Menelaos Markakis - Brexit and the EU Charter of Fundamental Rights

In preparation for Brexit, the Government has presented the European Union (Withdrawal) Bill 2017-19 to Parliament. The Bill repeals the European Communities Act 1972 and incorporates existing EU law into domestic law on exit day, subject to a number of exceptions. A notable exception is the EU Charter of Fundamental Rights, which will not be part of domestic law on or after exit day (clause 5(4)). The underlying assumption, as brought out in academic writings and Government publications, is that it would be undesirable and/or unnecessary to retain the Charter in domestic law. But there have not thus far been any studies of its impact in concrete terms in our jurisdiction. This article explores the impact of the EU Charter of Fundamental Rights in the UK. It examines its legal status in the UK and sheds light on its impact, as evidenced through the case law of the Court of Justice of the European Union (CJEU). This article engages in both a quantitative and –to the extent possible– a qualitative analysis of the cases that originated in the United Kingdom, setting out the numbers of cases for each year, grouping them into categories and discussing the seminal cases at some length. On the basis of this analysis, it will be argued that the 'fears' associated with the Charter are to a large extent unfounded. The focus then shifts to the impact that the EU Charter and related CJEU case law are bound to have after exit day, according to the terms of the EU (Withdrawal) Bill. How may the Executive or Courts use the EU Charter after Brexit? The article provides a critical analysis of the relevant provisions in the EU (Withdrawal) Bill, and argues that in a number of cases the Charter will remain significant after exit day. The final section of the paper shows why there would nevertheless be important differences in the UK human rights framework after exit day, by contrasting the EU Charter of Fundamental Rights with the European Convention on Human Rights in terms of the rights enshrined therein and the available remedies.