This week, as Parliament once again debates the EU (Withdrawal) Bill – more commonly known as the Repeal Bill – one of the fiercest battle lines will be the future of the Charter of Fundamental Rights.
The Government is determined to leave the Charter behind in Brussels. But a growing number of Conservative backbenchers – backed by Labour, the Liberal Democrats and the SNP – have urged the Government not to turn the Repeal Bill into a referendum on human rights.
Even Charter sceptics have reason to question the decision to drag it into the debate over the Repeal Bill.
The Bill’s authors characterise it as a copy-and-paste exercise designed to provide legal continuity after Brexit. David Davis described it as ensuring that “the same rules and laws will apply the day after exit as before”. The Charter, of course, is one of those laws – yet the Government has marked it out as the only one it will not bring home.
The Repeal Bill was not drafted as the vehicle for deciding which EU laws we should keep and which we should dump. It “does not aim to make major changes to policy,” Davis writes.
The broad legislative power devolved to ministers under the Bill is meant only to preserve the snapshot of EU law on exit day, with minor adjustments to correct various technical deficiencies arising from withdrawal, he insists.
Primary legislation to make policy changes, alongside the usual parliamentary scrutiny, will follow the Bill in due course, we are promised.
But removing the Charter is a significant change in policy.
Davis suggests that the Charter was only ever meant to apply to EU member states, saying leaving it behind “is the natural consequence of the decision to leave the EU”. But, whether they voted leave or remain, the public did not vote to give up their rights.
Some believe that scrapping the Charter will not matter, claiming it does not protect any rights not already covered by some other law. This is demonstrably false. Courts have noted that the Charter “clearly goes further, is more specific, and has no counterpart” when it comes to protecting privacy.
Davis himself used the Charter to challenge the UK’s surveillance laws.
A few weeks ago, the Charter provided people employed at London-based embassies critical protection against workplace discrimination and abuse.
The Charter has been used to fight discriminatory insurance rules, to require public explanations for decisions that sacrifice individual rights in the name of national security, and to establish the 'right to be forgotten' among other things.
Keeping the Charter means keeping our ability to enforce it in exactly the way it can be enforced now, only with the UK Supreme Court taking over from the European Court of Justice as its interpreter.
Even Mr Justice Mostyn, who is no fan of the Charter, conceded its value, saying: “[t]he Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights... The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more.”
The Charter has the unique ability to strike down unlawful primary legislation that violates human rights – forcing the Government to act in a way that other laws cannot.
The point is this: even if the notion of the Charter’s continuing viability after Brexit leaves you uneasy, taking it away from everyone in the UK is an important policy decision that should not be shoe-horned into the Repeal Bill.
For lots of people, some of the EU regulations Ministers will cut-and-paste under the Repeal Bill were major reasons they voted to leave. And the future of many of those regulations will be debated in subsequent legislation before Parliament.
As with those regulations, the UK needs a proper debate about the Charter and its relationship to the UK human rights framework. The Repeal Bill is not the place for that debate. Let the Charter stay, alongside all the other EU laws in the Repeal Bill, so the Government can get on with the task of sorting out Brexit.
There is a world of possibilities for post-Brexit Britain. Abandoning the Charter at this stage would start us down a path before we have even settled on our destination.
Martha Spurrier is the Director of Liberty