What Brexit means for our human rights – are they under imminent threat?

2nd February 2017 - 12 minutes read


Overview of The Human Rights Act 1998:-

The Human Rights Act 1998 (the Act or the HRA) sets out the fundamental rights and freedoms that everyone in the UK is entitled to.

In practice, the Act has three main effects:

  1. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. This means that if your human rights have been breached, you can take your case to a British court rather than having to seek justice from the European Court of Human Rights in Strasbourg, France.
  1. It requires all public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and other bodies carrying out public functions to respect and protect your human rights.
  1. In practice it means that Parliament will nearly always seek to ensure that new laws are compatible with the rights set out in the European Convention on Human Rights (although ultimately Parliament is sovereign and can pass laws which are incompatible). The courts will also where possible interpret laws in a way which is compatible with Convention rights.

The Government’s desire to repeal the HRA 1998:-

In the 2010 election, replacing HRA 1998 with a British Bill of Rights was a Conservative Party manifesto commitment. This pledge was reinforced in the 2015 election manifesto.

Within the Conservative Party whilst there is support for effective human rights safeguards for the UK there is less support for the European Convention of Human Rights forming the basis of British human rights protection.

Since winning the 2015 election, the Conservative government has undertaken a review of HRA 1998 and what a BBoR might look like. This built on some work carried out by Chris Grayling when he was Lord Chancellor under the previous coalition government, but the principal architect of the current review was former Justice Secretary Michael Gove. It seems clear that prior to the UK referendum on membership of the EU, Mr Gove’s Ministry of Justice (MoJ) was poised to introduce new proposals for a BBoR. In light of the EU referendum and Gove leaving the MoJ, there was an assumption that repeal of HRA 1998 was now on the back burner. However, the new Secretary of State for Justice and Lord Chancellor, Liz Truss, has made it clear that a BBoR is a manifesto commitment and that it is her third priority as Secretary of State for Justice.

The impact of Brexit:-

It is worth highlighting from the start that the UK’s withdrawal from the EU will not automatically affect the UK’s status as a signatory to the European Convention on Human Rights (ECHR).

It therefore remains binding on the UK, as well as on all European Countries save for Belarus, and including all 28, soon to be 27, EU Member States. It provides protection in respect of a number of human rights which I had thought, until very recently at least, most people in the UK would agree were pretty fundamental: the right to life; not to be subjected to torture; free speech; fair trial; freedom of religion etc.

British citizens will therefore still be able to rely on their rights in the ECHR both before the domestic courts and the European Court of Human Rights (ECtHR).

The protection of these rights may, however, be subject to change arising out of Government plans to consult on repealing the Human Rights Act and replacing it with a Bill of Rights. Although there is no official proposal in this regard, scepticism about the ECHR is at a similar level (or higher) to that of the EU and would be the next logical target for Euro-sceptics. The timeline for any Bill of Rights consultation and proposals are likely to be influenced by the mammoth and complex task of the UK trying to identify and uncouple itself from any EU laws it now deems surplus to requirements. It is also likely to have to wait until any further Scottish independence referendum.

Essentially the HRA 1998 is not linked to EU membership and therefore Brexit, in theory at least, makes little impact. However, if or when the UK does leave the EU, this will mean that the EU Charter of Fundamental Rights of the European Union is no longer available to people in the UK. This will be a significant loss in terms of human rights protection and more importantly enforcement of human rights in the UK.

The EU Charter mirrors the rights found in the ECHR but also gives some additional rights. It binds the EU and its institutions, as well as EU Member States when ‘implementing Union law’. The UK has opted out from certain bits of the Charter but where the Charter does apply, it has primacy as far as the interpretation of EU law is concerned. In cases where the Charter provides for stronger protection than the ECHR (such as children’s rights), then these rights will be lost when the UK does withdraw from the EU.

Free movement of persons remains, for now, a legal right of UK citizens as members of the EU. The withdrawal negotiations will need to reach agreement on the right of British people to travel and work in the EU, and the counter right of EU nationals to do the same in the UK.

Finally the EU has been active in a number of human rights protections including, as was continually stressed, employment and anti-discrimination law. Many of these protections, such as non-discrimination on the basis of race, sex, sexual orientation, religion, disability, and age, have been incorporated into UK law by the Equality Act 2010. Brexit will mean the EU law basis of these rights will disappear but it would not change the Equality Act or other UK legislation such as the Working Time Regulations. However critics argue that if Parliament wanted to weaken such employment rights, Brexit makes it much easier to do so, given EU minimum standards of protections would no longer provide an ‘annoying’ backstop to any changes.


Will the UK leave the European Convention of Human Rights?

An unwillingness on the part of the UK government to withdraw from the European convention on human rights has, up until now, been the major protection of the human rights settlement in the UK – we cannot sign up to a human rights regime internationally and yet deliver a lesser level of domestic protection. That would put the UK in breach of its international obligations.

Crucially, that unwillingness to withdraw has now gone. In consequence the UK settlement is seriously at risk, and the adherence of the world to human rights is in danger of being reduced by the UK signalling a massive reduction in its international commitment to human rights. Those who think leaving the convention would be disastrous should not be lulled into a false sense of security because the government has signalled it will not pursue leaving the convention until after Brexit is sorted.

That’s about the when, not the if. Brexit has changed the political landscape and suddenly made leaving the convention doable.

Theresa May has been absolutely clear she does want to leave the convention: “The [convention] can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals, and does nothing to change the attitudes of governments like Russia’s when it comes to human rights.” Although this statement is incorrect it does not appear to diminish May’s enthusiasm for leaving the convention.

If a country is not committed to an international set of human rights, then there is no fetter on the government of that country in declaring what its view of human rights at any time is – and, in consequence, reducing individual protection. While the rulings of the European court of human rights do not bind either our courts or our parliament, they provide an independent and authoritative standard against which the conduct of a government can be measured.

If the UK leaves the convention, the government will be free to pick and choose the human rights it grants its citizens. As Russia does. No doubt it would be more generous in the rights given, but the key interest human rights are designed to protect the citizen from is the interest and activity of the executive. And if the executive is unfettered in determining what those rights are, because in the UK the executive largely controls the Commons, then there can never be effective protection.

During the Tory leadership campaign May said pulling out of the convention was not something she could pursue in this parliament because of a lack of a parliamentary majority. But she didn’t abandon her long-held Home Office tutored policy preference.


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