Fundamental Rights Are Not A Brexit Bargaining Chip – Human Rights Committee Tells Government

By Natasha Holcroft-Emmess, Associate Editor 19 Dec 2016

Parliament’s Joint Committee on Human Rights (JCHR) reports on the human rights implications of Brexit, asserting that the Government must not use fundamental rights as a ‘bargaining chip’ in its Brexit negotiations.

The JCHR’s report affirms that the process of the UK’s withdrawing from the European Union (EU) will have a significant impact on the laws that protects human rights in the UK. Many fundamental rights are underpinned by EU law (read about them here) and the JCHR says that it is not clear whether the Government intends to remove rights which UK citizens currently have under EU law.

Why is the JCHR concerned?


Secretary of State for International Trade Liam Fox has reportedly stated that EU nationals living in the UK are one of the ‘main cards’ in the Brexit negotiations. The JCHR was ‘surprised’ that the Government ‘saw the question of domestic protection for fundamental rights as a matter for negotiation with the other EU Member States’.

The JCHR says that it is ‘regrettable’ that the Government has ‘not been able to set out any clear vision’ on how it expects Brexit to affect the UK’s human rights framework. The Government has been ‘unacceptably reluctant’ to talk about the issue of human rights after Brexit. The Minister of State for Human Rights was ‘unwilling or unable’ to tell the JCHR what the Government sees as the most significant human rights issue that would arise when the UK leaves the EU.

How does this affect human rights?

One of the most pressing concerns, according to the JCHR’s report, relates to the rights of EU nationals currently living in the UK and of UK nationals living in the EU. Although number of politicians from across the political spectrum have asked for reassurance that these people’s rights will be protected after Brexit, Prime Minister Theresa May has only said that she hopes to guarantee the rights of EU citizens in the UK as long as the rights of UK citizens in the EU are protected.

Under Article 8 of the European Convention on Human Rights, which takes effect in the UK through the Human Rights Act, individuals are entitled to respect for their private and family life and home. The JCHR recommends that the Government urgently address how Brexit will affect these rights.

‘Bargaining chip’


Chair of the JCHR, Harriet Harman, stated:

The Government must not use human rights as a bargaining chip… [T]he Government will continue to have obligations under Article 8 of the European Convention on Human Rights…

In the unlikely and unwelcome event that the Government sought to deport EU nationals there could be the potential for significant, expensive and lengthy litigation leading to considerable legal uncertainty for a prolonged period of time. These cases would have the potential to clog up and overwhelm the court system.

What does the JCHR recommend?


The JCHR advises that the Government set out a detailed list of fundamental rights which are currently protected because of the UK’s membership of the EU and what approach the Government intends to take to those rights.

The JCHR recommends that the Government commit to publishing a draft version of its proposed ‘Great Repeal Bill’ (the piece of legislation which will end the authority of EU law in the UK), so that Parliament has chance to properly consider the Bill and how it will affect people’s rights.

The JCHR also suggests that the Government should not be able to repeal existing fundamental rights by secondary legislation. Making, changing and repealing laws is usually done by Parliament through ‘primary legislation’ (Acts of Parliament). ‘Secondary legislation’ allows the Government to change and repeal laws under powers granted by Parliament. The JCHR says that where people’s rights will be affected, Parliament should be able to debate and vote on any proposed changes.

Read the JCHR report here.

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Featured image © Number 10, used under Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic Licence. Harriet Harman image © University of Salford Press Office, used under Creative Commons Attribution 2.0 Generic Licence. Other images from

About The Author

Natasha Holcroft-Emmess Associate Editor

Natasha studied BA Jurisprudence and the BCL at Oxford University. She qualified as a solicitor at a London law firm before returning to Oxford to undertake an MPhil, researching international human rights law.

Natasha studied BA Jurisprudence and the BCL at Oxford University. She qualified as a solicitor at a London law firm before returning to Oxford to undertake an MPhil, researching international human rights law.