On 23 April 2018 the government suffered a further set of defeats at the hands of the House of Lords in relation to the European Union (Withdrawal) Bill (EUWB). We have previously explained how the EUWB works, why it is needed and some of the issues to which it gives rise.

The EUWB will repeal the European Communities Act 1972, through which most EU law currently takes effect in the UK. However, it will take a snapshot of that EU law as it stands on 29 March 2019 and, with some important omissions, will incorporate it into the UK's domestic legal framework as a new category of UK law - 'retained EU law'.

The most controversial of those omissions is the European Charter of Fundamental Rights (the Charter) which was specifically excluded from retained EU law by clause 5(4) of the EUWB. On Monday, The Lords voted to remove clause 5(4) so that the Charter (absent some provisions that will no longer be relevant) will become part of the UK's domestic legal framework after Brexit.

In this article we explain what the Charter is and explore the debate around its retention.

What is the Charter?

The Charter was concluded in 2000 following recognition that the EU law protecting fundamental rights was scattered throughout numerous legislative provisions and judicial decisions. The Charter was intended to consolidate those already existing EU rights - together with those found in various other sources - into a single easily accessible document.

It therefore contains a list of civil, political, social and economic rights and principles derived from the various international obligations to which EU member states have signed up - such as the European Convention on Human Rights (ECHR) and various UN and International Labour Organisation (ILO) human rights treaties - as well as Social Charters adopted by the EU, and case law of the Court of Justice of the EU and the European Court of Human Rights.

In 2009, the Charter was given legal effect through Article 6(1) of the Treaty on European Union (part of the Treaty of Lisbon). Article 6(1) confers on the Charter the same legal effect as the EU treaties. This means that it can be directly relied on in UK Courts without the need for implementing legislation.

However, the application of the Charter is subject to certain limitations. Under Article 51(1) of the Charter, the rights it contains apply only when a member state or EU institution is implementing EU law. Nor can the Charter be used to extend the field of application of EU law (Article 51(2)). In other words, the Charter only applies to what is there already in EU law, and only when a member state or EU institution is applying that law.

During the negotiations around the Lisbon Treaty, the UK Government secured a specific Protocol clarifying the application of the Charter to the UK. This stated that neither the UK courts nor the European Court of Justice could declare UK law incompatible with the Charter. This was trumpeted as effectively an 'opt-out' from the Charter by the then Labour government which was concerned by its potential to expand social and (somewhat ironically) labour rights in the UK.

That the Protocol was essentially worthless was confirmed in 2013 first by the Court of Justice of the EU (CJEU) in R (NS) v Secretary of State for the Home Department and then at a domestic level in R (AB) v Secretary of State for the Home Department.

It has been applied by UK Courts ever since and provides the only ground on which a UK court can disapply an Act of Parliament on the basis that it does not accord with human rights principles.

Why does the government not want to keep it?

The Charter has remained a bone of contention for successive UK governments, not least for former Lord Chancellor Chris Graying who vowed to challenge its application in the UK. He did so in a case which had precisely the opposite effect as it resulted in the Supreme Court using the Charter to disapply the State Immunity Act 1978 so as to allow a Sudanese embassy worker access to the Employment Tribunal (Benkharbouche v Embassy of the Republic of Sudan).

Despite the Secretary of State for Leaving the EU having himself relied on the Charter in legal proceedings, it was therefore of little surprise when the EUWB provided for the specific exclusion of the Charter from the basket of EU law to be directly incorporated into the UK's legal framework.

The reason given by the government in the explanatory notes accompanying the Bill is that the Charter did not seek to create new rights but sought merely to codify rights and principles that were scattered throughout the body of EU law. The notes state that by converting the rest of EU law into UK law, those rights and principles will also be converted, meaning that no rights will be removed despite the fact that the Charter will not be incorporated.

This view was challenged during the passage of the Bill through the Commons by former Attorney General Dominic Grieve who brought forward an amendment which would have retained the Charter.

However, he did not push the amendment to a vote on the basis of the government's promise to publish its analysis of where the rights found in the Charter will be contained elsewhere in retained EU law.

