Blog: Human Rights Protection in the UK Since Brexit

As we pass the 10-year anniversary of the UK voting to leave the European Union ('EU'), this month’s blog post reflects on whether the UK Government has kept its commitment not to weaken substantive human rights protection and examines how human rights protection has changed in the UK. What is evident is a gradual fragmentation and dis-entrenchment of rights protection in the UK, alongside subtle changes to certain rights protected or introduced via EU law such as data protection and equality rights.

This blog post begins by setting out the background regarding EU fundamental rights protection before examining the reduction in substantive rights, the weakening of remedies and enforceability and the resulting fragmentation of rights protection across the UK since Brexit.

Background: EU Fundamental Rights Protection

As the name suggests, the European Economic Community established in 1957—the precursor to today’s EU—was largely silent on the protection of fundamental rights. By way of contrast, the Council of Europe emphasised human rights protection having adopted the European Convention of Human Rights ('ECHR') in 1950. Fundamental rights gradually gained greater prominence within the EU legal order and are now ‘foundational’ to today’s EU (see Article 2 TEU). A key moment occurred when the EU Charter of Fundamental Rights (the 'Charter') became binding and gained constitutional status within the EU legal order following the Treaty of Lisbon’s entry into force on 1 December 2009. EU fundamental rights have historically been protected through a variety of sources, including judicially developed general principles of EU law, the EU Treaties and EU secondary legislation. One of the Charter’s main contribution was to make existing rights protection more visible.

Loss of Substantive Rights

When the UK left the EU, the UK Government made assurances not to weaken substantive human rights protection. Yet, the UK Government also excluded the Charter from those EU and EU-derived laws preserved as part of domestic law in the UK post-Brexit by the EU Withdrawal Act 2018. The UK Government initially justified this decision on the grounds that general principles of EU law had instead been saved as part of UK law. As many general principles protect the same rights as those in the Charter, saving both sources may have been duplicative. Saving only general principles would have amounted, if not to a loss of substantive rights, then at the very least to the removal of a codified and visible expression of those rights. However, the Retained EU Law (Revocation and Reform) Act 2023 then went on to remove general principles of EU law from the UK statute book as well as rights protected under the EU Treaties or in unimplemented directives.

Human rights protection in the UK is still guaranteed by the Human Rights Act 1998, which incorporates the rights found in the ECHR. However, the protection offered by EU fundamental rights and the ECHR is not always the same. The effectiveness (discussed below) and scope of the Charter and the ECHR differ. Under the Charter, there are freestanding rights to human dignity, the right to life, the right to integrity of the person and an express prohibition on trafficking. Distinct protection foregrounds the importance of such rights and can lead to novel applications (see AT). Additional rights going beyond those in the ECHR are also found in the Charter including the right to a fair trial beyond criminal cases, a right to good administration, as well as socio-economic rights such as a right to annual paid leave, to social security, to healthcare and to environmental protection.

Important differences also exist in the interpretation of corresponding rights between the European Court of Human Rights (‘ECtHR’) and the Court of Justice of the European Union (‘CJEU’). Case law of the ECtHR provides a floor for any interpretation by the CJEU, and the ECtHR operates a presumption that the EU ensures equivalent protection of rights (see Bosphorous). However, there is nothing to prevent interpretations of the EU Charter, or of rights found in EU law more generally, leading to more extensive protection. Notably, the CJEU first recognised a right to be forgotten (see Google Spain, para 97), provides for more generous rights of residence for family members (see, e.g., Shah), and requires a potentially higher threshold to attempts to deport seriously ill persons (see X v Staatssecretaris van Justitie en Veiligheid).

Importantly, EU fundamental rights standards do not only stem from the Charter, although the Charter will often guide interpretation. During the UK’s membership of EU, the EU legislature increasingly introduced fundamental rights standards that the UK was then required to comply with. There are several areas where EU legislation led to changes in the UK legal framework. For instance, the Modern Slavery Act 2015 was adopted to implement EU trafficking law, leading to the creation of new offences and the strengthening of penalties. Similarly, a duty to provide support and accommodation to prevent the destitution of persons seeking asylum was introduced in order to comply with EU law.

