The Human Rights Implications of

Brexit
Sandra Fredman FBA, QC (hon), Rhodes Professor of Law, Oxford University
Alan Bogg, Professor of Labour Law, Oxford University
Alison Young, Professor of Public Law, Oxford University
Meghan Campbell, Weston Junior Research Fellow, Oxford University
Table of Contents

1. Introduction ............................................................................................................................ 3
2. Exeuctive Summary ............................................................................................................... 4
3. EU Law and Social Rights ..................................................................................................... 6
4.Working Time.......................................................................................................................... 8
5. Equality and Non-Discrimination Law .................................................................................. 11
6.The UK's Remaining International Commitments ................................................................ 13
7. Specific Recommendations ................................................................................................ 15

The views expressed in this paper are those of its independent authors.

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1. Introduction

1. The Oxford Human Rights Hub (OxHRH) aims to bring together

academics, practitioners, and policy-makers from across the globe to
advance the understanding and protection of human rights and
equality. Through the vigorous exchange of ideas and resources, we
strive to facilitate a better understanding of human rights principles, to
develop new approaches to policy, and to influence the development of
human rights law and practice.

2. We make this submission under the auspices of the OxHRH. As a

group of University of Oxford legal academics—Professor Sandra
Fredman, Director of the OxHRH and Rhodes Professor of the Laws of
the British Commonwealth and the USA; Professor Alan Bogg,
Professor of Labour Law; Professor Alison Young, Professor of Public
Law and Dr Meghan Campbell, Deputy-Director of the OxHRH and
Weston Junior Research Fellow—we have come together to explain
the legal implications of Brexit to human rights protection in the UK.

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2. Executive Summary

3. A distinctive contribution of the EU has been in the field of social rights,

particularly working time and discrimination law. This is because EU
law has direct effect, both vertical and in some cases, such as equal
pay, also horizontal (i.e. it binds private employers). Without the
protection of EU law, rights are entirely dependent on political will, and
can easily be eroded. Furthermore, any progression in rights is unlikely
in the present political climate. While international law provides relevant
standards, which are binding on the government, the fact that the
government is in breach of its international obligations is often taken
less seriously in political circles than it should be. 1

4. This submission demonstrates the risks to social rights by specific

reference to working time protections and non-discrimination laws. One
of the most remarkable legal and political achievements of European
law has been Directive 93/104/EC (WTD) concerned with the
organization of working time. The removal of the WTD framework may
lead to a significant deterioration in the protection of the worker’s rights,
including the limitation of maximum working hours, to daily and weekly
rest periods and to an annual period of paid leave. EU law has also
played a fundamental role in the right to equality and non-
discrimination in the workplace. In most jurisdictions, the right to
equality is found in a constitutional bill of rights, which underpins
statutory protection and protects against erosion. The absence of a
written constitution in the UK means that such a constitutional

1
See, e.g. the Ministerial Code 2015, section 1.2, which now refers to the ‘overarching duty
on Ministers to comply with the law’ replacing the wording in the earlier code which referred to
the ‘overarching duty on Ministers to comply with the law, including international law and
Treaty obligations’ (emphasis added), in addition to the persistant refusal to modify the law to
remove the blanket ban on prisoner voting and the recent statement of the Prime Minister to
seek to derogate from the ECHR with regard to its application to troops during military
engagements.
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 guarantee is lacking. Instead, anti-discrimination and equality law in the
UK has developed on a statutory basis. EU law has performed a similar
function to a constitutional protection in other countries as well as
propelling positive improvements. Without EU law, the legislature
would be free to repeal any parts of the Equality Act 2010 it wished to.
This lack of constitutional protection is only partly compensated for by
the European Convention on Human Rights (ECHR) as domesticated
under the Human Rights Act 1998 (HRA). In any event, the future of
the HRA is itself uncertain.

5. We make the following recommendations to ensure that the UK

continues to vigorously uphold social rights:
a. Non-regression in relation to the social rights currently protected
by EU law.
b. Increased attention and respect for the UK’s remaining
international commitments.
c. Increased scrutiny by the JCHR.
d. EU law should continue to be a source of inspiration for the
development of UK law.

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3. EU Law and Social Rights

6. EU law has distinct advantages over national and international law

protections of social rights. First, EU law provides a better remedy for
those whose rights have been breached by legislation. The HRA may
be used to interpret legislation in a manner compatible with Convention
2
rights, so far as possible. However, legislation which cannot be
3
interpreted to protect rights may only be declared incompatible.
Ultimately, remedies are dependent upon political intervention to
protect rights. Directly effective EU law, however, overrides national
law and can be used to disapply legislation which contravenes social
rights protected by EU law. 4 It is unlikely that any proposed British Bill
of Rights would empower the UK courts to strike down legislation
contravening human rights. If anything, debate surrounding the
proposed reforms suggest a weakening in the role of courts.

