Brexit and the EU Charter of Fundamental Rights
Public Law , Volume 2019 - Issue January p. 82- 101
The EU Charter of Fundamental Rights will not be kept in domestic law after Brexit. However, there has been little analysis of its impact – both actual and potential – in this jurisdiction. This article explores the impact of the EU Charter in the UK. The key purpose is not to criticise the EU (Withdrawal) Act 2018, nor to address the key arguments against keeping the Charter in domestic law – this is only done insofar as relevant for the purposes of this paper. This article makes three key claims. First, it will be argued that the EU Charter has thus far not been as “dangerous” as it is often suggested. This article engages in both a quantitative and – to the extent possible – a qualitative analysis of the relevant CJEU case law, setting out the numbers of cases for each year and discussing the seminal cases. It will be shown that there has thus far been only a relatively small number of UK cases that have reached the EU courts, and that these cases culminated in fairly uncontroversial rulings. It will be further shown that some of these cases have shaped the EU courts’ Charter jurisprudence more generally. Second, it will be argued that the EU Charter and the related EU courts’ jurisprudence will remain relevant, in legal terms, after Brexit. They may be used by the Executive and Courts, in the manner explained in this article. Third, it will be argued that, notwithstanding the limited saving provisions in the EU (Withdrawal) Act 2018, the UK’s human rights framework would be markedly different without the EU Charter. This would be the case, as explained in the paper, in terms of both the substance and scope of the rights protected, as well as with regard to the available remedies.