Filip Vrabel




 

Brexit has been a deeply contentious political issue. The aim of this article is not to engage with the debate in any sort of party-political manner, but rather look at the sort of legal questions raised in the sphere of human rights emanating from UK law no longer being politically bound to EU law. Even with such a limitation, the discussion will certainly not be comprehensive, but rather only indicative.

It is necessary to state at the outset that the United Kingdom is a dualist system, meaning that domestic and international operate as two distinct legal spheres. There are some monist systems, such as the Netherlands, where international obligations must be taken into account by domestic courts. However, no such duty is placed on British courts. The issue has been raised in 1906 when an Act of Parliament declared fishing in some areas in the north of Scotland illegal, despite overlap with international waters.[1] A submission to the court was made to the effect that international law would certainly outlaw such action to be taken by any country – and was rightly rejected as inconsistent with the UK’s constitutional law. There have been subsequent cases such as Cheney v Conn[2], which have reaffirmed this position, and it is a surety of today’s post-Brexit environment that international law does not impact domestic law, except perhaps in an interpretative or inspirational context. 

This does not mean that European law was as such wholly ineffective in the UK. The European Communities Act 1972 served as the principal instrument to bring the laws of the EU into the domestic legal order, so as to take some of those international obligations of the separate international legal plane and place them inside the domestic one. More than twenty years later it was followed by the Human Rights Act 1998, which focused on breaches of the European Convention on Human Rights (ECHR). One of the many provisions assuring that goal was section 3, which created a strong interpretative duty on UK courts to take Convention rights into account – that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.[3] Besides the Convention, EU’s contemporary legal order defends human rights in two other ways – the Charter of Fundamental Rights and the general principles, which have developed from the case law of the European Court of Justice (ECJ). It is then clear that some sort of stronger and more precise protection of human rights was afforded by the legal reality during the pre-Brexit years. However, it is also clear that at the same time this had never been a particularly strong protection. The position of the UK’s constitutional law is that Parliament is supreme and could unmake any law – even one concerning international obligations as seen above. While the courts may have at some point admitted the special status of the EU legal order in particular (such as in the Factortame case)[4], it is difficult to see even EU obligations surviving an Act of Parliament expressly repealing them. Our first point then must be that being part of the EU legal order has not provided a particular strong protection to human rights in the UK, due to its constitutional structure.

 The second, and perhaps more important, question is which rights in particular did EU law protect. A full answer cannot be provided in an article of this scope, but a few examples might illustrate that rights were indeed provided and that their equivalents had not been present in British law beforehand. Some of the areas which were substantially aided were: the right to privacy, the right to respect for the home and protecting rights from contractual diminishment. 

Barbulescu v Romania strengthened the right to privacy in the workplace.[5] Although this case was decided after the 2016 referendum, it was during a time of transition during which EU law was still applicable. To briefly state the facts of the case, an employer sought to completely prevent personal communications using firm equipment, but one employee, Mr Barbulescu, contravened the policy and this breach was discovered by the employer going over his private communications. Barbulescu brought the issue to the ECJ as a breach of the ECHR (specifically Article 8) and, on appeal, the Court agreed with him. It was decided that “an employer’s instructions cannot reduce private social life in the workplace to zero” since “[r]espect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary”.[6] The decision does not mean that employers cannot monitor these activities, but it still provides a very important rule, namely “that States should ensure that, when an employer takes measures to monitor employees’ communications, these measures are accompanied by adequate and sufficient safeguards against abuse”.[7] That protection against abuse illustrates the sort of aid that European law provided to this right in the UK.

Another interesting case is Kušionová.[8] There, the claimant took out a loan and provided her own home as security, which might appear rather usual, although in this case the enforcement could be carried out without judicial review. The ECJ strongly reaffirmed the right to a home, stating that “[u]nder EU law, the right to accommodation is a fundamental right guaranteed under Article 7 of the Charter”.[9] Secondly, it has looked at its own history of interpretation and concluded that “the European Court of Human Rights has held, first, that the loss of a home is one of the most serious breaches of the right to respect for the home and, secondly, that any person who risks being the victim of such a breach should be able to have the proportionality of such a measure reviewed”.[10] In other words, a public entity or even a private party would have to think twice before trying to implement a measure which sought to deprive someone of their right to accommodation. As seen, European law accords that right very high regard.

The last example to look at would be Morcillo and Garcia v Banco Bilbao Vizcaya Argentaraia SA.[11] This was a case of some importance as it addressed “the fundamental question of whether national procedural law governing mortgage enforcement proceedings ensures the effective judicial review of unfair terms in consumer contracts”.[12] It was decided that Spanish law did not manage to do so, but in fact reinforced the inequality of the relationship between a bank and customer. Although the United Kingdom possesses its own Consumer Rights Act 2015, which is also aimed against unfair terms in consumer contracts, it is worth noting the additional layer of protection which European law had purported to create.

As seen in the illustrative examples above, EU law created and strengthened substantial human rights. Arguably, after Brexit, the United Kingdom is free, both politically and legally (although, taking into account the UK’s constitution, Parliament has always been legally free to do anything) to renounce these important protections. It remains to be seen whether lawmakers will choose to adopt a favourable legislative attitude towards human rights issues, or whether these will be defined more narrowly as before. In either case, European law has to be acknowledged as an important historical source of the development of human rights law in the legal order of the United Kingdom, despite (or perhaps due to) the doctrine of Parliamentary supremacy. With one political check removed, it is then possible to conclude that the status of human rights in the UK could be adversely affected, although legally it had never been afforded a particular strong protection in the first place.

Table of Cases

Mortensen v Peters (1906) 8 F (J) 93

Cheney v Conn [1968] 1 All ER 779

Kušionová v SMART Capital a.s. (2014) Case C-34/13

Barbulescu v Romania [2017] ECHR 754

R v Transport Secretary, ex parte Factortame (No 2) [1990] 2 AC 85

Morcillo and Garcia v Banco Bilbao Vizcaya Argentaraia SA (2014) C-169/14

Bibliography

“Q & A Grand Chamber Judgment in the Case of Bărbulescu v. Romania (Application No. 61496/08)” <https://www.echr.coe.int/documents/press_q_a_barbulescu_eng.pdf> accessed January 30, 2023 

Negra FD, “The Uncertain Development of the Case Law on Consumer Protection in Mortgage Enforcement Proceedings” (2015) 52 Common Market Law Review 1009 

[1] Mortensen v Peters (1906) 8 F (J) 93

[2] [1968] 1 All ER 779

[3] Human Rights Act 1998, s.3

[4] R v Transport Secretary, ex parte Factortame (No 2) [1990] 2 AC 85

[5] [2017] ECHR 754

[6] Ibid. [80]

[7] (Press Unit, Q & A Grand Chamber judgment in the case of Bărbulescu v. Romania (application no. 61496/08) 2017)

[8] Kušionová v SMART Capital a.s. (2014) Case C-34/13

[9] Ibid. [65]

[10] Ibid. [64]

[11] (2014) C-169/14

[12] (Negra, The uncertain development of the case law on consumer protection in mortgage enforcement proceedings 2015 1010)