Up to scratch? A human rights health check of the draft Brexit agreement

Posted by Nadia O'Mara on 16 November 2018

After nearly two years of negotiations, the Government has published the draft withdrawal agreement (WA) between the UK and the EU, along with an outline of the political declaration on the future relationship after Brexit. However, the agreement is far from a done deal. First it has to get the unanimous support of the remaining 27 member states at a special EU summit on 25 November and then has to get through the UK Parliament. No small feat.

As with every big Brexit development so far, the headlines have focussed on the politics of it all – who has jumped ship and how long the Prime Minister can hold on. At Liberty we are concerned about something else – what does the draft agreement and outline for the future relationship do to ensure that Brexit does not erode our fundamental rights and freedoms?

The Good News

A cursory glance at the outline for the future relationship will get any human rights advocate excited. The very first line, under the heading ‘basis for cooperation’ states: “Shared values including the respect for human rights and fundamental freedoms…as essential prerequisites for the future relationship”. The paragraph goes on to “reaffirm” the UK’s commitment to the European Convention on Human Rights (ECHR).

On data protection, the outline asserts a shared commitment to a “high level of personal data protection”. This section goes on to pledge a review of the UK’s data rights by 2020, using the EU’s ‘adequacy framework’ (the model used by the EU to assess whether a non-EU state has sufficient rights protections and safeguards in place for the bloc to transfer data to it).

The ECHR and data protection come up again in the section on future policing and security partnership. Any future cooperation will be “underpinned by long-standing commitments to the fundamental rights of individuals, including continued adherence to the ECHR and its system of enforcement, and adequate protection of personal data”.

The Less-Good News

All this sounds great right? Well yes it is, but there is a catch. The outline for the future relationship is not legally binding. It is a political declaration which will be subject to change after the withdrawal agreement is signed and ratified (the process of formalising an international treaty).

There is however a formal ‘link’ between the withdrawal agreement and the accompanying political declaration. Article 184 of the withdrawal agreement ensures that the UK and EU will “in good faith” take the necessary steps to negotiate “expeditiously” the agreement for their future relationships in accordance with the political declaration. But both parties can still shift their red lines and that means the human rights commitments described above are not guaranteed.

Turning to the withdrawal agreement, this is the ‘deal’ itself and if agreed by both sides will become legally binding.

Unfortunately, the deal contains far less for human rights advocates to celebrate. The ECHR doesn’t get a mention. Instead, the withdrawal agreement contains a decidedly vague ‘non-regression clause’ on labour and social standards (a non-regression clause is a commitment from both sides not to drop below common standards on a given issue).

Disappointingly, the process for resolving disputes arising from the withdrawal agreement expressly does not apply to the non-regression clause. As a result, enforcement of the article will be difficult and the commitment to common standards likely won’t mean much in practice. 

So what next?

If the withdrawal agreement receives the approval of both the EU leaders and the UK Parliament, then that agreement will govern the process through which the UK exits the EU on 29 March 2019. If you like, the agreement is the skeleton for the relationship between the UK and the EU once the UK leaves.

But it doesn’t have much flesh on its bones. That flesh will come from further agreements on specific areas – for example, trade, transfers of data, policing and security cooperation etc. This is where the political declaration discussed above comes in – particularly from a human rights perspective.

It is welcome that the UK and EU have expressed their commitment to human rights principles as the basis of any future cooperation. However, it is essential that words are turned into action. What we have seen over the past two years is unwillingness on the part of the UK Government to engage with Parliament and others over the negotiations. This must not continue for any future agreements.

It is essential that Parliament is engaged by Government throughout the process, and that Parliament insists on human rights protections featuring front and centre of any future agreements between the UK and the EU. The same insistence must come from the EU side.

At Liberty, we will continue to work hard to ensure that Brexit doesn’t mean fewer rights now or into the future.

Nadia O'Mara Liberty

Nadia O'Mara

Advocacy and Policy Officer