Is the Government in danger of cherry picking its own Brexit bill?
The EU Withdrawal Bill, the landmark Brexit legislation that aims to transpose EU law into UK law for the sake of legal certainty has been subject to fierce criticism in many areas, from its failure to protect devolution to the ways in which it undermines human rights.
One of the biggest concerns for civil society groups has been the Government’s decision to exclude the EU Charter of Fundamental Rights in the bill- despite claiming that the bill is simply a ‘copy-and-paste’ job. Indeed, the explanatory note to the bill states that “The Bill does not aim to make major changes to policy”
The Charter includes rights that do not have equivalence in UK law, such as disability rights and rights of the child for instance. The Government has given two completely incompatible answers on why the Charter has been left out: 1) it’s unnecessary to keep the Charter as the rights contained within it are recognised rights already present in other EU law that is being transposed, 2) the Charter does add an extra layer of rights that is unacceptable. Whichever of those two answers it may be, the point remains the same- why has the Government decided to ditch fundamental rights when they promised this bill was not about making major policy choices?
As the bill has made its way through Parliament, there have been strong objections to Government’s exclusion of the Charter both from MPs and peers across party lines. It’s significant that this week, the House of Lords voted to keep the Charter in the bill, but as the Commons can later reject this vote, uncertainty about fundamental rights still looms.
What makes the Government’s decision to leave the Charter out even more questionable is their recent decision to transpose EU state aid rules in the bill. This came in response to the concerns voiced by the EU Internal Market Sub-Committee in a report about what competition rules will apply after Brexit. The Government responded by saying that “EU State aid rules will be transposed under the European Union (Withdrawal) Bill – as is the case for EU rules more broadly under this Bill”.
In contrast, the Government has taken a significantly different approach to concerns voiced by various parliamentary committees and civil society groups about the loss of the Charter and the rights contained within in. The Joint Committee on Human Rights concluded in their report on the Withdrawal Bill that the exclusion of the Charter would likely undermine the protection of rights. The Government has yet to respond to these concerns- which goes a long way to demonstrate where their priorities are.
Now, whatever you think about state aid rules or the EU Charter, the wider point is that the Government are indeed choosing as they please what areas of EU law should be transposed to our statute book and that grossly contradicts their own promise: this bill is not about making major policy changes but about taking a snapshot of EU law as it were before exit day and transferring it to UK law. Why then are fundamental rights which citizens enjoy and depend upon excluded but not market competition rules? Why has the Government repeatedly refused to include the Charter in the Bill despite numerous organisations and lawyers warning against it? What is the intention of excluding one aspect of EU law but including another in the Withdrawal Bill? These are questions the Government needs to answer.