7. Second, directly effective provisions of EU law may impose obligations

on private parties, which is of specific importance when protecting
social rights against private employers. This is not possible through
international law. Although domestic legislation may be enacted which
imposes obligations on private individuals, Brexit means that human
rights protected by EU law can no longer be used to supplement these
obligations when they fall short of the standard of rights found in the
EU. The HRA only binds the State and private bodies carrying out
public functions.

8. Third, the EU Charter’s reference to a wide range of social rights

provides a prompt to the EU Commission to initiate legislation to

2
Human Rights Act 1998, section 3(1).
3
Human Rights Act 1998, section 4.
4
See, e.g., R v Secretary of State for Transport ex parte Factortame (2) [1990] UKHL 13,
[1991] 1 AC 603 and Benkharbouche v Embassy of Sudan [2015] EWCA Civ 33.
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 protect social rights, often through Social Dialogue including trade
unions and employers’ representatives. This impetus towards
continued progress will not be reflected in domestic law. Although the
proposed ‘Great Repeal Bill’ may preserve rights in the short-term, the
impetus appears to be towards deregulation and removal of social
rights.

9. Fourth, although international law provides protections of social rights,

these provisions do not have the same precision and specificity of
European legislation.

10. Fifth, EU law is subject to the oversight of the Court of Justice of the
European Union, whose rulings are binding on the Member States.
Moreover, international law documents designed to protect social rights
have been used as a source of general principles of Community law,
effectively incorporating these provisions into EU law.

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4. Working Time

11. One of the most remarkable legal and political achievements of

European law has been Directive 93/104/EC (WTD) concerned with the
organisation of working time.5 The aim of the Directive is to set down
‘minimum safety and health requirements for the organisation of
working time’. To this end, the Directive specifies minimum rest periods
in the form of daily rest (11 consecutive hours in a 24 hour period), 6
rest breaks during working days longer than 6 hours (duration to be
determined by collective agreements or, failing that, by national
legislation),7 and a weekly rest period (an uninterrupted period of 24
hours in a seven-day period).8 The Directive also posits a maximum
weekly working time of 48 hours, 9 and establishes a right to paid
annual leave of four weeks that may not be replaced by an allowance
in lieu, except on termination.10 Article 31(2) of the EU Charter provides
that ‘Every worker has the right to limitation of maximum working
hours, to daily and weekly rest periods and to an annual period of paid
leave.’ The standards set out in the Directive can be understood as
giving precise content to the general social rights set out in Article
31(2).

12. Prior to the implementation of the WTD, the UK model of working time
regulation relied upon two principal mechanisms. The first mechanism
was the setting of working time standards through sectoral collective
agreements on an industry-wide basis. This, however, excluded
workers who were not organized, particularly women workers. The

5
Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the
organization of working time [1993] OJ L307/18 (‘WTD’).
6
Ibid art 3.
7
ibid art 4.
8
ibid art 5.
9
ibid art 6.
10
ibid art 7.
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 second mechanism was through the common law, and especially the
employer’s implied duty of care in the contract of employment. Where
excessive working hours damages the employee’s physical or
psychological health, an employee can recover damages for the
injuries resulting from the breach. Recovery was subject to strict rules
on reasonable foreseeability in the common law.

13. The removal of the WTD framework will lead to a significant

deterioration in the protection of the worker’s rights, including the
limitation of maximum working hours, to daily and weekly rest periods
and to an annual period of paid leave. Sectoral collective bargaining
has now largely disappeared from the private sector, removing an
essential component of the pre-WTD protections.

14. The worker will then need to rely upon her contract of employment as a
source of protection. Given the inequality of bargaining power between
employers and workers, many workers may be unable to negotiate the
necessary level of protection in their contract that meets the
fundamental rights standard in Article 31 (2). This would be especially
problematic where individuals are engaged in very precarious work,
such as on zero hours’ contracts. The Court of Justice has adopted a
very protective approach in applying the Directive’s rights to workers
engaged in precarious work.11

15. The fallback in very serious cases will be to sue for damages for
breach of the implied duty of care in the contract of employment. This
is undesirable for four reasons. First, it is better to avoid the causing of
physical or psychological injury in the first place by having a system of
effective working time protections that prevent workplace injuries by

11
Case C-173/99 R v Secretary of State for Trade and Industry Ex p BECTU [2001] ECR I–
488.
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 establishing healthy working time practices. Second, litigation is
expensive, especially in the light of increased court and tribunal fees.
This is especially problematic given the legal and medical complexities
in claims for psychological injury at work through the common law.
Third, there are no implied terms in the contract that enumerate the
rights specified as fundamental in Article 31 (2). Finally, the Directive
provides for the flexible implementation of social rights. It preserves
flexibility in implementation for national governments, and it preserves
flexibility for employers and workers in tailoring social rights to
particular workplaces through negotiation.12 Expensive litigation on the
contract of employment is, by contrast, rigid and inflexible.