Dis-Entrenchment and Weakening of Rights

Leaving the EU has also meant dis-entrenching rights protection in the UK. In other words, the rights may still exist, but their protection is less effective. National courts are required by EU law to interpret domestic legislation consistently with EU fundamental rights. Where a rights-compatible interpretation is not possible—and here is the key difference from the Human Rights Act—EU law requires the disapplication of inconsistent national law (see Benkharbouche). By contrast, breaches of the ECHR only lead to a declaration of incompatibility under section 4 of the Human Rights Act, which the Government may decide not to remedy. The CJEU also requires the effective protective of EU fundamental rights which can require damages far higher than the possibility of ‘just satisfaction’ under the ECHR and Human Rights Act 1998. A practical effect of Brexit has thus been to remove the quasi-entrenched protection of certain rights in the UK.

One implication of Brexit is that the UK is no longer required to adopt new EU rules. As a result, the UK is falling behind the EU in some respects as the EU has recently strengthened protections against trafficking as well as the rights of persons seeking asylum and to equal treatment. A roll-back on certain rights is also now evident that would not have been possible during the UK’s membership of the EU. Removing the supremacy previously attracting to EU legislation has led, for instance, to the duty to provide accommodation and support to people seeking asylum who would otherwise be destitute being reduced to a discretionary power. Similarly, the proposed Immigration and Asylum Bill limits the duties to provide assistance to survivors of trafficking, including to child victims.

In not saving the Charter and only saving general principles as an aid to interpretation (before later removing such principles), the possibility of relying directly on certain EU law rights before domestic courts has been reduced. New CJEU case law is no longer binding on domestic courts and higher courts can depart from pre-Brexit case law of the CJEU. Where the CJEU has adopted more expansive interpretations of EU fundamental rights post-Brexit, domestic courts may choose to take such jurisprudence into account but are no longer bound to follow such decisions. Illustrating how UK courts may now be falling behind, the UK Supreme Court decision in For Women Scotland on the rights of trans persons is arguably incompatible with the CJEU’s recent decision that to ‘tolerate discrimination based on the difference between biological sex and gender identity would be tantamount, as regards a transgender person, to a failure to respect the dignity and freedom to which he or she is entitled’ (see Shipov, para 54).

Fragmentation of Rights Protection Across the UK

Divergence between EU and UK rights protection has also increased fragmentation across the nations of the UK. This can undermine the universalising claims that accompany human rights and place further pressure on the UK’s devolution framework. In this context, Northern Ireland is legally distinct because the Charter continues to underpin parts of the post-Brexit settlement, both through the interpretation and effects of the Withdrawal Agreement and the Windsor Framework and through the non-diminution clause. The non-diminution clause requires the UK to ensure that withdrawal from the EU does not reduce rights, safeguards or equality of opportunity set out in the Rights, Safeguards and Equality of Opportunity (‘RSEO’) part of the 1998 Belfast/Good Friday Agreement, including rights derived from EU equality directives.

The distinct legal position of Northern Ireland means that many of the concerns outlined above do not affect Northern Ireland in the same way. EU case law relating to equal treatment continues to apply in Northern Ireland, provisions of the Illegal Migration Act 2023 have been disapplied for being incompatible with the Charter, and the impact of the UK Supreme Court For Women Scotland decision is being considered (see R(Equality Commission Northern Ireland)). While the UK Supreme Court decision in Dillon has limited the extent of the potential divergence, the position of Northern Ireland may become increasingly detached from that of the rest of the UK whilst also highlighting and compounding the diminution of rights protection elsewhere in the UK.

Conclusion

The consequences of leaving the EU for fundamental rights in the UK are not clear cut and involve the interactions between overlapping and often mutually reinforcing regimes. Nevertheless, the UK Government’s position that substantive human rights protection would not be weakened by Brexit is increasingly difficult to defend.

The wide array of substantive rights once visibly collected in the Charter may be located elsewhere in UK law, but they are now protected less extensively and less intensively. At a time when fundamental rights in the UK are increasingly threatened and when political parties are proposing to abolish key legislation such as the Equality Act 2010 (see the Immigration and Asylum Bill introduced into the House of Commons on 30 June 2026, as well as policies of both Reform and the Conservatives), the UK’s departure from the EU only makes such moves easier. Brexit has left rights protection in the UK more fragile, more uneven, and more politically exposed.

This blog post was prepared with contributions from members of our legal team including: Emily Hancox, Unkha Banda and Emily Soothill. It is for general information and is not intended to be used as legal advice.