If Parliament votes through Theresa May’s deal on Tuesday there will eventually be an unavoidable and negative impact on the protection of individual rights in the UK. The removal of the obligations of EU membership will profoundly weaken the foundations of consumer, equality, digital and workers’ rights, as will the loss of the EU Charter of Fundamental Rights and the uncertain future of the European Convention on Human Rights, outlined in the draft political declaration.
Under the 2018 EU (Withdrawal) Act, ministers have been given unprecedented powers to amend or repeal any law they think appropriate to the Brexit process, with limited parliamentary oversight. Whilst the act states that the 1998 Human Rights Act cannot be amended with these powers, ministers can amend other important acts which guarantee essential rights, including the 2010 Equality Act, the 2015 Consumer Rights Act and the 2018 Data Protection Act. All these acts originated from EU membership.
EU Membership has also enhanced women’s rights by prohibiting sex discrimination, providing maternity rights and the right to equal pay for equal work. It has simultaneously guaranteed the direct enforceability of these rights and the right to complain to the EU Commission for non-compliance by member states. Although trades unions have campaigned hard for labour rights and have supported many important employment law cases, it is unlikely they will be able to resist the erosion of workers’ rights in the future – particularly when their own powers have already been limited by domestic legislation.
In effect, these rights will continue to apply until it becomes politically expedient for them not to, for example, as a condition of any future trade agreement. When re-negotiating trade deals with over 65 countries, the UK government may try to balance a weaker negotiating position with a lowering of consumer and labour standards. It would be able to reduce or remove maternity rights, parental leave, working time and agency worker rights, in order to to create a cheaper workforce to be more competitive on the international market. The UK’s workforce is already in a precarious position with, for instance, little protection for workers on zero-hours contracts, and the situation could only worsen.
Of course, all the rights contained in the EU Charter will be lost unless they are mirrored in other sources like the ECHR. Even where these EU Charter rights are recognised elsewhere, they are vulnerable where they are considered to obstruct matters of national security and immigration policy. For example, the 2018 Data Protection Act introduced an exception to the right of access to personal data, by removing that right from any person subject to immigration proceedings. This exception was not included in the General Data Protection Regulation which the Act incorporated and is likely to be contrary to EU law. As a consequence, those applying for a visa for themselves or their families, anyone subject to a deportation order, or even the 3.6 million EU citizens and their families applying for settled-status, will have no right to access data concerning them. Where there has been an error, or data has been obtained illegally, there will be no right to discover this. This creates an unjust situation where individuals are unable to challenge incorrect or illegally obtained information which is then relied upon when decisions are made concerning them.
In short, leaving the EU on the terms proposed by the government would constitute a deeply retrograde step in the history of individual rights in the UK.
Joelle Grogan, Senior Lecturer in Law at Middlesex University, Creator of StickyTrickyLaw
Bethany Shiner, Lecturer in Law at Middlesex University and Solicitor-Advocate