The European Union (Withdrawal) Bill House of Commons 

Committee Day 3 Tuesday 21st November 2017
Charter of Fundamental Rights

In Support of Amendment 8 to Clause 5 and Amendment 10
to Schedule 1 and New Clause 76 to ensure Charter rights are protected

Briefing from Together (Scottish Alliance for Children's Rights) and the Children's Rights Alliance for England

Background

The Charter of Fundamental Rights (the Charter) sets out in a single document the fundamental rights protected in the EU. It brings together the rights found in the EU Court of Justice case law, the European Convention on Human Rights (ECHR) together with other rights and principles arising from the  constitutional traditions of EU Member States and their participation in other international human rights treaties. The Charter is binding on EU institutions and on Member States when they are acting “within the scope of EU law” (1). Where domestic law conflicts with a Charter right, domestic judges are under a duty to “disapply” the national legislation in that particular case if it cannot be interpreted in a manner consistent with the Charter.

How does the Charter of Fundamental Rights promote and protect children’s rights?

The Charter supports children and young people’s rights in a number of ways: It enhances rights that already exist in the ECHR such as the right to education (2). It also condenses rights enshrined in the UN Convention on the Rights of the Child (UNCRC) within one article (3). These include the right to care and protection, to express views freely, in accordance with their age and maturity, the principle of best interests being a primary consideration and the right to know both parents (4). Children’s rights enshrined into the Charter have been translated into practice through EU legislation, policy and case law (5). This has included areas as diverse as legislation on child-friendly justice systems (6) and ensuring the best interests of unaccompanied asylum seeking children (7), through to policies designed to tackle high youth unemployment rates (8) and child obesity (9).

Removal of the Charter by the European Union (Withdrawal) Bill

Whilst the general approach of the Withdrawal Bill is to incorporate EU law into UK law, the Bill provides that the Charter will not be retained (10). The UK Government’s position is that the rights in the Charter are found elsewhere within the body of EU law which will be incorporated. These rights and principles which exist “irrespective of the Charter” shall form part of retained EU law (11). However, the effect of such retention is limited as the Bill provides that there shall be no right of action in domestic law on or after exit day based on a failure to comply with any ofthe general principles of EU law (12). Effectively, the rights which exist “irrespective of the Charter” shall therefore only be a tool for interpreting retained EU law, but they will be unenforceable in UK courts.

How would the removal of the Charter affect individual rights?

The White Paper which preceded the Bill stated that the rights in the Charter and General Principles were also found in domestic law and other international treaties which the UK has ratified. Therefore, the UK Government’s position is that the Charter can be removed without the rights of individuals being affected. This position can be challenged on the following grounds:-

The Charter includes rights not found in other international treaties
As well as being a consolidation exercise, the creation of the Charter was intended to take account of changes in society which had occurred since the creation of older human rights treaties, such as the ECHR, which nonetheless include important rights for children. Accordingly, the Charter contains certain rights of great importance to children and young people which are not found in other international treaties which the UK is party to nor are they protected in domestic law at constitutional level (13). Additional rights under the Charter include a specific provision on the rights of the child and a stand-alone right not to be discriminated (14). There are other “novel” Charter rights which may fall within the scope of broader provisions in other international treaties. However, the specificity of the Charter expression of these rights gives additional clarity. Examples here include a right to physical and mental integrity, a guarantee of human dignity and a prohibition on human trafficking.

Broader scope of certain Charter rights also found in other treaties
In cases where certain rights are expressed in both the Charter and other international instruments, the scope of the Charter-based right is often broader. For example, whilst the right to a fair trial under Article 6 ECHR is limited to civil and criminal proceedings, Article 47 of the Charter is not. Accordingly, the Charter’s protection is also available in administrative cases, such as immigration decisions (15). Other examples of the broader scope of particular rights can be found in the areas of data protection and migration law.

The UK has not fully incorporated certain UN human rights treaties
The UK Government is correct in stating that certain Charter rights are also contained in UN treaties which the UK has ratified. However, as no action has been taken to incorporate these treaties, including the UN Convention on the Rights of the Child, the rights they contain do not have direct effect in domestic law.

Concerns

The UK Government has stated that the Withdrawal Bill is not intended to affect the rights of individuals in the UK and that the rights in the Charter are already protected elsewhere, for example in the UNCRC. However, the UK Government has neither identified these rights nor where they are protected and made no specific reference to children’s human rights. Crucially, it is noted that the UK Government has made no pledge to preserve the sources of these rights after Brexit, a matter particularly relevant in relation to those rights protected through the Human Rights Act (16).

For further information, please contact:

Juliet Harris, Director, Together (Scottish Alliance for Children's Rights), Tel: 0131 337 9015 Email: [email protected]

Louise King, Director, Children’s Rights Alliance for England, Tel: 0203 1742279 Email:
[email protected]. 

This briefing has been supported by:

• Coram Children's Legal Centre
• Children England
• Wales Observatory (Children's Rights)
• Children in Scotland
• Children in Wales
• University of Liverpool

1 CFR Article 51: Scope of Charter
2 CFR Article 14: Right to Education
3 CFR Article 24: Rights of the Child.
4 These can be aligned with UNCRC Article 3 (best interests), Article 5 (the evolving capacities of the child), Article 6 (survival and development), Article 7 (to know and be cared for by both parents), Article 12 (to express views freely and have them taken into account).
5 Eurochild (2014) Applying the EU Charter of Fundamental Rights to children’s rights in the EU
6 Proposal for a Directive of the European Parliament and of the Council on procedural safeguards for children suspected or accused in criminal proceedings, 2013/0408 (COD). Directive establishing minimum standards on the rights, support and protection of victims of crime, and on-going FRA research on forms of child participation in criminal and civil judicial proceedings, 2012/29/EU
7 COM (2014) 382 final
8 EU Work Plan for Youth (2014 –2015)
9 EU Action Plan on Childhood Obesity 2014-2020, 24 February 2014.
10 EU(W)B Clause 5(4)
11 EU(W)B Clause 5(5)
12 EU(W)B Schedule 1 para 3 (no right of action in relation to breach of “general principles of EU law”)
13 Contrast those rights which are included in the ECHR, which are given constitutional protection at UK domestic
level through the Human Rights Act 1998.
14 Contrast the right to non-discrimination under the Article 14 ECHR which is “parasitic” upon another ECHR right
being engaged. Whilst the ECHR does have a stand-alone right to non-discrimination under Protocol 12, the UK has
not ratified this, the UK Government having considered that to ratify it would make its “potential application…too
wide” see UK Parliament, "Joint Committee on Human Rights: Seventeenth Report" (23 March 2005)
15 AZ [2017] EWCA Civ 35
16 See concerns raised by Liberty & Amnesty (October 2017)