Statement of Bulgarian Network for Human Rights Education on Brexit`s impact on human rights

In the morning of June 24th 2016, the reality of Brexit, the UK exit from the European Union, has surprised and saddened us, just like most of the human rights activists in Europe. We, in Bulgarian Network for Human Rights Education, have been working for nearly a decade in a number of European partnership involving British human rights exerts and civil society, learning for each other and striving to build a pan-European culture of human rights. Brexit raises a number of concerns, not only for the British contribution in the European cooperation for human rights protection, but also for the Brexit-induced changes in the human rights legislation in the UK.

While Britain is still an EU member, human rights in the UK are protected by three main regimes, which work in parallel: the common law; the Human Rights Act (HRA), which incorporates the protections provided by the European Convention on Human Rights (ECHR); and the human rights protections derived from EU law, which are mainly reflected in the EU Charter of Fundamental Rights (CFR).

It comes as a relief that Brexit will generally not affect the common law, the HRA and the ECHR, due to the domestic basis of the common law, the HRA being a domestic statute and the ECHR being agreed by the 47-nation Council of Europe (which has no relation to the EU and therefore - to Brexit).

However, unless an agreement is negotiated to the contrary, Brexit would rather mean that the EU-based human rights protection instruments will cease to apply in the UK, having the HRA and the application of the ECHR in the UK impacted by a move to a British ‘bill of rights’. The scope and timetable of this development are unclear at this stage and will depend on the nature of the post-Brexit UK/EU relationship.

There is a wide range of possible outcomes, with the ‘Norwegian option’ and the ‘World Trade Organization (WTO) option’ being most discussed opposite ends of the spectrum of existing models for an alternative relationship of the UK with the EU. And while under the “Norwegian option”, the UK would join the European Free Trade Association and remain a member of the European Economic Area, under the WTO option, the UK would rely solely on rights and obligations under WTO rules.

Although the ECHR and human rights protection in British common law will continue to apply under both the Norwegian and WTO options, the CFR won’t apply under either option. We share the concern that the Brexit will affect human rights in Britain. This would happen in two ways: a narrower range of protected rights and a reduced protection of human rights.

Currently protected human rights in the UK will suffer a narrower range of protection, because while the CFR includes many wider social and economic rights, such as the rights to fair and just working conditions, to health care and to have personal data protected, these rights are not found, or only found to a more limited extent, in the remaining after Brexit legal human right instruments.

On the other hand, Britain will have to face a reduced protection of human rights by way of judicial review challenges to primary legislation. Up to now, if primary legislation would be found to be contrary to human rights, it was possible to strike down that legislation if it is within the ‘material scope’ of EU law; and it is found to be contrary to EU law, which includes the protections of the CFR. Under the current EU regulations, British citizens could challenge an Act of Parliament if it is incompatible with EU fundamental rights. Brexit will probably remove this avenue as under the common law, judges may not strike down legislation; and under the HRA, judges are only allowed to issue a ‘declaration of incompatibility’ in relation to primary legislation.

In Bulgarian Network for Human Rights Education we are seriously concerned about the weakening of the human rights regime in the UK, triggered by Brexit. We hope for a wise negotiation for a special agreement of Britain with the EU, providing that the EU-based human rights protection instruments will not cease to apply in the UK.

​We are looking forward to continue the great cooperation on human rights protection with our British friends and colleagues, working together for human rights and democracy in Europe.