Brexit and human rights

McCorkindale, Christopher (2018) Brexit and human rights. Edinburgh Law Review, 22 (1). pp. 126-132. ISSN 1364-9809

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    Abstract

    Rights protection in the UK is multi-faceted and multi-layered. Multi-faceted because our rights derive from several sources: from the European Convention on Human Rights (the ECHR or the Convention); from the general principles of EU law or from its Charter of Fundamental Rights (the EU Charter), as well as from the common law. These sources overlap in various ways: the rights protected by the EU Charter draw heavily from the Convention rights, and the latter, arguably, reflect protections already found in the common law. However, there are also significant points of divergence: what registers as a common law right depends upon the cases that come before the courts (so, common law rights are well developed in relation to access to justice and procedural fairness, but less so in other areas), whilst the Charter is simultaneously less expansive than the Convention in its scope (being applicable only to action taken in the sphere of EU law), yet more expansive than the Convention in its coverage (with greater protections for certain social, economic and equality rights as well as for so called “third generation” rights such as those relating to data protection, bio-ethics and good administration). Multi-layered because the level and scope of rights protection varies significantly according to the distribution of power across the UK’s territorial constitution. Action taken at the level of the EU might engage and be limited by the general principles or by Charter rights; UK-level action might engage and be limited by the Charter rights (where that action takes place within the sphere of EU law), the Convention rights (given domestic effect by the Human Rights Act 1998 (HRA)) or common law rights; action by the devolved institutions might engage Charter rights and/or Convention rights directly by their incorporation into the devolution statutes, as well as the Convention rights by virtue too of the HRA, or common law rights.