which involve cases concerning economic and social rights and in doing so they often reference the International Covenant on Economic, Social and Cultural Rights.
So overall, mechanisms for protecting economic and social rights in the UK are still very limited at the domestic and regional levels.
The EU Charter of Fundamental Rights
Our biggest loss of rights from Brexit is undoubtably the loss of the EU Charter of Fundamental Rights (the Charter). It was the only piece of current EU legislation which was not ‘cut and pasted’ into ‘retained EU law’ in the UK following Brexit.
The Charter brings together the fundamental rights of everyone living in the EU, including the rights protected by the ECHR, the constitutional traditions of the Member States, and the rights contained in other international conventions to which the EU or its Member States are parties. Unlike say, the ECHR, the Charter reflects the indivisibility of civil, political, economic and social rights. It also provides a free-standing right to non-discrimination.
Losing the Charter effectively means there will be significant gaps in substantive rights that do not have direct equivalents in other UK human rights law. As well as the free-standing right to non-discrimination, the rights to protection of a child’s best interests and the right to human dignity will also be lost (although these rights are recognised in international instruments).
The Joint Committee on Human Rights and the Equality and Human Rights Commission have raised concerns over the protection of rights after Brexit. It was noted that the Charter enables individuals to bring legal action to strike down domestic legislation that is incompatible with a fundamental right. This is not possible under the ECHR.
EU case law
Also lost from 1 January 2021 is adherence to case law from the Court of Justice of the European Union. The EU (Withdrawal) Act 2018 did include an amendment that UK courts and tribunals could ‘have regard to’ its case law, but that will no longer be on a statutory footing.
ECJ rulings/case law can now also be challenged in the UK courts and these can help unpick the existing laws on these rights and standards if the challenge is found favourable. Both Employment Tribunals and Judicial Reviews (JR)s may be made more difficult to use following the current review of JR and the on-going access to justice issues with tribunals.
Other rights at risk
The EU (Withdrawal) Act 2018, could also mean changes to equality law. After significant lobbying, a government amendment was introduced which required a minister to make explanatory statements, including in relation to equality issues. However, this only applies to secondary legislation and does not apply to all other Brexit-related primary legislation and could be used to reduce existing protections. It does not require a statement that current levels of protection will be maintained and there is nothing to stop ministers reducing protections.
The UK/EU trade deal, the Trade and Cooperation Agreement, seems to have resulted in the likelihood of UK labour rights coming under threat. The Agreement leaves workers’ rights (and environmental protections) at serious risk of erosion because the new mechanisms agreed for safeguarding a “level playing field” sets too high a bar for evidence, so that any alleged breach would necessitate a protracted period of investigation and in reality, would rarely be enacted or enforced.
So what now?
Our flimsy access to economic and social rights remain more or less the same after Brexit. But other rights that can underpin these rights have been lost or diminished.
Now more than ever, when we have seen structural inequality grotesquely highlighted by Covid, it is essential that the UK Government realises the value of incorporating and implementing a human rights framework to protect all rights, including our social and economic rights.
Liz Shannon has worked at Equally Ours for the last four years working on protecting equality and human rights as we leave the European Union. @EquallyOurs
Misha Nayak-Oliver is the Campaigns and Advocacy Lead at Just Fair, working to ensure adequate protection of economic, social and cultural rights in the UK. Just Fair calls for the UK Government to incorporate and implement the International Covenant on Economic, Social and Cultural Rights. Find out more information on our campaigns page here.