12
For discussion of the derogations, see Alan Bogg, ‘Working Time Regulation in Europe’, in
Alan Bogg, Cathryn Costello and ACL Davies (eds), Research Handbook on European
Labour Law (Elgar, in press 2016)
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5. Equality and Non-Discrimination

16. In most jurisdictions, the right to equality is found in a constitutional bill

of rights, which underpins statutory protection and protects against
legislative attempts to weaken or repeal them.

17. The absence of a written constitution in the UK means that such a

constitutional guarantee is lacking. Instead, anti-discrimination and
equality law in the UK has developed on a statutory basis culminating
in the Equality Act 2010. Throughout this development, EU law has
played a powerful role in protecting equality rights against erosion and
in pushing forward expansion. For example, it is due to EU law that
there are rights to protection against pregnancy discrimination, 13 to
14
equal pay for work of equal value, and to protection against
discrimination at work on grounds of sexual orientation, religion and
age. 15 Because EU law is binding, courts are required to interpret
statutes consistently with EU law; the legislature is required to enact
appropriate legislation; and, in some contexts, individuals are given
direct rights against their employers.16 EU law has performed a similar
function to a constitutional protection in other countries. Without EU
law, the government would be free to repeal any parts of the Equality
Act 2010 it wished to, subject to Parliamentary approval. We have
already seen significant undermining of non-discrimination rights
through the imposition of tribunal fees, which have deterred very large
numbers of applicants. Even without express repeal, there is a risk of
further undermining through such devices as the increase in

13
C-32/93 Webb v EMO Air Cargo Ltd [1994] IRLR 482 (ECJ)
14
C-61/81 Commission of the European Communities v United Kingdom (1982) ICR 578
(ECJ)
15
Council Directive 2000/78/EC
16
Case 43/75 Defrenne v Sabena [1976] ECR 455 (ECJ)
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 qualification periods and the narrowing of the definition of ‘worker’ for
the purpose of qualifying for protection.

18. This lack of constitutional protection is only partly compensated for by

the ECHR as domesticated under the HRA. Article 14 of the ECHR
requires states to ensure the enjoyment of Convention rights without
discrimination on a range of grounds. The ECHR is wider than EU law
in that it covers a wider list of grounds and applies to all Convention
rights. However, it does not reach into the heartland of EU anti-
discrimination law, namely workers’ rights.

19. This is for three main reasons. First, Article 14 is not a self-standing
right but requires proof that the issue falls within the ambit of a
substantive right. Although the concept of ‘ambit’ has been widely
interpreted, it remains the case that Article 14 is limited to other
Convention rights. 17 There is no express right to work under the
ECHR, and although a recent case against Turkey found that sex
discrimination against a worker could fall within the ambit of Article 8
(respect for private and family life), this is an isolated case and only
appears to apply in the public sector.18 The UK has not ratified Protocol
12 of the Convention, which does give a self-standing right to equality.
Second, the Convention is only binding on the State and not on private
bodies except when performing public functions. This excludes private
employers. EU law, at least so far as is the right to equal pay is
concerned is horizontally directly effective. 19 Third, the remedies are
limited to declarations of incompatibility or interpretation of statutes;
whereas EU law can override domestic law. In any event, the future of
the HRA is itself uncertain.

17
Belgian Linguistics (No 2) (1968) 1 EHRR 252 (European Court of Human Rights)
18
Boyraz v Turkey (2015) IRLR 164 (ECHR)
19
Defrenne (n 16).
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6. The UK’s Remaining International Commitments

20 Protections under international law, although they exist, are less

specific and do not have the same binding power, depending largely on
political commitment. However, Brexit does not result in an
international legal vacuum. The UK is bound by a series of United
Nations (UN) and International Labour Organisation (ILO) treaties. The
problem is that these commitments are almost completely ignored in
UK legal and political discourse. There are differing opinions on the
role of international law in UK domestic courts. The UK is a dualist
system, meaning that an Act of Parliament is necessary to give
domestic effect to the treaty. The orthodox position is that the
unincorporated treaty is non-justiciable and cannot be given direct
effect in domestic law.20

