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Great Repeal Bill will axe the right to health and safety

(8 Posts)
abilockhart Sun 18-Jun-17 12:43:01

The government’s proposal not to maintain the fundamental rights charter means that after Brexit it will not be possible for a UK judge to use article 35 or other charter rights when interpreting UK laws that have derived from the EU.

These include laws to protect public health such as on pesticide residues in food, health and safety at work, management and disposal of hazardous substances, regulation of medicinal products, and air and water quality. The change will considerably weaken the ability of judges in future to uphold the law if it is challenged by industry in the courts.

From the British Medical Journal:

The fundamental right to health in the UK will be lost if the government proceeds with its plan not to convert the EU Charter of Fundamental Rights into UK law, as announced in the white paper on the Great Repeal Bill.

The value of this charter was shown last year, in both EU and UK courts, when the tobacco industry unsuccessfully challenged the new rules on plain packaging of cigarettes. One of the industry’s arguments was that the rules violated its rights. Both the EU Court of Justice and the High Court in London used the right to health in article 35 of the charter as a counter weight to that argument. Mr Justice Green made the strongest judicial statement yet in the UK on this critical point:

[Tobacco regulations] are health measures. This is an area of legislative activity to which immense importance is attached and legislatures and decision makers are habitually accorded a wide margin of appreciation. Health is recognized as a fundamental right. Article 35 of the Fundamental Charter identifies access to health care as a fundamental right but also [original emphasis] makes a statement as to the weight to be attached to this right, namely “high.”

prh47bridge Mon 19-Jun-17 18:14:56


To quote the white paper, "The Government’s intention is that the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK. Many of these underlying rights exist elsewhere in the body of EU law which we will be converting into UK law. Others already exist in UK law, or in international agreements to which the UK is a party. As EU law is converted into UK law by the Great Repeal Bill, it will continue to be interpreted by UK courts in a way that is consistent with those underlying rights. Insofar as cases have been decided by reference to those underlying rights, that case law will continue to be relevant. In addition, insofar as such cases refer to the Charter, that element will have to be read as referring only to the underlying rights, rather than to the Charter itself."

abilockhart Mon 19-Jun-17 22:26:06

So prh47bridge, you are accusing the British Medical Journal of scaremongering?

prh47bridge Tue 20-Jun-17 09:21:54

No, I am accusing the writers of that article. This is typical of the rubbish that is put out by those who want to scupper Brexit (and I say that as someone who voted Remain myself).

The article clearly misrepresents the judgement in the British American Tobacco & others v Department of Health case. The writers are clearly suggesting that the government would have lost were it not for Article 35 of the EU Charter of Fundamental Rights. However, the writers carefully fail to mention that this only came into play because the tobacco industry was trying to argue that the packaging regulations were in breach of the EU Charter of Fundamental Rights and other EU laws.

Once we leave the EU businesses will not be able to attempt to use EU law to override UK law. The tobacco industry would have been unable to use its arguments around EU law as EU law would not apply here. That accounts for around half of the arguments they put forward. In particular, they would not have been able to advance arguments based on the EU Charter of Fundamental Rights. There would be no need for the courts to use article 35 to counter arguments related to the Charter of Fundamental Rights. And article 35 is entirely irrelevant to the other arguments that were put forward. Looking at the full judgement (which runs to 386 pages) it is clear that taking EU law out of the equation would have removed the tobacco industry's strongest arguments and made the outcome even more certain. It would not have undermined the government's case at all.

The writers of the article have either fundamentally misunderstood the judgement in this case or they are deliberately misrepresenting it. Given how deep they have gone into the judgement to find the bit they have quoted, I can only conclude that they are deliberately misrepresenting it.

7461Mary18 Tue 20-Jun-17 10:24:26

I agree with prh (and I know a fair bit about that case). Also the tobacco companies were challenging new UK (not EU) regulations requiring packets to be plain. They failed.

I think it is particularly bad example of the point. The UK has had world leading health and safety legislation for decades, since well before the EU came along.

Although it is going to be very complicated indeed to leave it is unlikely we will be left without adequate health and safety laws.

abilockhart Tue 20-Jun-17 10:59:45

No, I am accusing the writers of that article. This is typical of the rubbish that is put out by those who want to scupper Brexit (and I say that as someone who voted Remain myself).

The BMJ, British Medical Journal, is a peer-reviewed medical journal and is one of the world's oldest general medical journals

Of course, if you want to dismiss it as rubbish, that is your prerogative.

PatriciaHolm Tue 20-Jun-17 11:04:42

The bottom of that article explicitly says "not externally peer reviewed".

prh47bridge Tue 20-Jun-17 11:35:09

As PatriciaHolm says, this is not a peer reviewed article. It is an opinion piece. It would not pass peer review by a lawyer because, as both I and 7461Mary18 point out, it seriously misrepresents the tobacco industry case.

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