The argument that there is no need to retain the Charter, and that no rights will be lost without it, was repeated in Monday's debate in the House of Lords, together with the valid point that the UK had never intended to adopt the Charter in the first place, even as a member of the EU.

Other arguments in the Lords centred on the sometimes vague wording of the Charter's provisions, which lead to a risk of expansive judicial interpretation, coupled with the danger that it would continue to allow judges to overturn primary legislation enacted by Parliament. However, the most colourful metaphor was deployed by cross-bench peer Baroness Beech who described the retention of the Charter as 'a Trojan House with a tapeworm in its intestines' on the basis that its interpretation would depend on 'the ongoing, never-ending, twisting and turning judgments' of the EU courts.

What are the arguments for retention?

The government's main argument is that no rights will be lost as the Charter merely reflects rights that will be found elsewhere in retained EU law.

As a matter of simple logic, that position begs the question as to what possible objection there could be to the Charter's retention on the basis that it will not substantially alter the legal landscape.

However, the government's position is not strictly correct for two reasons.

First, as Jason Coppel KC outlines in the legal opinion he provided to the Equalities and Human Rights Commission, the Charter - as a living instrument - has created new rights and extended the scope of existing rights. The clearest recent example of this is the extension of rights in relation to private life and data protection in a newly recognised 'right to be forgotten' (Google Spain SL & another v Agencia Espanola de Proteccion de Datos (AEPD) and another).

The Charter therefore provides a dynamic source of rights protection rather than merely preserving in amber rights which existed at the time of its drafting. Although without the Charter we might retain a static body of rights from other EU sources, we would lose one mechanism through which those rights can evolve to deal with new circumstances and issues.

Second, under the EUWB as originally laid before Parliament, it is arguably not the case that UK citizens would be able to bring challenges based on rights found elsewhere in retained EU law. This is because the fundamental rights codified in the Charter are principles of EU law and, under paragraph 3(1) of Schedule 1 to the EUWB, there will no longer be a right of action in the UK based on a failure to comply with any principles of EU law. The Lords also voted to remove this preclusion.

There is also a practical reason for the retention of the Charter. Even if one rejects the view of the Charter as a living instrument - and many of its opponents dislike it for exactly that reason - to the extent that it merely consolidates rights found elsewhere, the Charter radically simplifies the protection of those rights. Without it, as Lord Pannick argued in the Lords' debate, UK judges would be asked to infer rights from one set of EU legislation and case law and then to use those rights to interpret other provisions of retained EU law. His suggestion was that, although it would be very good for lawyers, such a position would not promote legal certainty.

Drawing these threads together, the stated aim of the EUWB is to preserve, as closely as possible, the legal position as it pertains at the point of Brexit. Excluding the Charter from retained EU law would frustrate that purpose and create legal confusion by removing an important existing source of rights protection.

However, it is important to point out that even if the Charter is retained it will apply only to retained EU law. Claimants will not be able to rely on it with respect to UK laws passed after Brexit in areas which would formerly have been areas of EU competence to which the Charter would have applied.

What happens next?

The EUWB will be debated for several more days in the House of Lords. It will then return to the House of Commons for MPs to consider the Lords' amendments. The exclusion of the Charter is one of the most controversial aspects of the Bill, with respect to which the government has already had a turbulent time in the Commons. It will be interesting to see whether the government's right-by-right analysis will prove sufficient to placate MPs pushing for the retention of the Charter, or whether the criticism which has been levelled at that analysis - together with the additional arguments for retention made in the Lords - will embolden them to support the Lords' amendment.

The situation is complicated by the fact that under the European Union (Legal Continuity) (Scotland) Bill, the Charter would form part of retained EU law in Scotland (it seems that the government has now avoided a similar situation with respect to Wales). The Scottish Bill has been referred to the Supreme Court for a ruling on whether it is within the legislative competence of the Scottish Parliament. If the Supreme Court upholds the Bill, but MPs overturn the Lords' amendment to retain the Charter under the EUWB, the Charter will apply in Scotland but not elsewhere in the UK.

This would result in significant legal uncertainty after Brexit. However, this may be avoided if, reading the mood of the Commons, the government softens its position on the Charter given that it faces potentially bigger worries in the form of the Lords' amendment calling for a customs union with the EU.