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ViewsAugust 22nd, 2016
In his third guest article, Michael Imperato looks at what Brexit will mean for human rights legislation in the UK.
While it was the economy, sovereignty and immigration that dominated debate during the Brexit campaign, the then home secretary Theresa May explained that she wanted to “remain” while getting out of the European Convention on Human Rights (ECHR). The convention, she insisted, added, “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”.
On our departure from the EU, the UK will continue to be subject to Strasbourg ECHR rulings and we will still have the Human Rights Act.
It is important to avoid confusing the European Union (and its Court of Justice) with the European Convention on Human Rights and the European Court of Human Rights. The Convention is a treaty independent from the EU. It is binding on 47 countries (including all the EU’s 28 Member States) and provides for the protection of a number of human rights, such as the right to life; the right not to be subjected to torture; free speech; fair trial rights; the right to property; freedom of religion, and so on.
Most of the rights in the ECHR are applicable within the UK by virtue of the Human Rights Act (HRA) and not because they are part of EU law. Many of the human rights judgements considered controversial originated in the ECHR, such as the judgements on prisoner voting and on the deportation of Abu Qatada to Jordan.
However, there is the question of the EU Charter of Fundamental Rights which contains many of the rights found in the convention plus other economic and social rights: where it provides for stronger protection than the convention (notably, children’s rights). These rights will be lost due to Brexit. The Charter is binding on the EU and its institutions and thus constrains their ability to legislate or to conclude international agreements. It would no longer be binding on the UK and could no longer be relied on before UK courts post-Brexit.
The UK government’s commitment to repeal the HRA is not going to lessen. Brexit, technically, has no direct application to human rights, but it may as well have. As Sir Paul Jenkins QC, a leading human rights barrister at Matrix Chambers, told the Law Society Gazette, “ … the political reality is that if the public saw a (Brexit) vote to leave as a step towards reclaiming our independence as a British nation, why wouldn’t they at the same time want to reclaim our independence on Strasbourg?”
It was Winston Churchill who, in the aftermath of the Second World War, called for a European charter of rights and freedoms to be drafted, alongside his calls for a united Europe. British lawyers were prominent when it came to drafting the original provisions of the ECHR. With the British exit first from the EU and next a possible withdrawal from the ECHR, Churchill’s vision will be wholly undone. A final and fatal blow would be struck on our existing political and legal ties between the UK and European institutions.