21 The core UN treaties all protect a robust right to work. Every person
has a right to gain a living by work, to form and join trade unions and to
strike. 21 The UK has an obligation to ensure just and favourable
working conditions: fair remuneration that allows for a decent living,
equal pay for work of equal value, safe and healthy working conditions,
opportunities for training and promotion, limitation of working hours,
holidays with pay and rest and leisure.22

22 The status specific treaties go a step further and protect aspects of

labour crucial to different identity groups. The Convention on the

20
J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418.
21
Article 6, 8(1)(a),(d) International Covenant on Economic, Social and Cultural Rights 999
UNST 3 (entered into force 3 January 1976] (ICESCR); Article 5(e)(i), Convention on the
Elimination of Racial Discrimination 660 UNTS 195 (entered into force 4 January 1969)
(CERD); Article 11(1)(a), (c) , Convention on the Elimination of All Forms of Discrimination
Against Women 1249 UNTS 13 (entered into force 3 September 1981) (CEDAW); Article
27(1) Convention on the Rights of Persons with Disabilities A/RES/61/106 (CRPD); Article 22,
International Covenant of Civil and Political Rights 999 UNTS 171 (entered into force 23
March 1976).
22
Article 7, ICESCR.
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 Elimination of All Forms of Discrimination Against Women guarantees
women’s equality in all aspects of employment and specifically requires
the UK to prohibit pregnancy discrimination, to introduce maternity
leave with pay and to promote child-care facilities to enable parents to
combine family and work responsibilities. 23 The Convention on the
Rights of the Child protects children from economic exploitation and
from work that interferes with children’s health and education. 24 The
Convention on the Rights of Persons with Disabilities requires the UK
to prohibit disability discrimination, promote employment opportunities
for disabled people and ensure reasonable accommodation in the
workplace.25

23 The UK has ratified several ILO treaties on various aspects of labour

law including child 26 and forced labour 27 , discrimination 28 , minimum
age 29 and freedom of association, 30 collective bargaining 31 and equal
remuneration.32

24 It is abundantly clear that the UK is in breach of international law if it

does not uphold its treaty commitments. But at domestic level, little or
no weight is given to this fact. There is a multi-faceted and
sophisticated accountability procedure at both the UN and ILO which
allows civil society organisations and individuals to hold the UK to
account for its obligations. However, the recommendations from these

23
Article 11(1) ,(2), CEDAW.
24
Article 32(1), Convention on the Rights of the Child 1577 UNTS 3 (entered into force 2
September 1990) (CRC).
25
Article 27, CRPD.
26
C182 Worst Forms of Child Labour Convention, 1999 (No. 182).
27
C029 Force Labour Convention, 1930 (No. 29); C105 Abolition of Forced Labour
Convention, 1975 (No. 105).
28
C111-Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
29
C138 Minimum Age Convention, 1973 (No. 138).
30
C097 Freedom of Association and Protection of the Right to Organise Convention, 1948
(No.87).
31
C098 Right to Organize and Collective Bargaining 1949 (No. 189).
32
C100 Equal Remuneration Convention 1951 (No. 100).
Page 14
procedures still depend on political good will to be implemented in the
UK. This is in stark contrast to the ability of individuals to use directly
effective provisions of EU law.

Page 15
Specific Recommendations

25. Any Brexit negotiations should include a strong provision of non-

regression in relation to the social rights currently protected by EU law.
This would be consistent with existing and ongoing international
commitments. The temptation to repeal specific UK legislation
protecting social rights, following the coming into force of the proposed
Great Repeal Bill, should be resisted.

26. Our existing commitments in international law in relation to social rights

should be domesticated. This entails preferably national implementing
legislation (subject to devolution issues). In addition, courts should
develop the common law and interpret legislation in compliance with
international obligations. Lord Kerr is pioneering a new approach
specifically in relation to human rights. He argues that there are three
ways the treaty can enrich domestic law: as (i) an aid to statutory
interpretation; (ii) an aid to the development of the common law; and
(iii) a basis for legitimate expectation.33 Lord Kerr persuasively states
that if the government has ‘committed itself to a standard of human
rights protection...it should be held to account in the courts as to its
actual compliance with that standard.’34

27. The scrutinising function of the JCHR should become even more
important as regards the protection of these rights, especially in the
absence of an EU scrutiny committee in the House of Lords.

28. The EU should continue to be a source of inspiration for future

Parliamentary legislation, particularly as regards further developments
in the field of social rights. Moreover, judges should take notice of
developments in EU law, just as they currently do with Commonwealth

33
R (SG & Ors) v Secretary of State for Work and Pensions [2015] UKSC 16 [235]
34
ibid.
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law and other comparable jurisdictions (which has included Civilian
jurisdictions).

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